. . .or all I want for Christmas is someone to tell me why we are returning
to a situation where laws are not made in parliament but by 'legal precedent'
- also known as common law, tradition, custom and blind prejudice!
In case you have not heard the European Human Rights Convention, circa 1951, has been wafted into British law on the back of a bill of incorporation presented by the Lord Chancellor, Lord Irvine, to the House of Lords.
After discussion by this august, unelected body, the Bill of incorporation has been passed by both Houses with the unseemly haste of a Don Juan leaving a lady's boudoir by the window when her husband returns. A picture which might bring back nostalgic memories for some members. Am I just ultra cynical, but discussions on what should happen to the House of Lords and what if anything should replace it were not scheduled until AFTER they had handled this particular hot potato!!
What is wrong with having a Human Rights Convention?
Nothing; except when it can be used to introduce laws which have never been subjected to due democratic process. For years MPs on both sides on the house have avoided introducing a Privacy Bill, not that they don't want it - they do - there are probably even some who pray on bended knee every night such a Bill will be introduced before their particular scandal becomes public.
The simple truth is that any government introducing a privacy bill is almost guaranteed to lose the general election which follows (be it one, two or five years after). Why? Because over the past few years there has been a succession of scandals involving politicians - sexual, drink, financial and political sleaze - you name it and our human politicians have managed to prove they are only too human. Any government introducing a privacy bill would be seen by the electorate as wanting to hide its dirty linen.
Article 8 of the Convention says 'everyone has the right to respect for his private and family life, his home and his correspondence'. In theory there is value to Article 8, but in practice it is open to abuse. By incorporating the entire script of the Human Rights Convention into British law, the normal democratic process of scrutiny and discussion on every section of a law is side-stepped as are the arguments that could be levied against such a loosely worded clause in both Houses of Parliament, in Parliamentary Committee, by Civil Liberties organizations, by the general public and not least in the media.
The government has stated they will 'leave it to the judges' to make decisions when cases are brought before them, creating 'a common law'. Judges might be competent to interpret or define the law, that is a law which is on the statute books. By leaving the judges to create legal precedent on an unwritten law, the government has very adroitly avoided the hot potato of introducing a privacy law which because of past scandals the general public might have seen as MPs protecting their own backsides.
In this country the judges are PART of the law making process and the Law Lords, appointed to and sitting in the House of Lords, are part of the democratic parliamentary process. Leaving judges to create 'precedent' in their courts, based on the European Convention of Human Rights throws the democratic process out of the window and allows judges to be makers and interpreters and dispensers of the law; re-introducing a system that allows the making of laws to be at the mercy of the personal prejudices and opinions of one person. This system of idiosyncratic law making and dispensing was thrown out on two occasions, once at Runnymede when the Magna Carta was signed and again, more completely, when we adopted a Constitutional Monarchy in preference to a Divine Monarchy.
The present Lord Chancellor, Lord Irvine (who is shepherding the European Human Rights Convention through Parliament) made his views known in a recent interview in which he supported the idea of 'prior restraint', i.e. a system which might mean newspapers and other media needing to get an official 'okay' before publishing some stories. There are probably a few recent stories, some perhaps even featuring Lord Irvine, that might well have received an official 'NO' and the general public would then have been left in ignorance of questions surrounding the expense of refurbishing a particular official residence and the alleged 'ransacking' of national art treasures from galleries in Scotland for the embellishment of that same residence. Many politicians in the cabinet, including the Prime Minister have distanced themselves from the Lord Chancellor's comments, but have not seen fit to question the introduction of the Human Rights Convention which would allow such an opinion to become a legal precedent. This is not a case of setting a poacher to catch a poacher, but of asking a poacher to catch himself.
The democratic system can be criticized and held up to ridicule, however, its one great benefit is the number of people involved in any democratic decision. Such a decision does not rely on the integrity, probity or even sound digestion of one person, but on many. Put very bluntly democracy means that with so many people taking part in any decision it is unlikely that all involved could simultaneously be bribed or have their thought processes short circuited by a dodgy stomach.
A privacy law is rarely needed by the ordinary person, but is often demanded by the well known personality, whether politician or not, in order to keep from public knowledge information that might cause them to be seen in an unfavourable light. The courts will not be inundated by Joe and Jane Doe bringing actions against 'The Local Weekly', but there will be cases of Mr or Mrs Personality suing 'The National Daily'. These decisions for a minority will make a law the majority have to live by and which will not have seen the light of parliamentary and public discussion which normally accompanies the introduction of any new law.
Politicians across the political spectrum fear they will be seen as wishing to cover up 'sleaze' by introducing a Privacy Bill, so we, the British public, are to be left at the mercy of law formed by precedent. This may well gag reputable newspapers, magazines, television and radio, thereby depriving the public of a means of being an informed electorate - it was only through investigative journalism by The Washington Post that 'Watergate' was exposed. It will not stop the less reputable members of the media from publishing the sexual peccadilloes of the 'great and good'.
The British media currently work under a system of 'self regulation', i.e. it is up to the editor or editorial board to decide whether a story should be published or whether publishing would be harmful. There are also 'D' notices by which government can 'kill' a story before publication, or the injunction such as Jack Straw so recently tried to use, if an item is deemed to endanger national security. When the media was not such an interrelated affair this system worked well, the multiplicity of personalities and loyalties of owners, editors and editorial boards ensured the public could be made aware of important issues or stories, maybe even of a sexual sleaze nature, which might call in to question the judgment or decision making capabilities of the 'great and good'. Perhaps what is needed more than a privacy law is a return to the individual ownership of newspapers and other media, maybe even a law which limits ownership potential of individuals or groups in cross media/cross publication investment. At present well over half and possibly as high as 75 per cent of newspapers in this country come under ownership of two groups, and these have substantial investments in other media such as television.
A government which allows a country's media to become monopolized by a few endangers democracy.
Where the media of a country including television, newspapers, magazines, etc are owned by one or two individuals or groups there is a danger the public will be denied a balanced view of all current affairs, as there will be a great temptation for the monopoly holders to push their own particular agendas and opinions. Combine the monopoly stakes in our media with the introduction of a 'back door' privacy bill reliant on subjective judgments of individuals and the door is wide open for democracy to beat a hasty retreat as tyranny or dictatorship make their entrance.
Such a privacy bill will be formed by 'legal precedent' or common law; or call it: tradition, custom and blind prejudice!
If you belong to a minority religious or racial group, are a woman or disabled YOU KNOW that unfair or unequal tradition, custom and blind prejudice are more difficult to combat than a law written in the statute books. Laws which have been introduced by Parliament can be challenged legally. Since the introduction of the Equal Opportunities Act it has become possible for someone to challenge at Tribunal statements such as: 'you didn't get the job because you are black / catholic / Jewish / female / homosexual'. Prior to the introduction of the EOA there was no legal machinery to combat such ignorance and prejudice.
Through 'incorporating' the European Human Rights Convention into British Law in the way that is planned, the general public may well be denied the right to know who and what they are voting for and they will definitely be denied the right of challenge of what could easily become an unfair and unequal law.
Ieke, mcij, maip
Member, Association of Internet Professional
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