h2g2 The Hitchhiker's Guide to the Galaxy: Earth Edition

So Article 3 says :

Article 3

Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Which sounds find - but now define torture - putting me in a cell would be torture, I'm claustraphobic, but could you argue that we can't lock people up ?

Degrading ? I'd consider having to use a hole in the ground or a bucket as a toilet degrading - especially if it was in a shared cell, but this is a common practise.

It tries to be a catch-all and because of that it fails. If it just said 'torture is prohibited', then there would be less room for lawyers to try to slip around the edges, because we would all have a very clear picture of the difference between torture and punishment.

Or Article 4 -

Article 4

Prohibition of slavery and forced labour

1 No one shall be held in slavery or servitude.
2 No one shall be required to perform forced or compulsory labour.

Quite straight forward ? Until you read the next clause :

3 For the purpose of this Article the term “forced or compulsory labour” shall not include:
(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;
(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
(d) any work or service which forms part of normal civic obligations.

Which basically means OK you can make people break rocks.

1) What sub-clauses in particular? (feel free to use the link I gave)

2) She may well have tried to argue it. Did anyone listen, though? (I don't recall). After all, Article 1 of the First Protocol (Protection of Property) does say:
"No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law..."
I would say that there's a good public interest case that the wife of a serving prime minister should not receive gifts from those with whom the government has a working relationship. Certainly the HRA doesn't prevent us from having anti-corruption laws.

I'm now confused as to what you're arguing, McKay.

To take your Article 3 example...yes, I'd say that in the hypothetical case that someone is severly psychologically distressed by being locked up in a cell, they shouldn't be. But that's not the case for most people, so they can be imprisoned.

As for slopping out...even before the HRA, it was declared to be a degrading form of punishment. Yes, we have been somewhat lax in improving prison conditions...but are you saying we shouldn't?

On your Article 4 example...yes, I guess that rock-breaking would be permitted - provided that it did not contravene Article 3.

Im sure it's not the case...but these really do strike me as the sort of argument that might be trotted out by someone reading the HRA for the first time and without giving it much thought. For the sake of a more meaningful discussion, would it not be more productive to try a few actual cases which have got as far as court?

What I'm saying is that in attempting to be all things for all people it fails in its purpose of protecting human rights by making clauses and loopholes.

And of course it fails to allow for the people who just ignore it.

"And of course it fails to allow for the people who just ignore it."

This is kind of the nub. The HRA is not about "people" at all. It is about governments.

The HRA (and the convention on human rights) is about limits on what a government can do to its citizens.

Plus, you're still not presenting any evidence. McKay. Saying 'It's full of loopholes' cuts little ice unless you can give examples of a) its loopholes and b) their consequences.

If we're to believe certain newspapers, it's been a complete disaster and the country's right to be up in arms against it.

Why?

I listed one above - Aricle 4 secion 2 proscribes something, section 3 then gives various exceptions.

Either its wrong or it isn't - No killing - except if its government sanctioned.

Ah, right. So what you're saying is that it should be *stronger*? Because of all the carefully-crafted clauses (which I think give full explanations of what we deem to be acceptable for governments to do), it defeats its purpose?

So it should say...
No detention without trial - even for the safety of psychiatric patients?
No compulsory labour - not even military service or jury duty?
No interference in family life - even if children are in danger?
etc. etc. etc.

No, you've lost me. What *is* the point you're trying to make.

As I say, I'm sure this isn't the case, but it really does look as though you had just read the Act for the first time.

As I've quoted it in previous threads, and I'm not a golfish, that isn't the case.

I'm saying that by attempting to be all things for all situations it ends up being nothing but a feeding ground for lawyers.

It is written to try and cope with multiple legal systems and to allow for every situation.

That is not how English law works - English law runs by precedent - so the law in England says that if you kill someone - its murder. No ifs no buts and if you want to plead self-defense then you do so at your trial.

HRA is written for countries, and tries to impose a perceived morality over the country's own laws and customs. It relies upon the compliance of the country concerned, and surely, if the country is prepared to be a signatory to it, then by definition it doesn't need it.

If the country is not prepared to be a signatory to it - then almost certainly it has something to hide or it feels that its own independance is more important than international goodwill.

Either way this is a totally uneccessary piece of legislation - people who are prepared to sign up to it, don't need it. Country's who won't sign up to it can't be made to.

Lawyer food and nothing else - get rid of it.

McKay,
I don't quite see your point.

You complain about rights being too general, (meaning lawyers might try to argue a case where they really shouldn't), then you complain where a general right is qualified, to make it more clear what it actually applies to.

The forced labour example/slavery right seems to need some kind of qualification, if only to avoid the frivolous challenges you'd so dislike.
If people don't see conscription as an infrigngement against anti-slavery rights, then it makes sense to make it clear that it isn't covered.
Likewise, the 'normal civic obligation' clause does presumably allow for people to be expected to do things (or arrange for someone else to do them) that everyone is expected to do.
Someone being victimised can point to the fact that if what's being asked of them isn't generally asked, it can't easily be a normal civic obligation.
On the other hand, if someone complains that being required (like everyone else in an area) to sort their rubbish into recycling bins is tantamount to forced labour, a judge can give them short shrift, because the oblogation is at least locally universal.

"On the other hand, if someone complains that being required (like everyone else in an area) to sort their rubbish into recycling bins is tantamount to forced labour, a judge can give them short shrift, because the oblogation is at least locally universal."

Once it's been dragged through the courts and everyone's time wasted. Instead of being sorted at the level of "you're not sorting your rubbish, therefore it won't be collected." We go to court.

We don't need laws like this.

McKay,
The point is that if someone simply had their rubbish left uncollected, given a bad enough lawyer they could *still* try and argue that they were being coerced to do some act of work if there was no 'typical civil obligation' clause, so there could be a case in the courts either way, and possibly a more trivial case without the exemption you seem to pour scorn on

It's still the case that it's an unusual position you have where you say rights not precisely defined are open to legalistic abuse, but seem to want to riducle attempts to more closely define the limits of rights so everyone knows where they stand as being the hand of some evil government writing itself loopholes to stamp on the rights of citizens.

I can only conclude that an act which magaes to annoy you in both your odd extreme positions might well be somewhere near about right.

OK - are we any better protected now, in England, than we were in 1997 ?

As I've pointed out, we have been bound by the European Convention on Human Rights, whose Articles have precisely the same wording as the HRA, since 1957.

You're right to ask 'Are we better protected?', though. The answer to that is that we've expressed the minimum baseline for are law. In future, we will make no further laws which contravene the HRA. We also have some tidying up to do since are laws are bound to be unjust in one or two places. Plus, were there is doubt as to the intention of our laws - and any Judge will tell you that this does happen - we now have a framework for interpreting them. Primarily, though, we have a line in the sand that stops us and the other countries of Europe embarking on the slippery slope that Germany started in the 1930's as freedoms were gradually chipped away. It says to us that we should start worrying if governments things like laws allowing indefinite detention without trial.

I'm a little puzzled by your murder example, though. While, as FB pointed out, the HRA applies to governments, not to people, the Right to Life is the one with least caveats. Governments are not allowed to take life except in *very* special circumstances. For example, we're not - quite rightly - to have capital punishment. I doubt that anyone would suggest that shooting a gunman who was holding a pistol to a hostages head should count as murder. So I'm confused. What forms of murder do you think have slipped through loopholes? Maybe I'm being thick - but you're going to have to help me with an example here.

An while I'm at it...these loopholes that are making all this money for lawyers. I suppose on one level if people want to embark on doomed-to-failure, frivolous challenges on spurious HRA grounds, then a fool and his money are soon parted....but please, please point me at any examples that I might have missed WHERE THIS HAS ACTUALLY HAPPENED!!!!!

And if you think that there are no loopholes in English law...may I suggest that you're being a tad naive?

(Not that I care. Anyway, in my country we had the HRA a full year before England. )

So a gunman is holding a gun to a hostage's head and a police marksman shoots him - that's OK.

Suppose however the marksman misses - the gunman shoots his hostage and tries to run away - the police marksman shoots him. Is this OK ?

The gunman isn't killed he's only wounded - let's put him on trial - he's guilty of murder ! Now is it OK to shoot him ?

You may argue that the first instance is trying to save a life.

I would argue that the second instance could still save a life as he may take a second hostage.

I would further argue that option 3 may save a life because this person has already shown he has no regard for human life, and could kill another prisoner, or a guard, or could eventually go free and kill again.

However regarding law changes to prevent things going beyond the HRA - isn't this just what first the Blair government and now the Brown government are trying to do by extending the ammount of time a person can be held without being charged ?

>>Suppose however the marksman misses - the gunman shoots his hostage and tries to run away - the police marksman shoots him. Is this OK ?

Obviously not. It would be amount to summary execution. Unless the gunman was still presenting a threat, in which case it would be thoroughly justifiable. I'm comfortable with this.

No law, not even the HRA, could improve the accuracy of a police marksman. Nobody is saying that the HRA is the whole of the law. We would also expect the police to have sensible procedures for deciding when it was and was not sensible to pull the trigger. If they were simply reckless - ie, shoot and to hell with the consequences, we might legitimately question that.

But I'm still genuinely confused. Are you saying the HRA should prevent marksman from ever shooting a hostage-taker? Or from never shooting one?

And what has it to do with the price of fish? Has there ever been a case of this type upon which the HRA haS impinged?

Or have you just decided agin it and now, having read it, are struggling to find theoretical loopholes?

Interesting. Am I to read SWL's current tag as ironic support for the HRA?

Yes, if you read certain newspapers, you get the impression that there are hordes of people Bemanding Their Rights over all sorts of nonsense. Of course, that's not what the HRA is about. Neither is it what's happening.

Bemanding? Demanding, even.

The tag is recognition that "blame the HRA" is the wrong angle. We really should be blaming the gobshite, borderline criminal lawyers who exploit it.

There's nothing wrong with having ideals. When people start using those ideals to take the piss and pervert the original intention, they should be punished.