Chris Fleming | Creative CommonsOvernight in Australia, the Prime Minister announced new counter-terrorism powers which he intends to introduce in a bill in the next few weeks. He said there’d be

New powers for police at ports to seize passports, to stop suspects travelling and to stop British nationals returning to the UK unless they do so on our terms.

Perhaps because in September, at an earlier stage of work on this proposal, the Prime Minister has in the past referred to a version of this idea by saying

what we need is a targeted, discretionary power to allow us to exclude British nationals from the UK

or perhaps because No. 10 is calling the new power a “temporary exclusion order”, some media reports are focusing only on the “exclusion” element of the plan, and thinking Britons would be entirely prevented from returning here for two years.

This Channel 4 report for instance gives the impression British citizens would be “banned” from entering the UK, and this piece in the Independent suggests they’d be barred for two years, as does the headline on this Newsweek piece. These confusions may arise from the government’s attempts to make the new powers sound as tough and exclusionary as possible.

If that were the plan, it might indeed fall foul both of international law on statelessness, and on our own domestic law: British citizens have a right of abode in the UK, which includes the right to return here from abroad. I think this confusion that may be driving some early criticisms of the proposal.

But I don’t think it is the plan at all. Like Dominic Grieve, I understand the proposal as involving no “ban” on return at all – merely a ban on what might be called an unarranged return. Those UK citizens subject to “temporary exclusion orders” would be free to come home at any time, by arrangement with British authorities. A Downing Street spokesman confirmed my understanding this afternoon. This is how the plan is meant to work.

If the Home Secretary reasonably suspected someone of involvement in terrorist activity abroad, she could make a temporary exclusion order against him. That would cancel his passport, and put him on a “no-fly” list. As a result it would difficult for him to return to the UK under his own steam. He might be able to cross borders in the Middle East, but could not board a flight to London from Ankara or Istanbul. The order would last for two years.

But if I lost my passport abroad, I’d go to the British consulate – and so could the “excluded” person, if he wanted to go home during the two-year period. He’d be free to come back, by arrangement: perhaps under a restricted travel document allowing him only to board a pre-arranged flight; in all likelihood being escorted by officials of a more or less shadowy sort; and no doubt having a kind of official reception on landing. Once here, he could be arrested for a suspected offence or be subject to a “TPIM” (a terrorism prevention and investigation measure). Or the temporary exclusion order itself might impose separate conditions on him.

I think what’s intended is analogous in a way to the “three walled prison” the Labour government built round foreign terror suspects at Belmarsh a decade or so ago. If you remember, those were people who could not lawfully be deported, so were detained indefinitely – unless they volunteered to return home, in which case they were free to go. It was a plan ruled incompatible with human rights by the House of Lords in “the Belmarsh case”, A v Home Secretary, in 2004, because a disproportionate interference with liberty, and because it discriminated against foreign nationals.

Rather than a three-walled prison, a temporary exclusion order would be an “open funnel” back to the UK. A person subject to one would be free to come home at any time; it’s just that he’d be funnelled back here by a particular route. Yes, he’d be stuck if he was determined not to come back in that way (and the temporary exclusion order would be renewable, by the way). But he’d be stuck only in the same sense as someone who refused ever to go through customs; or who refused ever to fly in any plane, go on any boat and enter any tunnel. That person would have to remain abroad – but not because of any ban.

So this would neither strip terror suspects of British citizenship, not render them practically stateless nor, as Liberty has put it, “dump” them on other countries. The UK would not be refusing to accept them, or refusing to cooperate in their return to the UK. So I don’t think the proposal runs into international law problems.

While article 12.4 of the International Covenant on Civil and Political Rights (the ICCPR) says

No one shall be arbitrarily deprived of the right to enter his own country

that is not what the proposals would do.

Nor do I think there’s a domestic law issue. British citizens have the “right of abode” in the UK which, as section 1(1) of the Immigration Act 1971 makes clear, includes the right to leave the UK and come back:

All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person.

As you can see from this provision, the right to come into the UK is not unconditional: there is no absolute right to enter “without let or hindrance”. The right is to enter without let or hindrance except such as may be … lawfully imposed on any person. The government’s argument would be (and I think it’s a good one) that a temporary exclusion order would impose a hindrance on entry into the UK; and that the hindrance would be lawfully imposed under the legislation empowering the Home Secretary to make such orders.

Could there be a human rights problem? I doubt there’s an insurmountable one. A temporary exclusion order would not interfere with a suspect’s right to respect for family life, for instance: it would not stop him from coming back to be with his family in Britain. And even if I’m wrong about that, the article 8 right to family life is not unqualified, and whatever interference there might be with it could surely be defended as proportionate in national security terms.

There could be a breach of the right to a fair hearing, if there were no way of challenging a temporary exclusion order. But I’d be surprised if the legislation precludes a legal challenge. Since article 5 of the European Convention on Human Rights permits detention on suspicion of an offence, to secure the fulfilment of any obligation prescribed by law and to prevent someone effecting an unauthorized entry into the country, arrest and detention of an “excludee” on landing in the UK (who would by definition by suspected of a terrorism offence, at least by the Home Secretary) would probably be legally defensible where it was necessary.

The temporary exclusion order would not in itself interfere with liberty – at least, I’d be very surprised if a court said so – and even if it did, it would surely do so proportionately. Nor is there any question here of discrimination against Britons. So I don’t think this proposal is as vulnerable as the old three-walled prison.

As a matter of interest, Britain has not ratified Protocol 4 to the European Convention on Human Rights, article 3.2 of which says

No one shall be deprived of the right to enter the territory of the State of which he is a national.

But even if we had ratified, it, this provision would not be breached any more than article 12 of the ICCPR would.

I can just about imagine an argument that EU law gets in the way of the proposal. But a British citizen trying to travel home from from Syria or Turkey would not be a national of another member state exercising free movement rights, and so would not fall within the EU citizens’ free movement directive (see article 3.2); and even as a UK citizen, coming back from fighting Turkey as opposed to a job in France, say, he would not be exercising Surinder Singh-type reverse free movement rights when coming back. So EU law’s unlikely to help him.

Of course we don’t know the detail of the proposal yet; there may be some devil in it. But on what we do know, I think the government’s on defensible legal ground.

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The former Attorney General Dominic Grieve appeared on Radio 4’s World at One Today to discuss the government’s new plan to “regulate” the return to the UK of those who, for instance, have gone to Syria to fight for the “Islamic State”.

Grieve said his impression was that the new proposals – announced by the Prime Minister overnight in a speech to the Australian Parliament – do not seem aimed at “banning” UK citizens from returning to the UK, which they have a legal right to do, and which would risk breaching international law by making them stateless.

My understanding of the proposals is the same as Grieve’s: the plan is to force people to arrange their return to the UK with British authorities, rather than in any sense to “ban” them from coming back. On that basis, I think there’s a good chance the new regime would be legally defensible.

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In a letter published in today’s Telegraph, half a dozen senior retired judges call for Britain to “opt back in” to the European Arrest Warrant system. Parliament is expected to vote next week on the government’s proposal to remain in the EAW system and other key European justice measures.

The letter’s signed by the former Supreme Court President Lord Phillips together with two of Britain’s former judges of the European Court of Justice, Sir Konrad Schiemann and Sir David Edward; the former British Advocate General of the ECJ, Sir Francis Jacobs; and retired Court of Appeal judges Sir Henry Brooke and Sir Anthony Hooper. They are joined by a couple of dozen leading barristers and solicitors, former senior police and political figures including the former Home Secretary Charles Clarke and the former independent reviewer of terrorism legislation Lord Carlile QC, as well as leading legal academics.

Without the European arrest warrant, they say,

other EU members may be unable speedily to extradite suspects like Hussain Osman or Jeremy Forrest to Britain – both in jail after use of the EAW.

They warn that Britain also risks becoming a safe haven for fugitives from justice,

a handful of them British citizens, but the vast majority foreign nationals wanted for crimes elsewhere in Europe.

The letter cites recent statutory changes it says should help prevent long pre-trial detention, and prevent European arrest warrants being used to pursue minor offences. It argues that Britain can only lead reform of EU criminal justice legislation by being part of the system.

There is no credible alternative to the EAW … Resort to international law on extradition would be slow and ineffective.

I strongly support the case made in the letter. The government would be mad to withdraw from the European arrest warrant which, while (like other laws) imperfect, is the best system yet devised for ensuring criminal suspects face justice regardless of European borders.

Unless Britain wishes to be wholly unable to secure the return of British fugitives from abroad and to extradite foreign suspects from our shores, some form of international cooperation is necessary whether under the EAW or the European Convention on Extradition that preceded it. And if you’re going to cooperate with other countries in this field, you might as well adopt the best, simplest and quickest system, rather than revert to the less satisfactory, slower yet equally “European” arrangements that went before.

Fortunately, Labour MPs’ votes are likely to ensure Britain sensibly stays within the system in spite of a significant Tory backbench rebellion. What can these Conservatives be thinking? Aren’t they the same Eurosceptics who hate the way Abu Qatada delayed his departure to face trial in Jordan? Who think foreign criminals should be removed from the UK as speedily as possible? And who detest the idea that EU migrants have rights to stay here regardless of their alleged conduct?

Why on earth do they of all people want, by withdrawing from the EAW, to give EU suspects more legal rights than they already have, and new opportunities to appeal and delay being sent abroad to face justice? It’s beyond me.

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Human Rights Act 3The Conservative party’s plan for a British Bill of Rights is “rubbish”, the leading public law and human rights barrister Dinah Rose QC said last night. She was answering questions after her lecture, entitled “What’s the Point of the Human Rights Act?” at an event in central London organised by the conservative think-tank, Politeia.

In response to Joshua Rozenberg, the Blackstone Chambers silk said

What’s so tragic about the Conservative policy paper is – it’s just so rubbish.

The paper shows, she said,

no sensitivity to or awareness of the difference between public international law and domestic law

and she went on to call the paper

so damn stupid.

Dinah Rose began her lecture with the famous 18th century case of James Somerset.

Somerset’s Case is one of the earliest articulations of what is now known as the principle of legality: the notion that fundamental rights have an inherent force at common law. Such rights cannot be interfered with except by clear, positive law, authorising the interference.

The concept of fundamental common law rights, she said, is spelt out in Blackstone’s Commentaries, and in the eighteenth century British enforcement of rights was a source of pride:

The Sublime Society of Beefsteaks, with its slogan “Beef and liberty” pretty much summed it up: liberty, and fundamental rights, were British values: as British as roast beef itself.

Yet in recent times

the Human Rights Act (though in substance a relative success) has been in public relations terms pretty much of a disaster for our civil liberties. Rights … are now popularly regarded as a foreign imposition, beneficial only to foreigners and criminals.

Given our own tradition of common law fundamental rights, Rose asked,

do we need the Human Right Act and the Convention at all? And if so, why?

I would suggest there are two main reasons in principle why we might need the Convention and the Human Rights Act. The first is because there might be some gap in the scope of the substantive rights protected under our own common law, which could only be filled by reference to the Convention.  The second is that the Convention and the Human Rights Act offer a constitutional framework for the enforcement of rights which would otherwise be lacking in order to ensure their effective protection.

While the common law has done much to protect freedom of expression, liberty, open justice and access to courts, Rose said, that’s not the case with the article 8 Convention right to respect for private life.

I wonder whether one of the reasons why article 8 has been so difficult for the press and the public in Britain to accept is that it never was recognised as a common law right, and unlike virtually all the other rights in the Convention, it actually is, in some sense, an alien imposition. Of course the situation isn’t helped by the fact that article 8 has also been the subject of some of the most creative law making on the part of the Strasbourg court.

How, she wondered, might courts protect human rights if there were no Human Rights Act? It’s possible, she said, that the common law might develop further to fill the gap:

If Parliament were to legislate to abolish all judicial review entirely (which is obviously quite a temptation for the current Secretary of State for Justice) … the courts might either interpret the legislation so strictly as to deprive it of any meaningful effect or even, much more radically, it’s possible that they might conclude that Parliament had no power to enact legislation to abolish the courts.

But such hypothetical cases are extreme. In the more usual case where Parliament has legislated in a manner which appears to restrict a fundamental right, the courts will apply the principle of legality: the very same principle that was applied by Lord Mansfield in Somerset’s Case.

She said the classic modern articulation of this principle of legality is that of Lord Hoffmann in R v Home Secretary ex parte Simms in 2000, and that there’s potential for the principle of legality to develop,

particularly in circumstances in which there is no other effective mechanism for protecting fundamental rights; and especially if Parliament were to enact legislation that blatantly violated a fundamental right (for example, authorising the deportation of an individual to a country where they faced a real risk of torture).

There is, she said, a delicate balance between the powers and functions of the government, Parliament and the courts, which the courts must respect. But

in order for our uncodified constitution to work effectively, it is equally necessary that Parliament and the executive also appreciate and seek to maintain that delicate balance. They must also give proper respect to the role and functions of the courts, and to the rule of law.

Rose criticised ministers’ recent “unfortunate practice” of spinning unwelcome court rulings and attacking judges, specifically mentioning David Cameron’s remark that the idea of giving prisoners the vote makes him “physically sick”.

This sort of reaction matters. It corrodes respect for the courts and the legal process amongst the public, if the government abuses or attacks the judges. This sort of reaction by government to adverse judgments, picked up enthusiastically by the press, is one of the major reasons for the collapse of public regard and respect for the Human Rights Act.

Referring to Monday evening’s defeats for the government in the House of Lords on proposed judicial review reforms – the government is attempting to limit judicial discretion in a number of areas, including to deter charities and campaign groups from intervening in judicial review cases by imposing more directive rules on costs – she said

it is unconstitutional in the true sense of the word for Parliament to seek by primary legislation of this type to fetter the discretion of a court when it’s managing the hearing of a challenge to a government decision. Matters such as the payment of costs should be left to the court which is hearing the case. They should not be micromanaged by the state.

At the end of her lecture, Rose turned specifically to the Conservative plans for a British Bill of Rights:

The policy document in which these proposals was published was unsophisticated, and contained a number of obvious legal errors.

Conservatives, she concluded

ought first of all to be in the business of conserving what is valuable in our traditions. Our fundamental rights and freedoms, and the operation of our common law system which protects them, are foremost amongst those values. But if the government does not understand or respect the system, the risks of doing irreparable damage will be unacceptably high.

In questions following the lecture, Rose told the prominent UKIP supporter Stuart Wheeler (who asked about the European Arrest Warrant) that yes – the EAW system is compatible with the Human Rights Act. He seemed initially to find that answer hard to believe: “Yes, it’s inconsistent?” he asked. But she assured him that in the Julian Assange case

Lord knows, if there had been a human rights point we would have taken it.

In answer to a later question, she agreed that abandoning the Human Rights Act and falling back on common law might end up, ironically, creating even greater problems for Conservatives than they face now.

There is a risk of the law of unintended consequences … Judges abhor a vacuum. If you take their toys away, they’ll make up new toys.

Dinah Rose’s lecture was important not just because of her criticism of Conservative and government policy, but in particular because of her discussion of the “principle of legality” and its future potential as an alternative means of rights protection in a post-Human Rights Act world.

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David Davis: Cameron in opposition “really wanted to leave the Convention”

October 29, 2014

David Cameron “really wanted to leave” the European Convention on Human Rights when he was leader of the opposition, David Davis MP said last night at a meeting organised by the conservative think-tank, Politeia. He was speaking briefly in response to a lecture given by Dinah Rose QC entitled “What’s the Point of the Human Rights Act?”. […]

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Martin Howe QC: Tories will pull out of the ECHR unless Strasbourg okays our plan

October 9, 2014

A Conservative government will withdraw from the European Convention on Human Rights after the 2015 election, Martin Howe QC made clear yesterday evening, unless European countries agree their “British Bill of Rights” fulfils the UK’s international obligations. The QC most closely associated with the Tory promise to repeal the Human Rights Act spelled the position out during a panel discussion at Gray’s Inn organised […]

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Full of sound and fury on human rights

October 3, 2014

The Conservative plan for a “British Bill of Rights and Responsibilities” is finally being made clear today. Here is the full Tory policy document, with my detailed comments. The tone of the proposals is harsh and uncompromising, and politically calculated to be. Lawyers will be shocked, and yes, some of their clients will be worse off. Tory Eurosceptics and tabloids will […]

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“Protecting Human Rights in the UK”: the Tory human rights plan

October 3, 2014

Here’s the Conservative policy document to be unveiled today. Click on the bottom left of the viewer for full screen mode, if you’d like to see my detailed comments on the text, including quite a few points made in it that I see as misleading. Or if you prefer, here’s a “clean” copy without my […]

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What Cameron said about human rights today – and what he might have said instead

October 1, 2014

Here’s the human rights passage from David Cameron’s speech to the Conservative conference today. He gave no detail, but seemed to signal that the Conservatives will choose what earlier this week I called Option 2 – the relatively moderate choice of amending the Human Rights Act and relabelling it a “British Bill of Rights” without attempting to […]

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On Liberty, by Shami Chakrabarti

October 1, 2014

Liberty’s director is a great communicator, both in front of an audience and in the media; and partly because of that, this book is a little bit disappointing. The jacket calls On Liberty a “frank and personal book” and there are flashes of the personal about it. Chakrabarti talks to some extent about her son and her parents, […]

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