Sunday, 28 June 2015

The right to a private & family life

The imprecise nature of much of the European Convention on Human Rights can be demonstrated by examining one of the Articles taken at random. The Article chosen is Article 8: Right to respect for private and family life. At the time when the British Government signed up to the Convention, and for nearly two decades afterwards, homosexual relations in private between adult men was a criminal offence, although this law did not apply to adult women. So how, many might ask, was this law consistent with the provisions of Article 8. The answer lies in the detailed wording of the Article which is as follows:-

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.

Many of the exemptions in Part 2 are common to other Articles in the Convention. In the case of the prohibition of homosexual relations between men, British governments could have argued (although no challenge was ever made) that the protection of 'morals' allowed the law to interfere in this private activity. Similarly Governments could also argue that the prohibition of the possession of cannabis in the home for private use is consistent with this Article, citing the protection of health exemption, despite the law allowing the possession of tobacco, which is equally damaging but more addictive.

The reality is that the exemptions allowed under the Convention are so wide that they provide very little in the way of protection to the private citizen against the determination of a government to introduce just about any law considered necessary for whatever reason. Moreover, judges have an equally wide discretion as to how to interpret its provisions, and their decisions form a legal precedent which is near impossible to reverse. As Lord McCluskey warned during the parliamentary debate on the Human Rights Bill 'by incorporating into our domestic law vague, imprecise and high-sounding statements of legal rights, we hand …legislative power away from a democratic and accountable Parliament to an appointed, unelected and unaccountable judiciary'.

Currently both the British government, and the judges who interpret human rights legislation, are all dancing to the same politically correct tune, and the judgements they hand down reflect this prevailing mindset. The vagueness and generalised wording of the exemptions gives the ECHR considerable power since it is the sole arbitrator on what is, and is not, consistent with the Convention. This power, to decide what activities are, or are not, lawful, has been usurped by a foreign legal body. It should be returned to our national parliament, where the arguments can be investigated, fully debated and discussed.

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