A SUSPECTED car thief who climbed on to a roof last month to evade arrest, and threw bricks and tiles at police, was supplied by officers with a KFC takeaway, a soft drink and cigarettes during a rooftop siege to “ensure his human rights”. Not quite what Jeremy Bentham had in mind when the 19th-century philosopher described human rights as “nonsense upon stilts”. But a good example of continuing ignorance about the requirements of the Human Rights Act 1998.
The recent speech by David Cameron, leader of the Conservative Party, at the Centre for Policy Studies on the need for “a modern British Bill of Rights” and the comments of John Denham, chairman of the House of Commons Home Affairs Committee, that judges are threatening to provoke a “constitutional crisis” were similarly ill-informed about human rights law.
Mr Cameron began by suggesting that “the Human Rights Act has made the fight against crime harder”. But the examples he gave all concerned the incompetence of public authorities: the Parole Board decision to release on licence a convicted rapist who then committed murder; a police decision not to publicise photographs of wanted criminals because of their “right to privacy”; and the failure of the Home Office to deport foreign offenders. None of these decisions was required by the Human Rights Act.
The appropriate response is not to amend legislation, but to ensure officials are properly trained, informed and resourced. Human rights legislation does not require, or excuse, the weakness of the State in preventing, detecting and punishing crime. There is no incompatibility between believing that those suspected of crime should have a fair trial, and ensuring that if convicted they should be given severe sentences which deter others.
Then Mr Cameron turned his attention to his main concern: that “the Human Rights Act has a damaging impact on our ability to protect our society against terrorism” because of the judgment of the European Court of Human Rights in 1996 in the Chahal case. He explained, correctly, that the court ruled that this country was prohibited from deporting a foreign citizen who was a threat to our national security because we were seeking to remove him to a country in which there was a real risk that he might be tortured. Article 3 of the Convention prevents a State from balancing its own interests against the risk of ill-treatment because the prohibition on torture is absolute.
It is the Chahal judgment that led the Government to detain without trial foreign nationals suspected of involvement in terrorism. In 2004 the House of Lords ruled that this policy was itself a breach of the Convention. Parliament then enacted, after limited debate, a system of control orders, the legality of which is now being considered in the courts. In the High Court, Mr Justice Sullivan has held that these control orders are unlawful because there was not a fair procedure and also because they are so severe that they amount to a deprivation of liberty in breach of Article 5 of the Convention. Those decisions provoked the criticisms by Mr Denham. Each of the judgments is under appeal to the Court of Appeal.
According to Mr Cameron, the solution to Chahal is a British Bill of Rights. No competent lawyer could have advised Mr Cameron on this analysis, and the proposed solution. There are at least four basic errors.
First, the problem is not the result of the Human Rights Act. The United Kingdom lost the Chahal case in 1996 under a Conservative Government before the Human Rights Act was a twinkle in the eye of Tony Blair. Unless the United Kingdom denounces the European Convention on Human Rights and withdraws from the Council of Europe (which would also mean leaving the European Union), we will remain bound by the Chahal judgment. Mr Cameron made clear that he is not proposing such drastic action.
Secondly, Mr Cameron suggests that “other European countries have taken steps to protect their vital interests with reservations” to the European Convention. But Article 57 allows only for a reservation when a country joins the Convention (which Britain did in 1950) and only in respect of specific legislation then in force. I am aware of no relevant reservation to Article 3 by any other state party to the European Convention. In any event, there would be substantial doubt as to the validity of any such reservation, given that torture is prohibited by a fundamental rule of international law.
Thirdly, Mr Cameron suggests that Germany has a “solution” in that its Basic Law, “a clearly codified constitutional document”, encourages the European Court to apply the “margin of appreciation” and “defer” to German national rules and values. Therefore, he suggests, we would do better if we had our own constitutional document. It is true that the European Court recognises that states are entitled to a degree of discretion where rights and interests need to be balanced under the Convention. But this has no relevance to Chahal. That is because Article 3 is an absolute prohibition of torture, and involves no balancing of interests. In any event, it makes no difference to the European Court when applying the margin of appreciation whether national rules are set out in a constitutional document or in a statute. The European Court is interested in substance, not form.
Fourthly, Mr Cameron argued that a British Bill of Rights “should protect the fundamental rights set out in the European Convention in clearer and more precise terms”. But redrafting of domestic law is not going to alter the obligations established by Chahal. Indeed, redrafting fundamental rights would simply produce confusion as to what extent the new statement differed in substance from the Human Rights Act and the European Convention.
Mr Cameron said that he would be announcing “a panel of distinguished jurists and other experts” to help in the drafting of the British Bill of Rights. No jurist or expert who values their reputation should have anything to do with a proposal that is so ill-informed about basic principles of law, so incoherent as an expression of policy aims, and so inevitably doomed to failure as a response to the Chahal judgment.
There is no constitutional crisis. On the contrary, the constitution is working well. Judges are withstanding political pressure and doing their job by exercising their judgment to apply the laws enacted by Parliament, including the Human Rights Act. If the Government does not like the rulings, it is entitled to appeal to higher courts. The only crisis is a synthetic political crisis created by those who wish to blame judges for government incompetence.
What then is to be done about people who are suspected of involvement in terrorism but who cannot be deported because they would face torture abroad? The Government and the Opposition need to stop posturing and focus calmly on the three available options. The first is a criminal prosecution using surveillance evidence but with protection for the anonymity of sources. The second option is to impose severe restrictions on the free movement of suspects, but with a fair procedure before such measures are implemented and with the measures stopping short of imposing controls that in substance amount to detention without trial. The third option is to find a country to which the suspects can be removed where they would not be tortured.
Of course, it would be much more convenient for the state if it could lock people up without trial. But we live under the rule of law and not under the rule of editorials in The Sun. You do not need to be a terrorist suspect to value that principle.
The author is a practising barrister at Blackstone Chambers in the Temple and a Fellow of All Souls College, Oxford
