Declaration vs Implementation: the importance of the ECHR and the Human Rights Act.

21 09 2012

Whilst on the surface it may appear that all laws are created equal there is a great difference in the real effects of law due in part to the separation between the executive, the legislature and the judiciary. These three bodies interact in the application of law. The legislative write the law, the executive (the police) implement it and then the judiciary interpret it.

In a simple example: the introduction of a tax is a legislative function; collecting tax is an executive and administrative function; settling tax disputes is a judicial function, as is judicial review of executive decisions. What this can mean is a strong difference in the the implementation of law (the reality of law) and the declaration of law (the technicality of law).
For example, marijuana might be declaratively illegal (technically, it is illegal to possess/sell/transport and so on). However in reality, the law is not applied this way. Police amnesty and refusal to pursue criminals mean that for the common citizen, possession is unlikely to be punished.

So how does this reflect on Human Rights? The Universal Declaration of Human Rights made bold statements regarding the rights that humans are inherently due and that the committee founded to investigate the issue believed world governments should strive to provide, however in reality the impact of such a declaration is limited by the implementation of that declaration.

The European Convention on Human Rights (ECHR) established a legal body (the self-same court) with powers to enforce human rights transgressions with the weight of international law. The Human Rights Act went further by granting UK courts the power to deal with infractions of the ECHR within the UK legal system. It is these acts which are so very important in legislation. They are, in effect, the difference between talking the talk and walking the walk.

Wrongs & Rights

3 11 2010

I’m going to preface this article by explaining my thoughts on “rights” (as in ECHR).  I think it is unfortunate (but perhaps necessary in practice), that people refer to what are, in my mind, privileges that citizens of an ethical society grant to one another as “rights.”  Not because they aren’t right (as in right and wrong) to have, but rather because the language of “rights” is one of intrinsic, natural, “god-given” privilege.  Something that it would be wrong to deny a human being.

When I say they might need to be necessary in practice is because the defence of civil liberties is an ongoing and fundamental struggle.  To treat privileges as rights is to make them more resistant to encroachment, our “rights” are bastions of liberty, designed to keep people free.   When I say it’s unfortunate, it’s because it’s not true.  What we call “rights” are privileges we grant one another, by choice, as part of our social contract.  We have agreed (however implicitly) as a society, that members of that society deserve certain privileges; that to deny members of society these privileges  is to threaten society.  Without free speech, our society would not be safe.  Without the privilege of a fair trial, our society would not be safe.  Our society rests on the freedom of its citizens- from the power of government, and from one another.

We live in a representative democracy- people have a vote by which they influence the choice of their leaders, who act as representatives of the people when making laws for society (taking cynicism aside for the moment).  As such, people consent implicitly to be held accountable to the body of laws of that society.  We get our vote, we get our privileges and in return we follow the laws enacted by this mutually “agreed” body.

Part of the laws we have mutually agreed to be bound by include penalties for members of society who transgress those laws.  Some of those penalties include restrictions of privilege- such as freedom of movement.  We have agreed that some actions, if convicted by due process, deserve the sentence of temporary removal from society- prison.

Prisoners have had their rights (mistakes in the system aside for the moment)- they have had habeas corpus, the right to a fair trial, trial by jury, to not be tortured and so on.  They have the right of appeal, the right to privacy and security of person.  Nonetheless, the rule of law has, by due process, confined them to segregation, the intent of which is to prevent them from negatively interfering with law-abiding member of society, whose privileges they have infringed on.

Prisoners do not deserve the vote for two reasons-

1. They are separated from us to keep us safe from them- the vote gives them influence over our society, which they have been removed from by warrant of their actions.  They do not deserve influence over a society they are not currently part of- similar to how citizens of one country cannot vote in another.

2. Voting, like freedom of movement, is a privilege we grant one another as part of our social contact.  If you break that contract, why should you retain all of your privileges?  Punishment is a necessary disincentive to law breaking.


Taking the argument of prisoners to one side for the moment, and in light of the actual ruling of the Court (surprisingly not linked to in any of the news sites I’ve seen this discussed on </s>), it is pretty clear that argument (2) applies to all felons, regardless of imprisonment.  The Court took issue with the lack of proportionality of punishment (disenfranchisement), with the severity of the crime causing imprisonment (or in the original case, the reason for continuing detainment).  The amusing implication (for me), is that people are up in arms about prisoners voting, whilst I would argue that criminals should be denied the right to vote- in prison or not.