Theresa May: without the Human Rights Act and ECHR there would have been no new Hillsborough inquest
David Allen Green, a lawyer and Financial Times journalist, writes:
On Monday, Theresa May gave a speech where, contrary to the policy of the UK government, she called for the country to leave the European Convention on Human Rights. It was a curious speech for the Home Secretary to make – indeed for any UK Home Secretary to make. This is for many reasons, not least that the Good Friday agreement explicitly requires that the ECHR have ongoing legal effect in NorthernIreland . . .
Whatever the explanation, it showed a certain superficiality in her approach to human rights: the assertion of a populist view without regard to the relevant facts or to its practicality. And this is not the first time: in 2011 she told her party conference that an illegal immigrant could not be deported because they had a pet cat. “I am not making this up,” she assured her audience. She was, of course, making it up. The case in question was not dependent on a pet cat. But Theresa May did not care. She had a political point to make, and being accurate would not have been helpful . . .
The jury in the new Hillsborough inquest returned a verdict of “unlawful killing” in respect of the 96 people who died as result of the events on April 15 1989. The verdict was a triumph for the families of the dead who have campaigned for 27 years for justice. The scope of the new inquest, however, was only possible because of the Human Rights Act 1998, which gives the articles of the ECHR effect in domestic law.
The first inquest had in 1991 returned a verdict of “accidental death”. But this was on a markedly narrow investigation of what had happened. When that verdict was quashed in 2012 and a new inquest ordered, the High Court made it a condition that the new coroner would have to consider whether Article 2 of the ECHR applied and, if so, how. Article 2 provides the “right to life” and part of that right is a duty on the State to ensure suspicious deaths are properly investigated.
In 2004 the House of Lords, then the UK’s highest court, held in the Middleton case, which involved a death in custody, that the effect of Article 2 being part of domestic law meant that it was no longer enough for an inquest just to decide the means by which a person died; an inquest now also had to determine “in what circumstances” the death occurred. This meant, at a stroke, coroner’s inquests could become more wide-ranging, especially where those acting on behalf of the State, such as the police, were involved.
As Mark George QC, who acted for 22 of the families at the new inquest, explained to me:
“This inquest would not have been possible without the ECHR and the Human Rights Act. The right to life enshrined in Article 2 of the Convention was the basis on which a jury was able to decide this important case. This inquest proves how crucial such legislation is to righting wrongs and enforcing people’s rights.”
He referred readers to an article by David Conn in the Guardian: ‘a powerful critique of the legal process in the new Hillsborough inquest’. Extracts
“As I’ve always said, we won’t have the truth about Hillsborough until we have the full truth about Orgreave.
“Finally, this report provides proof of what has long been suspected – that underhand tactics were used first against South Yorkshire miners before being deployed to much more deadly effect against Liverpool supporters. It is clear evidence of the rotten culture that has bedevilled this force for too long. Like the people of Liverpool, the mining communities of South Yorkshire now need to be told the truth about their Police force and the policing of the miners’ strike.
“On the back of these revelations, Theresa May must now order a disclosure process not just on Orgreave but on the policing of the miners’ strike.
“But over 27 years, the whole Hillsborough ordeal has sadly also illustrated why too many people who go to court do not find justice, but only the next phase of the nightmare which sent them there in the first place”.
David Allen Green ends: “Put simply: without the Human Rights Act and ECHR there would not have been this new Hillsborough inquest. Examples like this of how the ECHR in practice is improving domestic law will make it more difficult over time for the Home Secretary and her allies to use human rights as a token in the game of politics. Even superficial politics can lose their shine”.