Letter: Human rights: beware the Kiwi model

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The Independent Online
Sir: You report (23 May) that the Conservative Party has dropped its opposition to the incorporation of the European Convention on Human Rights. This is very good news. For the first time we will have positive rights to privacy and fair trial, freedoms of expression, religion and assembly. However, the real test of the commitment of the new parliament will be whether it is prepared to allow the courts to give a higher status to the convention than other legislation.

The Canadians have managed to develop devices that preserve the sovereignty of their parliament whilst also giving rights the importance they deserve within the constitution. The alternative model being discussed comes from New Zealand, which remains inadequate. In New Zealand, where there is a conflict between rights and statute, statute prevails. In this country, this would mean that the individual who was able to show to the satisfaction of the domestic court that his or her convention rights had been violated would nevertheless lose the case. The "loser" would then still have to petition the commission in Strasbourg for redress.

The Labour Party's consultation paper, published in December, proposes that Parliament would be expected to change the law in any case where the domestic courts had found that the primary legislation did not comply with the convention. Unfortunately if it did not do so the domestic courts would be powerless to do anything other than to remind Parliament every time a similar case came along.

The danger with this approach is, of course, that if a case concerned an unpopular group of people, such as suspected terrorists, travellers or protesters, or was controversial in some other way, as many human rights cases are, then Parliament might never get round to changing the law. The law would then be in a mess, with the courts finding violations and Parliament taking no action to remedy the situation. Finally, after another five or so years the "loser" might succeed in Strasbourg, obliging the Government then to make the necessary reforms.


Director, Liberty

London SE1