There is no such thing as a trivial breach of human rights

For the second part of what I fear will be an ongoing series on why the Tory proposals on human rights are awful, we turn to the notion of trivial human rights. Here let me quote from Mark Elliot’s analysis of this issue:

In some ways, the fifth proposal is the most astonishing. Under it, the use of human-rights laws would be limited to “the most serious cases”. The obvious question which this invites is: what would constitute a sufficiently serious case? The answer given in the Conservatives’ paper is as follows:

The use of the new law will be limited to cases that involve criminal law and the liberty of an individual, the right to property and similar serious matters. There will be a threshold below which Convention rights will not be engaged, ensuring UK courts strike out trivial cases.

This proposal is questionable on a variety of levels. It is, for instance, unclear why cases involving “criminal law”, “liberty” and “property” should be singled out as particularly important. What of free speech, the right not to be tortured, and rights of due process? Nor is it clear what would constitute “similar[ly] serious matters”. It is not even clear by reference to what criteria seriousness and its observe, triviality, would be determined.

There is, however, a larger point here. To focus on the technical difficulty involved in differentiating between serious and trivial human-rights cases would be to confer false dignity upon that distinction. There are meritorious (i.e. well-founded) and unmeritorious (i.e. not well-founded) human-rights claims; but to suggest that there are serious and trivial human-rights claims is to diminish — indeed, misunderstand — the notion of human rights at a fundamental level. This is not to suggest that there may not be a hierarchy of rights (as is reflected, for instance, by the distinction between absolute and qualified rights), but the very fact that a right is considered to be a human right ought to immunise it against any suggestion that it is insufficiently important to warrant judicial protection if unlawfully infringed.

If the Conservative Party wishes to argue in favour of judicial protection of a much narrower range of rights than those that are presently recognised by the ECHR, then it is perfectly entitled to make such an argument — but it is disingenuous to claim that the Bill of Rights would include all of the Convention rights, only to deny judicial protection in respect of those judged to be “trivial”.

As far as I can see, the Conservatives have failed not only to explain what will constitute a “trivial” breach but – as far as I can see – haven’t even given any examples. That leaves me rather unclear what it is exactly I’m critiquing. But as with the matter of “responsibility” that I looked at yesterday, Grayling and the Tories are trying to add what wasn’t missing in the first place.

Most of the rights contained in the ECHR are ‘qualified.’ That the public authority will not be in breach of the Convention if it can show that it was ‘justified’ in interfering with that right. The question of justification is assessed in part by reference to idea of ‘proportionality.’ This means that greater interferences demand stronger justifications. And that conversely, a trivial interference will be easy to justify.

Even for ‘unqualified’ rights, the Court will still need to be convinced that a right has been interfered with.  So for example, Article 5 prohibits the “deprivation of liberty” (i.e. unlawful imprisonment) but distinguishes between that and mere “restrictions on movement.” And the court is pretty serious about what it takes for the later concept to turn into the former. In one case it ruled that police kettling did not constitute a “deprivation of liberty.”

My fear as with “responsibility” is that this is not only unnecessary but another way to take human rights away people the Tories don’t approve of: that a breach will be trivial if it affects ‘our people‘ but not if its human rights of gypsies or asylum seekers on the line.

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3 thoughts on “There is no such thing as a trivial breach of human rights

  1. The should be no such thing as a trivial breach of human rights, indeed.

    And yet the Human Rights Act is being invoked in what are clearly trivial cases. For example, watch the video at:

    Surely something has gone wrong when the European Convention on Human Rights, which was written to prevent totalitarian dictatorships from sending dissidents to gulags or psychiatric hospitals, is being used by middle-class women who are a bit cross that they have been embarrassed by their bad parenting being revealed to the local vicar?

    Surely that makes a mockery of the whole notion of ‘human rights’? Surely that trivialises the whole idea?

    Surely that woman does not belong in the same category as Václav Havel, Aleksandr Solzhenitsyn or Natalya Gorbanevskaya.

    If ‘human rights’ are to retain any meaning, then it has to be made clear that ‘a violation of human rights’ is a most serious matter; it cannot simply mean, ‘the authorities did something trivial I dislike and so I sued them.’

    I don’t know if the Conservatives’ plans are sensible; likely they are not. But something, somewhere, has gone wrong with the idea of human rights if in this country they are being used by bourgeois busybodies who have had their sense of entitlements offended, while actual totalitarian dictatorships which are still locking up dissidents are quite happily signed up to the ECHR.

    • Yes the breach in the video above is not as serious as many but neither was the remedy sought. So I’d hesitate to say it was trivial or trivialising.

      I’m not sure that just because a human rights breach is not of the magnitude of Stalin’s makes it trivial. Nor that the ECHR was only supposed to kick in if a society became totalitarian. I’d suggest it was more about preventing that happening by entrenching a culture of respect for human rights.

      And the main thrust of my post was that the way the ECHR is structured already implicitly deals with triviality. So I’m unclear what adding something explicit will actually do.

      • Yes the breach in the video above is not as serious as many but neither was the remedy sought. So I’d hesitate to say it was trivial or trivialising.

        The fact that the remedy was trivial as well as the complaint surely bolsters the point that the situation as a whole was trivial?

        From there it’s a simple matter of logic:

        1. There is no such thing as a trivial violation of human rights
        2. This situation was trivial (a trivial complaint, a trivial remedy).
        3. Therefore, no human rights violation can have occurred in this situation.

        It’s entirely possible that the woman is right and her bad parenting should not have been disclosed; however, that is a matter to be addressed by the national laws, regulations and procedures governing Criminal Records checks. It is not a matter of human rights, and to say that it is devalues the idea of human rights.

        After all, if this is a matter of human rights, what isn’t? What stops me every time some official does something I don’t like, bringing a case based on human rights?

        Some schools have now brought in policies banning packed lunches, and said all children must eat school dinners. What is to stop a parent who objects to this from bringing a case under article 8 claiming the ‘right to respect for family life’ includes respect for how they choose to feed their children, and this obvious nonsense being taken seriously by a court?

        To be clear, I think the policy of banning packed lunches is wrong; but it is clearly not a matter of ‘human rights’.

        Now, of course, it is a lawyer’s job to find a way to pursue their client’s case, and creative use of laws is part of that, which is what has led to this ‘creep’ of human rights. If there is no specific law under which your client can sue but you can make a case however tenuous that it somehow involves ‘privacy or family life’, you can make an article 8 claim and roll the dice. But if the concept of human rights is to continue to command any respect as being an absolutely necessary prerequisite for a society to call itself civilised, then somethign must be done to stop this trivialising.

        After all, everyone agrees that a country which locks up dissidents or puts its political troublemakers in psychiatric hospitals is not civilised. That is why, when we say, ‘That country does not respect human rights’ it really means something.

        However embarrassing bad parents by revealing their failings to the local vicar is clearly not something that stops a country being civilised. Neither is, say, to take another real example, not putting an elderly couple who require different levels of care in a home together. These things may be nice but they are the icing on the cake of civilisation, not the sine qua non.

        And to keep bringing these into the realm of human rights will be to dilute the power of saying that a country does not respect human rights. No longer will ‘the country violates the human rights of its citizens’ mean (as it should do) ‘that country does not deserve to be called civilised’.

        And the main thrust of my post was that the way the ECHR is structured already implicitly deals with triviality

        It clearly doesn’t, if trivial cases like this one can be brought under the HRA.

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