Melanie Phillips

15 May 2006

A culture of legalised lunacy

Published in: Daily Mail

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Once again, the Prime Minister is trying to surf a wave of popular outrage by announcing he will take action which on closer examination proves to be mere froth -- not least because his own policy lies at the very heart of the problem.

Thus Tony Blair has spoken out against 'an abuse of common sense' in the way human rights law has been used to allow nine Afghan hijackers to remain in Britain, or free a rapist from prison only for him to commit murder.

But it is his own human rights law which has quite simply altered the entire legal and moral culture of this country and taken an axe to common sense.

The judge in last week's Afghan ruling has been roundly pilloried. But common sense in this case was trounced in 2004, when an immigration tribunal ruled on human rights grounds that it was too dangerous to send the hijackers back to Afghanistan - even though the Taleban, from whom they had fled, had been replaced by a western-backed government.

The root of the problem here is not the wretched judge but the Government itself, which dragged its feet over this case for years. This was because it was paralysed by the fact that human rights law - described only last week by the Attorney-General, Lord Goldsmith, as the Government's 'greatest achievement' - has created in this country a culture of legalised lunacy.

Detectives across the country are refusing to issue 'wanted' posters for missing foreign criminals because they say they do not want to breach their right to privacy and risk lawsuits by releasing their names and photographs. The Driver and Vehicle Licensing Agency routinely shreds the driving records of speeding and drunken drivers because bureaucrats are afraid of human rights laws. That means that thousands of drivers with a bad history escape with lighter punishments because courts cannot learn the full truth about their past.

It is no use saying that such judgments misread human rights law since, because such law consists of a balancing act between competing 'rights' requiring the courts to arbitrate between them, no-one can be sure how any such disruptive cases will end up.

The fact is that ruling after human rights ruling has turned right and wrong on their heads and radically undermined the covenant of responsibility between the individual and the state. To take an egregious example, human rights law has destroyed this country's ability to control its own borders.

The courts have used the 'human right' to family life to reward illegal immigration. Their absurdly generalised interpretation of the prohibition against torture -- which wrenched this principle out of all recognition -- has made it all but impossible to deport those foreigners who threaten this country's security. The Law Lords' perverse reading of 'discrimination' last year has meant that such suspects can't even be locked up pending removal from this country.

What kind of 'human rights' are these, which actually force a country to destroy its own security along with its principles of citizenship, fairness and obligation?

At the weekend, Mr Blair said he was considering fresh legislation to prevent future court rulings from 'overruling the Government'. Here lie the first clues to the fact that these are likely to be empty words.

First, he's only considering any change. Second, human rights law doesn't give the courts the power to overrule the Government. All they can do is declare legislation incompatible with human rights law, thus putting pressure on ministers. So Mr Blair has given us a straw man which he promises he will knock down.

Then look at the way in which the Lord Chancellor, Lord Falconer, has been twisting and turning. There might need to be legislation, he said, to ensure that human rights law would have no effect on public safety issues.

But the whole point of human rights law is that it is supposed to be an overarching set of principles. So it can't be chopped and changed. And in any case, what kind of overarching principles are these which, in the Lord Chancellor's opinion, actually imperil public safety?

Lord Falconer appears to be saying that it's not human rights law that's at fault but certain officials who are misunderstanding it. This is completely and lamentably to miss the point.

It's not merely that this law has paralysed public bodies like the police and the intelligence service, which say they can barely move for fear of falling foul of it. More fundamentally still, human rights law has driven justice, morality and social order off the rails altogether.

It has acted as a grievance charter fuelling the 'victim culture' in which all minorities are seen as incapable of being held responsible for their actions. As such, it has become a principal weapon against the culture and identity of the nation - and, by transferring power to the judges, has delivered a powerful blow against our democracy.

Abolishing the Human Rights Act would certainly help to put a brake on that process. But the problem would remain that Britain is signed up to the European Convention on Human Rights, which would still have supremacy over our laws.

Look, for example, at the Chahal judgment by the European Court of Human Rights, the key ruling preventing Britain from deporting foreign undesirables. This held that, if a person faced torture or inhuman treatment abroad, the risk to that individual from deporting him could not even be balanced against the risk he might pose to the country which allowed him to stay.

In other words, this ruling was a specific attack on the right of a country to decide what was in its citizens' own best interests. Well, it's quite clear that it is in now in this country's best interests either to derogate from bits of this Convention - as every other signatory but Britain has in fact done - or leave it altogether.

Yesterday, Lord Falconer gave the game away when he acknowledged that -- although the Human Rights Convention has separate origins from the European Union - no country can be a member of the EU unless it is also a Convention signatory.

To some of us, of course, that is precisely why we should leave the EU, in order to restore our powers of self-government and democracy. But the fact that we are the human rights prisoner of the EU is why this Government will never address the deformities of human rights law.

The usual suspects scream that it would be unthinkable to abolish 'human rights'. How absurd. Real human rights are very different. Indeed, before 'human rights' law took hold we were rather more free, not less. Instead, we would be abolishing the arbitrary and undemocratic power of judges to impose upon us a particular agenda that is far from universal.

In the remarkable words last year of the senior Law Lord, Lord Bingham, human rights law existed to protect vulnerable minorities - who were sometimes disliked, resented or despised -- against the howls of 'majority opinion'.

It would seem to follow that -- for the judiciary -- Afghan hijackers, murderers and other criminals are 'vulnerable minorities', while the majority who are their potential victims have no human rights at all.

Extricating our nation from this mess would undoubtedly be complicated and difficult. But unless we do so, we are unlikely much longer to have a nation worthy of the name.

About Melanie

Melanie Phillips is a British journalist and author. She is best known for her controversial column about political and social issues which currently appears in the Daily Mail. Awarded the Orwell Prize for journalism in 1996, she is the author of All Must Have Prizes, an acclaimed study of Britain's educational and moral crisis, which provoked the fury of educationists and the delight and relief of parents.

Read full biography

Books

  • The World Turned Upside Down
  • Londonistan
  • The Ascent of Woman
  • America's Social Revolution

Contact Melanie

Melanie Phillips
Daily Mail
Northcliffe House
2 Derry Street
London W8 5TT

Contact Melanie