Human Rights
Thomas Mulley
The modern concept of human rights, as set out by the 1948 Universal Declaration of Human Rights, is widely considered to be the single, dominant ethical idea of the contemporary global age, 1 and, as a result, the implementation of these rights, in both theory and in practice, has become a crucial feature of any state that claims to truly uphold democratic values and moral integrity. Currently, in the United Kingdom, these human rights are enforced in law by the Human Rights Act of 1998, which gives effect to the European Convention of Human Rights in British law, including the requirement that British courts take account of the rulings of the European Court of Human Rights (the Strasbourg-based international court set up to interpret the Convention). This Court has so far been regarded as a necessary safeguard against potential corruptions of the human rights ideal that may occur, and has acted as a guide to British courts in order to prevent them straying outside of the necessary legal confines that this ideal imposes. However, the pressures created by the recent rise inmodern terrorism, and the need for a balance to be struck between human rights and national security measures, has led to some suggestion within British government, most notably by Theresa May, 2 that the restraints imposed by this Court should be abandoned and that greater agency should be granted to British courts and lawmakers. The primary argument for withdrawing from the European Court is largely centred around the idea that the finding of this balance, between untarnished human rights and powerful national security, should be left entirely in the hands of British courts and lawmakers, and that it should not be dictated by an external body thatmay have a tendency to overzealously push themore purist aspects the human rights ideal, may cause unnecessary delays to the British legal process, and that does not directly represent the interests of the British public. When considering this argument, it is important, firstly, to examine the extent to which the ability of the British government and legal system to enact its desires is actually restricted and delayed by the European Court and its rulings, and to what extent this restriction is worth the additional human rights protection that the European Court provides. A clear example of the European Court’s potential to significantly delay domestic court proceedings, and the one that inspired There sa May’s proposal to leave the Convention , 3 can be found in the case of Babar Ahmad and others v. The United Kingdom. This case concerned the extradition of six suspected terrorists from the United Kingdom to the United States, all of whom contested this extradition as violating Article 3 of the European Convention (which prohibits torture), on the grounds that, if they were to be extradited, they may potentially be subject to torture, or torture adjacent practices, in the United States. 4 Although these claims were eventually dismissed by the European Court the battle in court lasted eight years and cost
1 Gearty, C. (2007) ‘Terrorism and Human Rights’ Government and Opposition 42: 340-362. 2 Asthana, A. and Mason, R. (2016) UK must leave European convention on human rights, says May. https://www.theguardian.com/politics/2016/apr/25/uk-must-leave-european-convention-on-human-rights- theresa-may-eu-referendum. 3 Ibid. 4 Case of Babar Ahmad and others v. The United Kingdom (2012)
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