One of the purposes of this thought experiment was to explore the values that would be compromised if such moves towards a ‘security model’ of criminal process were introduced. The presumption of innocence emerges as a foundational value, from which several of the other principled arguments flow. So far as European human rights law is concerned, it is apparent that five of the Article 6 rights could only be modified if a derogation were entered under Article 15 (duty to answer questions, very speedy trials, withdrawal of legal aid, presumption of dangerousness, release authorised only by Home Secretary), whereas the other three could be modified more easily because their boundaries appear to be more flexible. Thus the legislature has modified the Article 6, paragraph 3(d) right to examine witnesses by introducing new provisions in the Criminal Justice Act 2003; the Strasbourg jurisprudence might be read as permitting the legislature to reverse the burden of proof in terrorist cases, although the House of Lords has ruled against this in domestic law;84 and there is no need to legislate for the admissibility of evidence obtained by a breach of a Convention right because the courts already allow this, save in the case of evidence obtained by torture. This survey further demonstrates the contestability of human rights, although the margin of contestability is small in five of the rights and much wider in the other three.
V. THE VALUE OF HUMAN RIGHTS
Although a major reason for recognising human rights is to defend the interests of individuals or minorities against those of the majority or the collectivity, it has been argued here, specifically by reference to European human rights law, that a more nuanced analysis is required to capture the true value of human rights. In considering the alleged challenge to human rights from the growing emphasis on security, particularly in the context of ‘anti-terrorist’ measures, we have noted a number of approaches to human rights—the absolutism of some human rights advocates, who regard human rights as indivisible and of equal weight; the relativism of some human rights sceptics, who regard human rights as part of a ‘culture of controversy’ in public affairs but not as conclusory or even as trumps; and a middle way adopted by some judges and politicians, which claims to recognise the value of human rights but argues that they must always be balanced against the public interest.
All three approaches to human rights are rejected here. The absolutist argument goes too far in denying that there can be different levels and strengths of human rights, and also tends to overlook the elements of indeterminacy and negotiation that would be an inevitable part even of an absolutist system. The sceptical approach appears to deny that there is any point to ranking and weighting human rights: scepticism may be healthy in confronting the absolutists, and in confronting those, typically governments, who make empirically based assertions (about the impact on security of curtailing a particular right) without providing the evidence to any scrutineer, but one of the purposes of this chapter has been to argue that progress can be made in structuring arguments about human rights. As for those who claim that it is all a question of balance and/or proportionality, their standpoint is far too crude to do justice to the subject matter.
It has been argued here that human rights are both fundamental and contestable. There is also considerable indeterminacy in the scope of some human rights. But what has emerged most clearly from this study is that, just as it is right to maintain (as do the Siracusa Principles) that ‘respect for human rights is part of ordre public’,85 so it is also right to recognise that the structure of human rights can allow weight to be given to security considerations. This should not be through some unanalysed and heavily rhetorical notion of balance or proportionality: a more appropriate and probably more fruitful approach lies through (a) the establishment of a hierarchy of human rights, and then (b) the development of patterns of reasoning that allow security considerations to play a different role in respect of rights of different weights. Examples of such a strategy, drawing on European human rights law without implying that it is beyond improvement, were given in section III above. It remains true, however, that much will still depend on the disposition of the decision-making body, be it judicial or otherwise, and on the quality and quantity of the evidence adduced on crucial issues of security.
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