Tag Archives: human rights

Why all the fuss about human rights?

I’ve worked in care in one capacity or another since I first volunteered as an unemployed school-leaver in 1981. Over the last 30 odd years I’ve been privileged to see some amazing developments in the way that vulnerable people are treated by society and by the caring professions. I’ve met some incredible, inspiring people and watched in awe as people overcome seemingly insurmountable odds, sometimes as a result of the care they receive and sometimes in spite of it. It’s been and continues to be a fantastic career, witnessing human growth and potential that would have been impossible without this country’s extensive package of human rights protections.

That’s why, some years ago, long before Brexit I wrote this little PDF. It outlines just why I love the European Convention on Human Rights, not just in relation to care services but because of its benefits for society as a whole.
If you’re at all unsure why so many care workers and others fear for our rights post-Brexit please download ‘The convention‘ and see just what the fuss is about.

New seminars and training on human rights coming soon. It’s important for care workers to know what we risk losing. That way they have a chance to help keep our rights.

Doing the rights thing

​So many nationalists talk about how great UK is. They cite our history, particularly 20th century history and the post-war society they grew up in. And I agree – for all its faults, post-WW2 UK hasn’t been a bad place to grow up in.

Our emphasis on justice, compassion, tolerance and human rights has created a pretty cool place to live. We have education, health care, protection for workers, unemployed people and the sick and disabled. We have a reasonable justice system without barbarity and access to legal remedy for all. It’s true that  recent ideologically driven austerity measures have definitely impacted negatively on most of these advantages. None the less most UK adults today grew up with a working set of rights and safeguards before recent governments began trying to remove them.

What seems odd to me is the way that, whilst extolling our nation’s virtues, these nationalists often want to remove the emphasis on rights, tolerance, representative democracy and justice that made modern UK society so good in the first place.

Why is that? I think it’s probably because they don’t quite get the reality of Human Rights and what they’re in place to achieve. For years now the media and certain politicians have distorted the public’s perception of human rights with a parade of half-truths and downright deceptions.

My solution is to develop a training pack, primarily for care workers but actually relevant across society to help show people what’s at stake as the UK prepares to leave the EU. There is a lot of talk about scrapping our human rights. I think we need to be very, very clear about just what that means – and about what we want to come next. Knowledge is power!

Please get in touch if you have any suggestions for topics to include, FAQs to prepare for or any other questions or comments about this new project.

Many thanks.

Stuart

Human rights in the UK?

Everyone should read and understand this. We need the Human Rights Act and the European Convention on Human Rights. Without them this vicious tory government realky will be able to treat us all like expendable cattle.

https://kittysjones.wordpress.com/2014/08/16/uk-becomes-the-first-country-to-face-a-un-inquiry-into-disability-rights-violations/

We are more than just working stock for the moneyed establishment.
Those who cannot work are more than just burdens – they are people.

Don’t be fooled. Human Rights laws are there for a reason. We cannot afford to lose our HR protections.

Privileged glimpses 25: Who put us in charge?

This series of blog posts first appeared a few years ago on a now defunct blog called ‘Care Training’. It was inspired by the training maxim of ‘making the unconscious conscious’. It is intended to take what really ought to be the most basic principles of health and social care and put them down on paper. The series isn’t only an exercise in stating the obvious though whatever the title might suggest. It’s actually intended as a philosophical foundation manual for workers and informal carers to help them get their care ‘on track’ and then to keep it that way.

The first of the Mental Capacity Act’s underlying principles is:

An assumption of capacity

This means that we need to begin by assuming that everyone we meet is capable of making this particular decision at this particular time unless we have reason to suspect otherwise. In other words that person is ‘Most people’ in relation to the ‘three types of legal status’ table below:

Three types of legal status

Most people

Make their own decision

Bournewood gap

Follow Mental Capacity Act 2005

Mental Health Act

Follow Mental Health Act 1983/2007

People whose capacity to make the decision is not in doubt People who are not detained under the MHA but who lack the capacity to decide People who (because of a mental disorder) are deemed to present a risk to self, risk to other or are at risk through self-neglect.

This might seem very obvious and reasonable (in fact it is) but it doesn’t sit too well with common practice in a number of care environments. Let’s look at an example.

When I was still a young man I worked as a care assistant in a Learning disabilities residential home. Looking back I can see a number of problems with the way the home was run but at the time, having come into a system that was already established, I thought that this was how learning disabilities establishments were supposed to operate. I didn’t know any better.

One of the fundamental mistakes I used to make related to the residents’ ability to make choices. This mistake covered all sorts of decisions from what to watch on the TV to whether or not they wanted to come on group outings to the local swimming pool.

The house was set in its own grounds in a beautiful part of Lincolnshire and the lawn and garden were nothing short of stunning. The home employed a full time groundsman to keep everything in good order and he did an excellent job. Consequently, many of the residents used to enjoy spending time sitting under the trees in the grounds or walking around the landscaped garden.

However this wasn’t always possible. You see, along with all the other staff there, I would take it upon myself to stop residents at the door and expect them to explain to me why they were safe to go outside. If I wasn’t completely satisfied then I would prevent them from doing so – this wasn’t difficult because the doors were always locked and only the staff had keys. Only if I was happy for them to leave would I let them go outside.

The problem was that this was the wrong way around. I emphasised the word let in bold for good reason. You see it wasn’t up to me to let people do anything.

We use the word ‘let’ a great deal in health and social care but that implies an authority we do not usually have. I can only let a person do something if I have the legal power to prevent them – and usually I don’t.

It wasn’t up to me to let people go outside into their own garden. They went because they had a right to and unless I had good reason to interfere with that they didn’t need my permission at all.

A more recent illustration of this comes from the N. Cornwall Learning Disabilities Partnership NHS Trust inquiry that took place in 2006. There were 40 referrals to the POVA list (now the vetting and barring list) and many of them were to do with staff preventing people from using areas that they had a right to without good reason.

Whenever we are tempted to take control of other peoples’ choices it’s useful to begin by asking ourselves:

“Who put me in charge?”

Unless you can demonstrate that the individual lacks the capacity to make this particular decision at this particular time then nobody put you in charge. The person has a legal right to make their choices whether we like it or not.

Even if the person lacks capacity (in which case you may very well be ‘in charge’) you will still need to act in their best interests and that doesn’t automatically mean doing what is best for the staff or for the relatives.

People have the right to occupy their own space, to make decisions about when they get up or go to bed, to choose who they spend time with and whether or not to involve themselves in activities. They also have the right to disagree with us and to ignore the preferences of family members just as you have. Your relatives have no right to tell you what to do (assuming you’re an adult) and the same is true for your service-user with capacity.

Who put us in charge?

Privileged glimpses 7: What people say

This series of blog posts first appeared a few years ago on a now defunct blog called ‘Care Training’. It was inspired by the training maxim of ‘making the unconscious conscious’. It is intended to take what really ought to be the most basic principles of health and social care and put them down on paper. The series isn’t only an exercise in stating the obvious though whatever the title might suggest. It’s actually intended as a philosophical foundation manual for workers and informal carers to help them get their care ‘on track’ and then to keep it that way.

Just a quick post today. This one is as obvious as it gets.

What people say may not be what people mean

There are many reasons why people in health and social care settings don’t say what they mean and it’s worth taking a little time to think before deciding whether or not to take what they say at face value.

Here are just a few possibilities to consider…

People may be too frightened or insecure to tell the truth. Or they may know that what they have to say will be unpopular. Many would argue that fear of exposure and a basically unpopular message explains why people are often less than honest about their true intentions. The truth may be too problematic (or the other person’s reaction too scary) to admit to honestly.

The service-user who is always satisfied with the care we give them may genuinely be happy with what we do but, realistically speaking, the person who never feels dissatisfied is pretty rare. That’s why inspectors such as those from the CQC sometimes worry when an organisation receives no complaints at all. Are the service-users too intimidated to say what they actually mean.

There is a power imbalance between nurse, carer and service-user and it’s easy for people to be intimidated by that imbalance – even if it’s unintended. If it is intended, if the nurse is a bully for example then it’s even more of a problem.

If nobody in your service ever complains it’s a good idea to ask yourself why. You may want to look beyond their words and understand the fear that prevents them from being honest.

The other possibility I want to consider here is the ‘challenging behaviour’ strategy of taking people at their word even if you don’t think they’re being honest.

Sometimes people will tell you things they don’t mean because they have a hidden agenda. In those cases you may want to consider acting as if they’re being honest with you even though you think they may not. This more or less guarantees that the solution you give them, although appropriate for the problem they stated will be unlikely to match the subtext. Stick to the stated problem until they tell you what they really mean.

This means that over time they learn that it’s better to be clear and to be honest.

The Convention 18: The right to freedom from discrimination

ARTICLE 14
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

As most people are aware many forms of discrimination are unlawful in British society as they are throughout much of the rest of the world. However the nature of discrimination (what it actually means) isn’t always so clearly understood. The confusion about what is and is not discrimination isn’t helped by the way that certain individuals or groups claim ‘discrimination’ when really they are simply failing to get their own way. A recent example of this involves Father Raniero Cantalamessa, Pope Benedict’s personal preacher who likened the current criticism of the Roman Catholic church to anti-semitism. Cantalamessa claimed that the current outrage at the Catholic church’s failure to protect children from paedophile priests is anti-catholic discrimination.

In fact nothing could be further from the truth.

Raniero Cantalamessa
Raniero Cantalamessa

What we see is arguably pro-Catholic discrimination in that the leaders of the church appear to be receiving preferential treatment. If the management of any other organisation had protected paedophiles from the law and knowingly continued to place them in positions of trust with vulnerable children they would be prosecuted. The ‘blind eye’ that the current Pope himself turned in the past would, according to UK law at least, result in prosecution and very probably a lengthy prison sentence. If there is any discrimination at all it is not anti-Catholic. It is pro Catholic.

The desire to protect children from abuse is not discrimination and such claims are merely an attempt to distract attention from the real issue – the repeated abuse of children by paedophile priests in the full knowledge of a hierarchy that was more interested in secrecy than in upholding the law. This would be a problem in any organisation, not just a Catholic one.

Criticising criminals for their abuse is fair comment. The reason for criticism of the church hierarchy is not their Catholicism, it is their criminal behaviour in shielding abusers from justice and continuing, consistently to place paedophiles in positions where they can repeat their abuses of vulnerable children.

We can see then that what does or does not constitute discrimination depends upon relevance.

It would be discriminatory to treat all Catholics, or even all Catholic clergymen as though they were child abusers. This is because Catholicism is not relevant to paedophilia per se. Not all Catholics are paedophiles and not all paedophiles are Catholic.
It is when we make unreasonable distinctions between people that we are guilty of discrimination. For example when we make assumptions about someone based upon characteristics that have nothing to do with the issue at hand. This sort of discrimination, based upon irrelevancies, is what happens when people make judgements based upon skin colour, religious affiliation, nationality, ethnicity, disability, profession or sexual preference.

Skin colour for example has nothing to do with trustworthiness and disability does not invalidate a person’s right to be treated with respect. In both cases, colour and disability, the ‘condition’ is irrelevant to the point under consideration.

However the fact that an individual belongs to a group that is regularly discriminated against does not mean that they can do no wrong. A gay man who assaults his neighbour in a dispute about a garden fence will still be prosecuted. But he will be prosecuted because of the assault. His sexuality is irrelevant. He may claim discrimination on the grounds of his sexuality but his claim will not be taken seriously by the courts because his sexuality is not relevant to the case at hand.

On the other hand a gay couple refused accommodation in a hotel or guest house would be supported under anti-discrimination legislation for exactly the same reason. Their sexuality is not relevant to their right to use services.

Similairly if I, when I was manager of a residential drug rehabilitation unit had to evicted an Asian man because of his use of illicit substances on the premises he could not then have claimed racial discrimination. Actually, anyone who knows me would understand how ludicrous such a claim against me would be but that’s not the point. The eviction would be because of the rules of the service which are applied equally to all service-users regardless of skin colour or racial type. Colour is simply irrelevant and therefore the decision to evict is not discriminatory – it is simply an appropriate response.

The basic ‘rule of thumb’ then for front line workers is to ask if the alleged discrimination is relevant. Is your action the result of the individual’s need or behaviour or is it motivated by the fact that they belong to a particular group.

If it’s because of individual circumstances and would be the same whatever subgroup the person belonged to then it’s probably not discrimination. I say probably not because there is the additional aspect of institutional discrimination that we will consider in a later post. If it’s because of the subgroup they belong to (eg Catholic, gay, disabled, Asian etc) then there’s a good chance you really are discriminating.

As ever ‘relevance’ is the key when deciding whether or not you’re being discriminatory.

The Human Rights Council recently expressed grave concern at discrimination & violence based on sexual orientation
Their concerns are mirrored by the Crown Prosecution Service here in UK who reported on prosecution rates for ‘hate crimes’ here.

About ‘The Convention’

This series of posts first appeared on Stuart’s blog in June 2011. It is not intended to be a comprehensive or even particularly authoritative reference guide to the ECHR. Rather it is a brief introduction to a much larger and infinitely more fascinating subject. You can download the entire series in PDF format here: https://stuartsorensen.wordpress.com/amj-freebies-downloads-and-services/

The Convention 17: The right to effective remedy

ECtHR in sessionThere is little that needs to be said about article 13. All it really means is that each country must enact laws to ensure that European Convention rights are upheld. If they are not then enacted then aggrieved citizens can take their country to the European Court of Human Rights to sit in judgement in their particular case.

Appealing to Europe is expensive and time-consuming though and so most countries try to ensure that their own, domestic legislation reflects the ECHR. Here in UK that’s what the Human Rights Act 1998 is all about. It includes all the articles of the ECHR except for article 13. That’s because the government believes that article 13 is automatically upheld simply because the Human Rights Act 1998 exists. It provides effective remedy in itself and needs no further discussion.

ARTICLE 13 says:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Human Rights Act 1998 also re-emphasises the duty of all UK courts to interpret the law in a way that is consistent with the ECHR when reaching a judgement. There is a ‘side option’ known as a ‘statement of incompatibility’ which allows the court to say that existing UK law cannot be interpreted in keeping with the ECHR and so pass it back to Parliament to review but this is rarely needed.

About ‘The Convention’

This series of posts first appeared on Stuart’s blog in June 2011. It is not intended to be a comprehensive or even particularly authoritative reference guide to the ECHR. Rather it is a brief introduction to a much larger and infinitely more fascinating subject. You can download the entire series in PDF format here: https://stuartsorensen.wordpress.com/amj-freebies-downloads-and-services/

The Convention 16: The right to marriage

Are you married?
If not, do you plan to marry one day?
If so would you like to be free to marry the person of your choice?
What if you fell foul of the UK’s racial purity laws?
What if you fell in love with someone from a different ethnic group?
How does the prospect of imprisonment ‘grab you’?

Of course there are no ‘racial purity’ laws in UK. You are free to marry whomever you wish, regardless of their race, creed or colour. That’s good isn’t it?

Things weren’t always this way in Europe. During the Nazi occupation marriage was strictly managed according to racial values and characteristics. The German state took it upon itself to interfere in the reproductive rights of citizens in a number of ways based upon the prejudices of Nazism and the myth of Aryan superiority. That’s why article 12, ‘the right to marry’ (along with article 14 ‘freedom from discrimination’) are so important.

ARTICLE 12

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right. Nobody can interfere with this right, especially if their objection is based upon arbitrary or prejudicial grounds.

Sacked: Registrar Ladell
Sacked: Registrar Ladell
Consider the case of Ms Ladell, the Christian registrar who refused to officiate in a civil partnership between two gay men. Ms Ladell was denying the men their legal right to engage in a civil partnership because her religion (qualified right) told her that homosexuality is ‘an abomination’. Therefore marriage before God is neither consistent with Christianity nor indeed possible within the Christian sense of the word. However this was not a marriage ‘before God’. It was a civil partnership before the state – a very different proposition.

In fact the term ‘civil partnership’ itself only came about so that a distinction could be made between religious marriage and state institution. The newspapers may talk about ‘gay marriage’ but the law does not.

Remember what we said about religious freedom – it’s a right so long as its expression does not interfere with the lawful rights of others. In this case Ms Ladell’s actions very definitely impeded the rights of others and also constituted discrimination on grounds of sexuality. That’s why she was sacked and why she lost her appeal. This may seem harsh but to restrict gay relationships on religious grounds is no more reasonable than to restrict inter-racial marriage on ideological grounds.

Mormon missionaries don't always know about the racist beginnings of their church
Mormon missionaries don’t always know about the racist beginnings of their church
Indeed some religions have done just that. The Church of Jesus Christ and Latterday Saints (Mormons) prohibited marriage between lack and white citizens until the late 1970s. This may be religious doctrine but it does not have any basis in law. The right to religious expression does not equate to the right to discriminate against other people and their right to marry.

About ‘The Convention’

This series of posts first appeared on Stuart’s blog in June 2011. It is not intended to be a comprehensive or even particularly authoritative reference guide to the ECHR. Rather it is a brief introduction to a much larger and infinitely more fascinating subject. You can download the entire series in PDF format here: https://stuartsorensen.wordpress.com/amj-freebies-downloads-and-services/

The Convention 15: The right to association

We have already established that the European convention is a response to the Nazi regime of Adolf Hitler and the creation of the Third Reich. What isn’t quite so well known is the way that German ‘National Socialism’ attempted (and in large part succeeded) in preventing people from associating with each other. The idea was that if people couldn’t come together in large enough groups they wouldn’t be able to oppose the Nazi party’s dominance of the country.

On the 27th February 1933 an arson attack on Berlin’s Reichstag (the German equivalent of the UK’s houses of Parliament) was blamed on German Communists. Most people believed at the time that the fire was actually set by the Nazis themselves as an excuse to demonise their most prominent political rivals. It certainly gave them an excuse to outlaw not only the communist party but also any other associations that might threaten their all encompassing control of German society.

Holocaust dead political prisonersOn February 28th, the very next day, Hitler passed the ‘Defensive Measures Act’. He told aides that:

“The German people will have no sympathy with lenience. Every communist official will be shot where he is found. The communist deputies must be hanged this night. Everything connected with the communists is to be settled. No more indulgence will be afforded the social democrats or the Reichsbanner.”
Adolf Hitler (February 1933)

“My measures will not be crippled by any judicial thinking. I don’t have to worry about justice! My mission is to destroy and exterminate, nothing more!”Herman Goering (March 1933)

The Defensive Measures Act (1933) restricted:
 Personal liberty;
 Free expression of opinion;
 Assembly and association;
 Postal, telegraphic and telephonic communications;
 Domestic privacy;
 Property ownership.

This opened the door for mass arrest and summary execution of political ‘undesirables’ from communists to liberals, democrats and ‘middle of the road’ political activists of all persuasions.

In direct response to this Article 11 concerns itself with freedom of association and ideology. In combination with other articles (predominantly articles 5, 8, 9 & 10) it protects our right to form associations and to meet and discuss our ideas with others.

ARTICLE 11

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. this article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

Since the early days of the Convention the courts have produced a stream of judgements providing guidance in balancing the right of free association with the need to protect society and the rights and freedoms of others. One definite principle is that mere difference of opinion is not likely to be sufficient grounds to prevent association. A recent case involved the Associated Society of Locomotive Engineers and Firemen (ASLEF).

ASLEF logoASLEF vs UK clarified that a union cannot expel a member simply for belonging to a political organisation unless other problems also apply. The case concerned a far right BNP activist belonging to the traditionally left wing ASLEF union. That is because association is not usually anything more than a private affair. It is possible for the law to intervene in associations where there are reasonable grounds to do so based upon past or likely behaviour. It is also possible in the right circumstances for particular groups or associations to be declared illegal per se but again there needs to be good reason. It ought to be more than merely a difference of opinion.

So thanks to the European Convention on Human Rights you and I have the right to meet and discuss our grievances against the prevailing government. We can form pressure groups or political parties and we can even take our grievances out onto the streets so long as we respect the lawful rights of others to go about their business.

Ironically the extreme far right groups most opposed to the convention are the ones benefitting most from it (and the ones most likely to remove it if ever they achieved power themselves). But that’s not such a problem. The Convention affords these groups the right to meet and to demonstrate but it also prevents them from removing that liberty from others. That’s the price we pay for liberty – we have to accept the right of others to oppose (for others) the very liberty they enjoy themselves. As Voltaire allegedly said:

“I disagree with what you have to say, but I will
fight to the death to defend your right to say it.”

About ‘The Convention’

This series of posts first appeared on Stuart’s blog in June 2011. It is not intended to be a comprehensive or even particularly authoritative reference guide to the ECHR. Rather it is a brief introduction to a much larger and infinitely more fascinating subject. You can download the entire series in PDF format here:

The Convention 14: The right to freedom of expression

According to the European Convention on Human Rights…..
1. “Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Stephen Fry on 'Taking offence'
Stephen Fry on ‘Taking offence’

This has been the source of much misunderstanding, confusion and offence over the years – never more so than today in the United Kingdom of 2011. Fuelled by sensationalist media hype and hatemongering racists playing the ‘freedom of speech’ card many people are far from clear about what article 10 really does and does not say.

One thing that really ought to be made clear from the outset is this:

There is no law that protects people from being offended
In fact the right to express oneself, however offensive others may find your statements is a basic and fundamental right of a democratic state.

Such was the decision of the European court in Strasbourg in the case of Handyside v UK (1976). It is clear in law that the right to express oneself is the ‘default’ and that this right can only be curtailed if the law expressly makes it so. To put that another way…

European citizens can say anything they like unless there’s a specific law against it. To illustrate….

It’s OK to criticize the Bible, however many Christians might be offended by your words. It’s even OK to criticize Christians themselves for advocating such a primitive, discriminatory and barbaric set of rules if that’s what you want to do but it’s not OK to advocate hurting Christians or burning their churches. That’s because advocating harm breaches ‘incitement’ and ‘public order’ laws and also article 9 of the ECHR as previously discussed.
Say what you like – that’s expressing an opinion but don’t imagine that it’s OK to go further and interfere with the rights of other people to live as they choose to.

The reverse of this is that the Christian churchgoers who are protected by Article 10 are also bound by it. That’s why, for example, they find themselves in court for discrimination when they treat gay and lesbian hotel guests differently or attempt to ban women from holding positions of authority among their ranks.
The law may not agree with the tenets of Christianity (try owning slaves on religious grounds or stoning children for playing on a Sunday for example and see what happens) but that doesn’t mean that it will allow anyone to be abused for their belief. Their actions are another thing altogether too.

I’ve intentionally focused upon Christians here to make a point by the way. So far as I know not a single one of my Christian friends would advocate keeping slaves or stoning children. Nor would they advocate eternal damnation for drinking both beer and wine at the same setting and most of them don’t particularly care about other people’s sexuality. But their holy book (the bible) is very clear on these issues and not really very nice about them.

The fact is that it would be ridiculous to condemn all Christians because of a few barely read passages in Leviticus or a throwaway line in one of St. Paul’s epistles. People are much more complicated than that – and on the whole much better. That’s why most (alas not all) Christians I know are genuinely nice people. Consequently it’s OK to criticize the idea of Christianity but not to discriminate against the individuals themselves.

The same, incidentally is true for all religious beliefs. It’s fine to criticise religious ideas – I do it all the time. In fact I just did in the preceding few paragraphs. And guess what – no matter how many people might be offended by that paragraph I have a perfect right to say it. Without the legal right to express our different opinions and views society could never develop, diversity would become narrower and narrower and our nation would revert to the sort of enforced conformity of Puritanism or some fascistic police state.

But we can’t go around stirring up trouble and we can’t be racist because there are specific laws preventing that sort of rabble rousing. Enter the English Defence League.

As regular readers of my blog will know I am no fan of the EDL. On the contrary I consider them to represent the very worst of reactionary and ill-considered bigotry dressed up in a cloak of patriotism that has almost nothing to do with their real purpose. I say ‘almost’ nothing…

What they do demonstrate, at least sometimes, is a genuine concern over the welfare of citizens who may find themselves unfairly judged by religious courts. They’d be more credible if they also opposed Christian and Jewish religious courts instead of focussing purely upon Islam but that’s unlikely to happen. After all their beef isn’t really with Islam – it’s with people who aren’t white skinned. They just use religious extremism as a convenient cover. But let’s apply article 10 to their behaviour and see what we come up with.

Article 10 supports the right of the EDL to protest peacefully and to put their point across.

Article 10 supports the EDL in criticising Islam as well as in debating the relative merits of Islam as opposed to other systems of morality.

Article 10 does not support the EDL in attacking Muslims, in setting fire to Mosques or in inciting violence and civil unrest. That’s why so many EDL members have found themselves in court recently and why so many of them, including their leader, Stephen Yaxley Lennon, have been banned by the courts from attending EDL demonstrations.

Freedom of expression is one thing – attacks against other citizens and blatant discrimination are quite another.

The right to freedom of expression in Article 10 is not an absolute right. It is a qualified right.

“This means that formalities – including Contract Law as laid down by each member state, conditions, restrictions or penalties may be imposed on the exercise of this right if they are prescribed by law, pursue a legitimate aim and are necessary in a democratic society. This latter condition requires the means employed to be necessary and proportionate to the aim pursued. The legitimate purposes for which freedom of expression can be limited are set out in Article 10(2)”

An interesting and recent ECtHR case involved a Turkish journalist who criticised Islam but who stopped short of attacking or inciting violence against Muslims themselves. I reproduce the summary (together with weblink) below.
“2. Aydin Tatlav v. Turkey, 2 May 2006 (blasphemy, (not) an abusive attack on a religion or its symbols)

In 1992 Erdoğan Aydin Tatlav, a journalist living in Istanbul, published a five volume book under the title Islamiyet Gerçeği (The Reality of Islam). In the first volume of the book he criticised Islam as a religion legitimising social injuries portraying them as “God’s will”.

Following a complaint at the occasion of the fifth edition of the book in 1996, the journalist was prosecuted for publishing a work designed to defile one of the religions (art. 175 Crim. Code). He was sentenced to one year’s imprisonment, which was converted into a fine.
Before the ECtHR Tatlav complained that this conviction had been in breach of Article 10 of the Convention, referring to the right of freedom of expression “without interference by public authority”. Essentially, the Court evaluated whether the interference in the applicant’s right could be legitimised for the protection of the morals and the rights of others as “necessary in a democratic society”.

The Court is of the opinion that certain passages of the book contained strong criticism of religion in a social-political context, but that these passages had no insulting tone and neither contained an abusive attack against Muslims or against sacred symbols of Muslim religion (See ECtHR I.A. v. Turkey, 13 September 2005, Iris 2005/10, 3-

4). The Court did not exclude that Muslims could nonetheless feel offended by the caustic commentary on their religion, but this was not considered a sufficient reason to legitimise the criminal conviction of the author of the book. The Court also took account of the fact that although the book had first been published in 1992, no proceedings had been instituted until 1996, when the fifth edition was published. It was only following a complaint by an individual that proceedings had been instituted against the journalist.

With regard the punishment imposed on Tatlav, the Court is of the opinion that a criminal conviction involving, moreover, the risk of a custodial sentence, could have the effect of discouraging authors and editors from publishing opinions about religion that were not conformist and could impede the protection of pluralism, which is indispensable for the healthy development of a democratic society.

Taking into regard all these elements of the case, the Strasbourg Court considers
the interference by the Turkish authorities disproportionate to the aims pursued.
Consequently, the Court holds unanimously that there has been a violation of Article 10 of the Convention (see also ECtHR Giniewski v. France, 31 January 2006, Iris 2006/4, 2-3)

ECtHR (Second Section), Aydin Tatlav v. Turkey, Application no. 50692/99 of 2 May 2006”

About ‘The Convention’

This series of posts first appeared on Stuart’s blog in June 2011. It is not intended to be a comprehensive or even particularly authoritative reference guide to the ECHR. Rather it is a brief introduction to a much larger and infinitely more fascinating subject. You can download the entire series in PDF format here: https://stuartsorensen.wordpress.com/amj-freebies-downloads-and-services/