Thursday, August 23, 2007

Human Rights Act suffers in Conservative led propaganda campaign against individual rights

European Commission Human Rights legislation, better known as the ECHR Act, is coming in for the usual criticism from the miscreants of society, who are not happy that individuals are able, on occasion, to thwart the view & procedures of institutions or unaccountable self regulating public bodies who are generally accepted as being the greatest abusers of Human Rights in the UK

David Cameron & the Conservative Party, are mostly, against ECHR, blaming many of the ills currently suffered by the Justice system, both north & south of the border on the Act, citing many cases where convicts have been able to hold Government and the law 'hostage' to the alleged whim of convicted criminals.

However, as those of us who actually are able to use ECHR legislation know, these cases only ever get to court because there are elements of the legal profession who are seeking out such cases to use - not particularly for the betterment of sleep at night, mostly because of course, it's in the interest of their client to pursue such action, and certainly in the interests of claiming legal aid from the state to do so.

Remember that not many individuals are actually able to pursue an ECHR case on their own (are there any ?) - usually this requires legal representation, and lots of it, which many have already charged is being restricted by the legal profession's monopoly on access to legal services .. leaving critics of ECHR in a somewhat conundrum of who to apportion blame to ...but common sense would say it's those who are abusing human rights legislation by making far too much money out of it ...

The Scotsman reports :

Why we all have a right to a little common sense


IT HAS the ability to ignite passions like almost no other piece of legislation passed in recent decades, inspiring both furious opposition and resolute defence. Once again, this week the Human Rights Act has exploded into the headlines with percussive force, reinvigorating heated arguments about the way our society treats those who break its laws, and those who fall victim to their crimes.

For those who feel the balance has tipped too far in the direction of the offender, there was some comfort. In Edinburgh, the appeal court reversed a lower court's ruling that a prisoner's human rights were violated by an automatic message applied to his telephone calls from jail, telling recipients the call came from a prison.

But in London, the pendulum appeared to swing the other way. The focus there is the case of Philip Lawrence, a headteacher stabbed to death 12 years ago outside his school. Mr Lawrence's killer, Learco Chindamo, is an Italian citizen and ministers want to deport him to Italy when he finishes his jail term, which could be as soon as next year.

Chindamo's lawyers argued that deportation could violate his rights under the act, as well as breaking European Union laws.

An immigration tribunal accepted the argument, agreeing that returning 27-year-old Chindamo to Italy - a country he left at the age of six - would break both EU law and compromise his human rights.

The judgment was a spark in a political tinder-box. The government quickly announced it will appeal against the verdict, and let it be known it considers Chindamo to pose a threat to public safety.

David Cameron, the Conservative leader, went one further, re-stating Tory plans to tear up the act, which has become a bête noire to many in his party and beyond.

For its opponents, the act forms part of an unholy trinity of totems of modern British life. Alongside "health and safety" and "political correctness", the "human rights" are often invoked as exasperated proof that the world has gone mad.

But exactly what is the legislation that inspires such heated debate?

As explosive devices go, the Human Rights Act 1998 looks pretty innocuous. A bundle of intricate clauses and sub-clauses, it is a masterpiece of parliamentary precision and impenetrability. Its purpose is stated in the driest of legalese: "to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights; to make provision with respect to holders of certain judicial offices who become judges of the European Court of Human Rights; and for connected purposes."

The effect of the act is to incorporate the European Convention on Human Rights (ECHR) into British law. Despite popular misapprehensions, the convention and the European Court are not linked to the EU or Brussels. The ECHR is a separate international agreement drawn up in 1951 and since signed by 46 countries including Russia and Turkey. Incorporation means that British courts can now hear cases which previously would have gone to the European Court in Strasbourg for their final appeal.

While few would want to return to the days when British court cases were ultimately appealed to a court sitting abroad, a growing number of critics fear that as well as incorporating the ECHR into British law, the act also gave judges too much latitude in how they apply the charter's rights.

According to Anthony Browne, director of the Policy Exchange think-tank, the act has frequently been misinterpreted by British courts, with problematic consequences.

"The act has important caveats that relate to the wider national interest and national security, but British judges do not take enough account of them," Dr Browne said.

"The act has opened the door to judicial activism, judges setting themselves up in direct opposition to the legislature and using the law to influence social and criminal justice policy."

David Conway, from the think-tank Civitas, says that public bodies and officials have also contributed to the act's notoriety by applying it either over-zealously or just wrongly. "One problem is the misunderstandings about it by bodies, like prisons, which have led to various people being let out because they think they will otherwise be in violation of the act," he said.

Examples include the release from jail last year of sex attacker Anthony Rice, who was freed partly because the Parole Board and probation officers believed his detention violated his human rights. Nine months later, he killed a woman in Winchester.

A government inquiry later called Rice's release a mistake born of a "misunderstanding of human rights considerations".

The act also sparked an open conflict between Tony Blair's government and the judiciary, when a court last year ruled it would breach the act to deport a gang of airline hijackers back to Afghanistan.

Katie Ghose, director of the British Institute of Human Rights, says the act can be a force for good, arguing that its measures "give ordinary people protection from public bodies which, with the best intentions, can trample over us".

She says that libertarians should actually embrace the act, since it can safeguard basic freedoms: "We should be wary of criminal cases being used to turn us against the idea of human rights for the law-abiding majority. We all have a right to family life, free from unwarranted interference by the state."

But for Ruth Lea, of the Centre for Policy Studies, another think-tank, the very idea of the act is flawed. "It used to be that the law existed to tell us what we could not do, what we did not have the right to do. The Human Rights Act reverses that and creates positive rights, and those rights almost inevitably end up in conflict with one another."

Mr Lawrence's widow, Frances, this week made the same point in emotional terms after the tribunal found that removing Chindamo to Italy would breach his rights as set out in Article 8 of the ECHR, which ensures "respect for private and family life".

"In Article 2 of the Human Rights Act my husband had the right to life," she said in a moving radio interview. "Chindamo destroyed that right yet he has used the legal process to enable him to live as described in Article 8. The act works in his best interest. It is ill-equipped to work in my family or for people in my situation. That seems to me a major conundrum." And on the evidence of this week, it is a conundrum that Britain is no closer to resolving.

WHEN an inmate in a Scottish prison lifts the receiver and phones one of the 20 numbers he has submitted to the governor for prior approval, the call carries a pre-recorded message, stating: "This call originates from a Scottish prison. It will be logged and may be recorded and/or monitored. If you do not wish to accept this call, please hang up."

Twice, the Scottish Prisons Complaints Commission has found fault with the system of applying the warning to all calls, but the Executive has been keen to preserve the policy.

One way of settling the issue was to go to court and, after a lengthy fight to secure legal aid, Stewart Potter, 43, a serial offender currently serving 21 years in Glenochil prison for armed robberies, sought a judicial review and an official declaration that the warning was unlawful and a breach of his European Convention Article 8 right to "respect for his private and family life, his home and his correspondence".

Potter's lawyers said the warning was embarrassing and likely to deter communication with family and friends.

Scottish ministers argued that the impact of the warning on prisoners was minimal, but provided victims or vulnerable witnesses with a safeguard against unwanted calls.

Earlier this year, Lord Glennie ruled in Potter's favour after deciding that there was no authority given to the prison service by legislation to impose the warning as a blanket measure. He said prisoners could be stripped of their rights, such as the Article Eight right, only by statute.

This week, the appeal court set aside Lord Gennie's judgment and ordered a rehearing of the case. The appeal judges said he had fallen into error by concentrating too much on the rights of prisoners and paying insufficient attention to the rights of the recipients of the calls.

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