You’ll never walk alone – Hillsborough and the Human Rights Act

by Human Rights Consortium on April 27, 2016

Hillsborough and HRAWe are pleased to welcome this guest post from Dr Claire McCann, Human Rights Officer (Rights in Practice) with the Human Rights Consortium.

Yesterday was a significant day for the families of those people killed in Hillsborough, who have fought so hard to discover the truth of what happened on that fateful day 27 years ago when the FA Cup semi-final was transformed into one of the worst sporting disasters in history. The crucial finding of unlawful killing by the jury recognises the catastrophic errors in the policing of the tragedy, something that would never have come to light without this new inquest. An inquest which also put to rest any suggestion that the supporters themselves had been to blame for the tragedy and vindicated all those who died.

In the aftermath of the Hillsborough disaster, the families of the 96 people who died were faced with a systemic attack on the memories of their loved ones with lies circulated about the behaviour of fans and accusations of drunkenness and hooliganism were widespread. The original inquests into the deaths of the 95 of the 96 people who died as a result of the disaster reached a finding of accidental death. This was repeated by the inquest into Tony Bland who died as a result of his injuries in 1993. The families of the 96 never accepted this finding and had questioned key decisions of the original inquest, most significantly the 3.15pm cut off point for the time of the death – which meant that there was no inquiry into anything that happened after that point. Moreover, the investigation was limited to the questions of ‘when’ and ‘where’ each deceased person had died, but the jury could not look at the question of ‘how’ the death had occurred.

This new inquest into what happened in Hillsborough on 16 April 1989 would not have happened had it not been for changes made to the coronial system in light of the obligations contained in article 2 of the ECHR on the right to life. It is now accepted that the right to life not only means that the state should not kill people, it also requires the state to properly investigate deaths [McCann (1995) 21 EHRR 97] – an obligation which has been very important in Northern Ireland. Even though the events of the Hillsborough disaster took place prior to the Human Rights Act being enacted, it is now established that even if the death occurred prior to 2000 (when the Human Rights Act entered into force) that it must comply with the rights to life in article 2 [McCaughey [2011] UKSC 20]. This meant that a new inquest must inquire not only into the questions of ‘when’ and ‘where’, but also look at the question the crucial question of ‘how’. This question of ‘how’ should cover both ‘by what means’ death occurred and ‘in what circumstances’.

This more expansive interpretation is a pointed reminder that for the families of the 96 people who died, the truth required more than just being given an arbitrary cut off time of death and needed more detail into what actually happened in Hillsborough that day. The verdict of the jury vindicates the supporters and makes it clear that the people who died were in no way responsible for what happened. Instead it is the catastrophic failures of senior police in planning for the semi-final and the management of the crowds entering the stadium which was the cause of the crush in the pens. The verdict makes it clear that the decision by the commanding officer on the day to open the exit gates and the failure to ensure that the supporters did not continue into the pens that were already filled to capacity was the cause of the crush. Significantly, the inquest also found failings in the design of the stadium and that both Sheffield Wednesday FC and their engineers bore responsibility for contributing to the disaster, and that the emergency response of both the police and the ambulance service on the scene was deficient.

Sadly, there is a certain irony that, as the families of the 96 people who died as a result of the Hillsborough disaster were celebrating finally having a verdict which recognises the truth of what happened to their loved ones, the Human Rights Act, the very mechanism the relatives relied on for the truth, was once again being threatened with repeal by senior members of the government.

On Monday the Home Secretary, Theresa May, called for the UK to withdraw from the ECHR on the basis that it ‘binds the hands of parliament, adds nothing to our prosperity and … does nothing to change the attitudes of governments like Russia’s when it comes to human rights’. This was the subject of an urgent question in the House of Commons yesterday, which the Home Secretary did not attend but the Attorney General, Jeremy Wright, answered on her behalf. In his introductory remarks he recognised the importance of the verdict of the inquest into the Hillsborough disaster and the right to fair trial before reiterating the government mantra that the Human Rights Act was being abused and a British Bill of Rights was necessary to break the link with the Strasbourg court. He made it clear that despite Theresa May’s comments to the contrary, it was the government’s intention to remain a party to the ECHR, however, he further stated that ‘if we cannot achieve a satisfactory settlement within the ECHR, we may have no option but to consider withdrawal’. It is no real surprise that the government is pushing for the reach of the Human Rights Act to be restrained. Human rights are a mechanism which allow for people to hold public bodies to account, including the police and the ambulance services. Any threat to the Human Rights Act also threatens ordinary people’s access to justice.

Once again detail was light on the actual content of the proposals for human rights reform, but the Attorney General assured the House of Commons that there would be a full consultation on any such proposals. It was for Lady Sylvia Hermon to raise the particular concerns of many in this jurisdiction which have been much ignored:

‘I was horrified—absolutely horrified—by her [Theresa May’s] suggestion yesterday that the United Kingdom would leave the European convention on human rights. … After 30-plus years of appalling violence in Northern Ireland, the Belfast agreement signed on Good Friday was hard won after hard negotiations, and the European convention on human rights was an integral part of that agreement. It was voted on in two referendums, in Northern Ireland and the Republic of Ireland, by thousands and thousands of people. I want the Attorney General not to assure me that there will be consultation, but to tell me what consideration the Home Secretary gave to the implications for the peace settlement in Northern Ireland, and particularly the implications for the Belfast agreement, before she made her statement yesterday.

There was only a vague response on the complexity of the issue from the Attorney General and offers of an opportunity to discuss the matter further when proposals are brought forward. Not much comfort to Lady Hermon or any of us concerned about the impact of any human rights reform on the constitutional settlement in Northern Ireland.

The irony of the Attorney General on the one hand, referencing in his opening remarks the importance of the inquest verdict and right to fair trial of any potential prosecutions brought in light of this verdict, yet on the other hand not connecting any of those prosecutions to the strength of the ECHR and the Human Rights Act is not lost on us. Particularly given the role of the UK, and the Northern Ireland cases, in setting the standards of those article 2 (right to life) and article 6 (right to fair trial) protections through our troubled past. To repeal the ECHR and Human Rights Act would move way beyond ‘justice delayed is justice denied’ to ‘justice removed is no justice at all’.

Without these human rights protections and standards, where would that have left the victims of the Hillsborough disaster and their families?

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