Testing times for democracy

A week for democracy; a test not only for our democratic institutions but for the dynamic between the rule of law, human rights and the democratic will.  The awful events in Westminster, Manchester and most recently in London have overshadowed this election and put the parties to their mettle to react. In an election the time for reaction is short and may be influenced by the election campaign itself.

At one time a Tory victory was assured. Thus anything Theresa May has said has looked to be destined as the policy of the next Government with a substantial majority.  That proved to be wrong.  The events during the campaign highlight once again the issue of the continuing effect of the European Convention for Human Rights and the jurisdiction of the European Court for Human Rights.

All main parties are committed to the retention of the Convention. It might have been expected that the Tories would have returned to the theme of replacing the Convention and the Human Rights Act with a “British Bill of Rights”.  This has been a theme of Tory thinking on human rights for many years but more recently the Government has backed off from pressing the proposal. It was indeed a proposal that met with wide condemnation and in any event was proving problematic to put into practice. The Tory manifesto confirmed that, effectively, all Governments are committed to the Convention.

It was not however a central part of any party’s campaign and was barely raised until the events in Manchester and London. Now it’s back in the limelight. From May the message is simply that in fighting terrorism the Government will not allow the Convention or the Human Rights Act to stand in its way. Publicly this has been interpreted as raising again the possibility of the UK resiling from the Convention. Perhaps in addition the underlying theme is that the UK will not allow European judges in Strasbourg determine how we protect ourselves. Labour, headed on the issue by Shami Chakrabati, reacted strongly saying that it stands by the Convention.

It is Article 8 of the Convention which is the most quoted Article in relation to policing and deportation. The rights in it also appear at Article 7 of the European Charter.

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

As one can see it already has within provision for national security issues. Further Article 15 provides for possible derogation from the Convention in times of emergency. The UK and Ireland have both sought to derogate in relation to events in Northern Ireland and the UK more lately in relation to the threat of terrorism.

I do not need to make the arguments for the Convention here, they are well rehearsed.  Whilst a gut reaction of some politicians and many of us may be to seek to sweep away human rights legislation if it can be said that it stands in the way of ensuring events like Manchester and London never happen again, a more measured approach needs to be taken and more care in assessing what part the legislation takes in these events.

We have a minority Government only able to pass legislation with the agreement of the DUP but we can expect that the state of the World will continue to press on not just this issue of human rights but in many walks of solicitors’ practice. In particular the issue of legal professional privilege will continue to be the source of much regulatory litigation over the coming years.

Hopefully the profession can fully participate in a measured debate not only on human rights and the rule of law but in all areas of the law likely to be affected by the new counter-terrorist World.

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