The astonishingly low standard of Human Rights Act bashing

Last week, I came across — and briefly joined in — an astonishing exchange on Twitter concerning repeal of the Human Rights Act 1998. It was prompted by a report that former Attorney-General Dominic Grieve anticipates that, in his Conservative Party conference speech this week, David Cameron will announce plans to dilute the UK’s commitment to upholding the European Convention on Human Rights. (That the Conservatives will adopt such plans at some point seems inevitable; indeed, Grieve’s sacking was clearly intended to pave the way for this.)

Against this background, David Allen Green made the following observation:

It prompted the following response from Louise Mensch, who, until her resignation in 2012, was a Conservative MP:

(Readers mystified by Mensch’s “cat” reference will find ample explanation in this excellent piece by Adam Wagner on “catgate”.) When pressed to say exactly what the problem with Article 8 is, Mensch responded:

The precise meaning of this tweet is unclear, and it hardly warrants detailed analysis. However, Mensch appears to believe either that there is no such thing as a legal right to family life or that there should not be such a thing, on the ground that it would preclude lawful imprisonment. Either way, of course, she is entirely wrong: Article 8 ECHR confers a right to respect for private and family life, but in terms that are qualified rather than absolute. As such, the right to family life can be — and is — limited by relevant public interests, including those that justify the imprisonment of criminals.

The point of significance that emerges from this exchange, however, is not that a former Conservative politician turned Sun columnist has got the law wrong. That is hardly a remarkable phenomenon. What is more significant is that Mensch’s willingness to engage in this sort of criticism from a position of ignorance is simply one vignette that illustrates a far wider malaise. The widespread preparedness of politicians — including government Ministers, as the “cat-gate” affair shows — to engage in legally illiterate criticism of the HRA and the ECHR debases public discourse. It is, however, of a piece with the willingness of the media to engage in equally uninformed criticism (on which see recent pieces by David Mead and Adam Wagner), and contributes to the broader mythology that has grown up around our human-rights system.

None of this is to suggest that reasoned criticisms cannot be made in relation to the HRA or ECHR. They can. The system is not perfect, and reasonable minds can and do differ on the extent to which courts should be empowered to overrule politicians’ judgments as to how the balance between individual and broader public interests should be struck. However, as questions about the HRA — and even the UK’s ongoing commitment to the ECHR — are addressed, as they surely will be in the run-up to the 2015 general election, it is imperative that the debate is informed. Politicians should feel entirely free to criticise the HRA, advocate its repeal, and even argue in favour of the UK’s withdrawal from the ECHR. But they do everyone a disservice if they base their case upon lamentable misrepresentations of the current legal position.