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.