The Great Charter of Liberties: 800 Years Later

24 July 2013, 16:16

Preparations have begun in Britain, the United States and other English-speaking nations for the celebration of Britain's first and most important document of human rights – a charter that laid the foundation for 800 years of parliamentary democracy.

 Magna Carta, signed in 1215 by King John and the barons demanding that the King be subject to the law of the land, is a cornerstone of laws throughout the centuries that have given ordinary citizens rights that the state cannot violate. And yet in Britain today the concept of "human rights" has become increasingly controversial. The European Court of Human Rights, inspired by Britain's example in the wake of the Second World War, has now become a burden on successive British governments, issuing rulings in Strasbourg that are seen by most Britons as intrusive, quixotic, unnecessary and politically motivated. And so angry is the British government with its latest demands that it has just announced that it is considering withdrawing from the 1950 European Convention on Human Rights.

 The issue that has provoked this furious response is the case of Abu Qatada, a Jordanian terrorist regarded as Bin Laden's right-hand man in Europe. Wanted for plotting terrorist atrocities in his native country, he fled to Britain 10 years ago on a forged passport with his wife and five children. Claiming asylum on grounds of religious persecution, he was given permission to stay in 1994. But Britain soon regretted that decision, when intelligence services found after the 7/11 atrocities in America in 2001 that Abu Qatada had extensive links with al-Qaeda and Islamist extremists in Afghanistan, Europe and Algeria and played a key role in plotting terrorist actions against the West. A long battle began to deport him back to Jordan.

 Abu Qatada was a shrewd operator however, and hired lawyers who knew how to make use of legal safeguards and loopholes to delay or annul successive government attempts to expel him. He appealed to the European Court to stop him being deported, arguing that he would be subjected to torture in Jordan. The Strasbourg court also ruled that Britain could not keep him in detention without charging him with a crime – a move that the government resisted, as it would have meant revealing the methods and targets of surveillance by British intelligence. Under pressure from Europe, Abu Qatada was released, and huge amounts of money were spent monitoring his movements. And despite a specific guarrantee from Jordan not to use evidence obtained by torture, Britain's highest court blocked his extradition – again citing the rulings of the Strasbourg Court.

 He was eventually sent back earlier this month, but only after Britain and Jordan had to sign a new treaty dealing specifically with his case. This has cost British taxpayers some 3 million, not counting the cost of supporting his wife and children on social security benefits amounting to a further 500,000. Almost all Britons expressed disbelief that the government was unable to deport him, and many said that other signatories to the European Convention on Human Rights, such as France and Italy, would have simply put him on a plane at the first opportunity, whatever the rulings in Strasbourg. David Cameron, the Prime Minister, said the Abu Qatada case had "made my blood boil" with anger, and Theresa May, the Home Secretary, told Parliament that she was now looking at changes in the law to prevent anyone else exploiting human rights legislation to thwart expulsion orders.

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 This case, however, is not the only one that has made British politicians' blood boil. The Strasbourg court has also told Britain that it is in breach of human rights legislation because it does not allow convicted prisoners to vote while they are serving their sentences. And only a week ago, the same court ruled that Britain had violated the human rights of several mass murderers, who have been sentenced to remain in prison for the rest of their lives because of the scale and brutality of their murders.

 This was the last straw for many British politicians. There is very little public support for allowing prisoners to vote at general elections; there is absolutely no support for people such as Ian Brady, a murderer who tortured and killed five children while tape-recording their screams, ever to be released from jail. Capital punishment was abolished in Britain in 1965 only on the specific agreement among politicians that the worst murderers would remain in prison for the rest of their lives.

The common reaction to the Strasbourg ruling is one of fury: how dare judges, most of whom have never lived in Britain, tell a country with a long tradition of protecting human rights how it should treat prisoners or terrorists seeking asylum? The political and legal reaction is more nuanced. Britain prides itself on upholding all the provisions of any treaty it signs, however unpopular they may be. It would be politically impossible simply to go ahead with deportations without first observing all the legal requirements. Parliament has incorporated the European Convention on Human Rights into British law, and this means that the Strasbourg Court is technically superior and can overrule even Britain's own Supreme Court. The only way, therefore, to ignore Strasbourg is either to seek derogation from one or more articles of the Convention, or to withdraw from the Treaty altogether. The trouble is that no derogation is allowed from Article 5 – insisting that no one can be detained without charge. The only other option is to leave the Treaty.

 This would undoubtedly be a popular course. Britain was one of the main sponsors of the Court, set up in 1959 as an offshoot of the Council of Europe, a body established in 1949 to codify the values of democracy among European nations in the aftermath of the Second World. War. But since then the very notion of human rights has become debased in Britain – largely because of judicial "activism" by Strasbourg, which often seeks to extend its influence. There is also confusion between the Council of Europe and the European Union, a separate and newer organisation but one now deeply unpopular in Britain. Nowadays human rights are often seen as a way for criminals with clever lawyers to avoid punishment.

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 There is also deep resentment at what is seen as the hypocrisy of nations that try to use "human rights" accusations to attack the West or to mask their own lack of democracy and liberty. This is particularly striking in the composition of the former United Nations Commission on Human Rights. This body – abolished in 2006 and changed to the UN Human Rights Council – caused outrage in the West because it often included on its governing council countries with a very poor human rights record, such as Sudan, Zimbabwe, China, Pakistan, Saudi Arabia and Cuba, and used its mandate regularly to attack West countries for "imperialism" and "colonialism". Human rights became a politicised slogan, and seemed to have very little bearing on the ordinary liberties of ordinary people.

 Withdrawal from the European Convention is unlikely. It would only encourage other, newer members such as Turkey and Russia, which have also been angered by some Strasbourg rulings, to withdraw – and thus weaken international attempts to improve human rights throughout the continent. But Britain has already asked its partners to consider amendments, especially on such vexed issues as asylum. Sixty years ago, the number of refugees seeking safety in Europe was relatively small. With cheap airlines and global communications there are now millions wanting to move to Europe. They argue that their human rights are endangered, but most are simply seeking a better life and higher wages. It is time, Britain says, that the Convention recognised that circumstances have changed.

 Magna Carta is still taken seriously in British law. 1215 is one of the few dates that all British schoolchildren learn. Cameron knew the date, when asked on an American chat show last year, but embarrassingly could not remember what Magna Carta meant. What he does know is that Britain has been grappling with human rights for a long time, and will not allow outsiders to dictate what these mean.

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