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 MP – detail from a photo by  English PENDavid 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?”.

He talked about Conservative plans for a “British Bill of Rights”, which he said he’d been at the origin of.

I started this argument

he claimed, in a meeting with David Cameron and Dominic Grieve, who according to Davis

got fired I think the telling the truth once too often.

At the time of the meeting David Cameron, he said

really wanted to leave the Convention.

Cameron had been Michael Howard’s special adviser, Davis reminded the audience, and suggested the 1996 Chahal judgment against the UK had left “scars”.

The meeting Davis referred to must have taken place in 2005 or 2006, when he was shadow Home Secretary. It was in June 2006 that David Cameron gave a major speech spelling out the Bill of Rights proposal.

There are problems with the Convention, Davis told the audience last night, since European judges are deciding cases

on the basis of a treaty that is now 62 years old

and are

doing so under a doctrine that treats the treaty as a “living instrument”.

But Davis’s inspiration in 2005-6 was about much more than cutting down the effect of rights, he said.

 The Bill of Rights, I saw as a building block for British written constitution.

He expressed his admiration for the U.S Constitution, and the

explicit balance

it embodies between politicians and judges. It was impossible to change the European Convention, he said, but his aim was to

somehow codify it under our system.

Davis was critical, too, of the tendency of Labour ministers to speak out against the courts:

I watched time and again as David Blunkett among others criticised perfectly decent judgments.

Davis’s remarks are important, first because of the insight they give us into David Cameron’s long-standing hostility to the ECHR, and secondly because they show how David Davis’s strand of civil libertarian Conservative thought is prepared to entertain thoughts about a written constitution.

Reading David Cameron’s 2006 speech today, it’s striking how it refers to “entrenching” the Bill, giving it “a status similar to that of the German Basic Law” and making it “enduring” – all phrases which give a recognisable nod towards written constitutionalism.

That aspect of David Davis’s thinking was, though, met with frank disagreement on the night from the former Conservative MP Sir Ivan Lawrence QC:

It is nonsensical to suggest one of the solutions is a written constitution,

Sir Ivan said,

 … a written constitution would take us a hundred years … It simply can’t be done.

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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 by barristers at Brick Court Chambers, in front of a distinguished legal audience including the Supreme Court Justice Lord Clarke and current and former Court of Appeal judges Sir John Laws, Sir Patrick Elias and Sir Henry Brooke. Also present were many eminent barristers and solicitors, including leading government lawyers who must remain nameless.

Many thanks to Brick Court Chambers for allowing me to publish their recording of the event.

Howe quibbled with the premise of a question put by Paul Bowen QC, who suggested the UK was likely to remain subject to the human rights Convention.

That is not a fact,

Howe replied.

The policy is that either the Council of Europe accepts the proposals and agrees that they are in conformity with our obligations as members of the Council of Europe, or the United Kingdom will give notice that it will withdraw from the Convention

Asked later in what form he expected such an agreement to be delivered, Howe said

What would happen is we present, effectively, the Council of Ministers with a situation in which it was up to them to choose. If they’re not willing to agree that our arrangements are appropriate, then we would withdraw from the Convention.

His remarks struck a different tone from last week’s Conservative announcement, emphasising more strongly the real possibility of withdrawal.

The problem with the European Court was far more than just “mission creep”, he said.

we have a court at Strasbourg that has … interpretation is the wrong word … has spent 60 years inventing entirely new doctrines, not based on the wording of the Convention – in many respects contrary to its express wording … This is an intolerable situation, I believe, and it has to be resolved in a coherent way.

Both the former Attorney General Dominic Grieve and the government’s independent reviewer of terrorism legislation David Anderson QC disagreed with the policy, as did Bella Sankey, who spoke for the campaign group Liberty.

This is the first time we have said we will withdraw from the convention if the Council of Europe didn’t accept our terms of membership

said Grieve

and the terms of membership are that the judgments in future would only be advisory on the United Kingdom whilst they would remain binding in international law on everybody else – which I think one moment’s scrutiny must incline one to the view is impossible, because it would destroy the convention system in its entirety.

While Grieve himself was critical of the European Court, he stressed

All this in my view is a mistaken approach.

And the former Attorney General gave an insight into the legal advice he must have given to government. It’s ministers’ duty, he said, to observe international treaty obligations as far as they’re able

and that means we should not connive at trying to prevent the implementation of a treaty obligation, although it can mean, if it’s impossible to implement a treaty obligation – because Parliament won’t do it –that’s a different matter. If we don’t like a treaty, we should pull out of it, or we should try to renegotiate it. We should do a number of things; but we should not breach our international legal obligations, because there lies anarchy and chaos in the international order. It’s very simple and straightforward.

David Anderson QC was sharply critical of the Tory policy paper (which, the chairman Shaun Ley suggested, he’d brought for Martin Howe to autograph), in particular what it said about the recent Strasbourg “whole life orders” ruling – which he complained was “not true”:

If this document really was passed by “QC level lawyers” as I read in a press release, then they should be ashamed of themselves

he said, to applause. In contrast, Martin Howe’s claim that the policy document accurately characterised the Vinter ruling was met with groans of disbelief and disapproval from the audience of lawyers.

For Liberty, Bella Sankey was pessimistic about the UK’s future, under Tory policy:

It’s not clear that we would remain part of the Convention … if you take the paper at its word and then you, obviously, look at the response that we’ve already had from the Council of Europe, it would immediately bring about our exit … which would probably bring about our withdrawal from the Council of Europe, and perhaps even the EU while we’re at it.

The paper was “legal nonsense”, she said. And it would be counterproductive:

If we diminish rights that are protected in domestic law, it will only lead to more supervision from Strasbourg – the very thing that the Conservatives say they don’t want to happen … Being the first country to “deincorporate” the Convention is going to necessarily lead the court to take a stronger look at the cases that will be brought there. It will become once again a court of first instance; and the very sovereignty that the Conservatives say they want to return to the courts and to Parliament will be hugely lost.

Dominic Grieve pointed out the risk that EU law might fill any gap created by withdrawal from the ECHR:

I spent quite a lot of my time as Attorney General worrying about the expansion of the European Court of Justice’s jurisdiction, and this is a big issue – I dare say in terms of national sovereignty I think rather a bigger issue than anything which comes out of Strasbourg.

The ECJ had become more involved in justice and home affairs issue, he said, and

if in fact we have a situation where we are not observing Convention laws I think the risk to us is, it’s a green light to the ECJ in Luxembourg (if we’re still members of the EU) to start to expand their areas of competence into this sphere, which I don’t think is desirable. In fact I think it’s extremely undesirable.

Of course, he said

some people may welcome it. If people wish to have a mighty clash with the EU resulting in our departure, then this may be a mechanism which is precisely the casus belli that they wish to bring forward.

The retired Lord Chief Justice Lord Judge was careful to avoid expressing political views, and to distance himself from last week’s announcement. The timing of his recent article in Counsel magazine had, he said

nothing whatever to do with me.

Lord Judge was, though, critical of the Human Rights Act, in particular the way in which it requires British judges to take into account Strasbourg rulings:

The issue of what is binding on us, and how anything binding is to be implemented has been fudged, fudged from the very start of the Human Rights Act …

he said; and

… this to me is a very strange constitutional arrangement.

He contrasted the human rights position with that under EU law:

At least in the in the context of the European Court of Justice, there is no fudge. Our law’s entirely clear: our courts are bound by the European Communities Act 1972, and the European Court of Justice can tell us what to do.

Later, in response to a question from Lord Lester QC he asked

Why don’t we have an Act of Parliament that says, as with the European Court of Justice, the decisions of the European Court of Human Rights in Strasbourg will be binding? If we have that, then there’s your answer; but we don’t. We have a muddled piece of legislation.

Bella Sankey disagreed, stressing the deliberate principle embodied in the Human Rights Act specifically protecting Parliament from imposition by the European Court of Human Rights.

The final strand of the discussion was a disagreement between Lord Judge and most of the rest of the panel about how far the common law could, if the UK withdrew from the Convention, provide an equivalent level of protection for human rights. For public lawyers this was the most meaty legal discussion of the evening.

Perhaps the common law could fill the gap, or could fill some of it

said David Anderson,

but there would certainly be a difference.

The common law is a flexible beast, he said

and we’ve seen examples of this in very recent years … I sometimes wonder if there’s a sort of judicial “Plan B” developing, in case we do withdraw from the Convention.

In those words I think David Anderson encapsulated the thoughts of many public lawyers over the last year or so, especially since the judgment he mentioned in particular – Lord Reed’s, in the Supreme Court in Osborne v Parole Board.

He thought there were difficulties with that approach, though: falling back on common law alone would make it more difficult to project British legal values in an international language:

The European Convention is a vehicle for our values – you can call them British values if you want to … it’s in a way the last imperial vehicle … I don’t think citing dicta from 1748 cases is going to be such a persuasive way of achieving that.

Bella Sankey said that in the 1990s

it was becoming increasingly difficult for the common law to withstand the ever encroaching expanse of government action … that’s why the enactment of the Human Rights Act was so timely … in the land of Magna Carta and habeas corpus it took the Convention, in 2004, to put an end to the indefinite detention of foreign nationals under counter-terrorism legislation that was passed after 9/11.

Dominic Grieve agreed:

My constituents write to me about the common law constantly … extolling its virtues in a completely abstract fashion. But of course, as we know, the reason why we had Magna Carta or for that matter why we had habeas corpus and the Bill of Rights was that the common law was not sufficient … adding and using statute to remedy deficiencies in the common law is very sensible – and the Human Rights Act is such a statute.

Lord Judge was much more sanguine about the capacity of the common law to fill the gap after any withdrawal.

I see absolutely no reason why the common law cannot provide all the protections that we need … if you look at the common law books for 1951-2, that’s the Convention.

But he fought back against the accusation that his view was outmoded:

The common law is currently very much alive and very much on the go

he said. And

I don’t see how you can work on the basis that those of us who adhere to the view that I’ve expressed in relation to the common law  are somehow stuck like dinosaurs in 1950. The common law will develop if – and I’m not advocating this, and please nobody misquote me – but if for any reason we pulled out of the Convention, judges in England and – sorry, the United Kingdom – would be looking at Europe to see what decisions they were reaching, and this would influence their judgments, just like the decisions of some other countries do. Judges here don’t remain isolated in their own little embryonic shells. They look around the world for guidance and assistance.

In response to Lord Lester’s question, he insisted

The world has come on, the common law is developing and has developed and … the idea that … if we left the Convention we would revert to 1950s standards is, with great respect, absurd. We would have a huge body of law available for our judges to interpret, and move forward.

The question left open was whether Lord Judge’s approach would mean more and bolder judicial activism than we currently have from Strasbourg.

This was a serious evening of legal and political discussion by and in front of lawyers of the highest rank.

                                               Thanks again to Brick Court Chambers for permission to use their recording of the event

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Chris GraylingThe 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 be jubilant, and potential UKIP voters impressed.

But the noise and drama of the policy isn’t backed up by its substance. If the acid test is whether the plan would prevent another Abu Qatada or prison votes row – then it fails.

Overview

The broad description of the policy is that it would

Repeal Labour’s Human Rights Act

and

Put the text of the original Human Rights Convention into primary legislation.

Taken with the rest of the proposals, it’s clear the Conservatives have plumped for what I called Option 2 in my piece earlier this week: a cosmetic rebranding and fairly substantial amendment of the Human Rights Act. But nothing in this policy paper would affect the UK’s position in international law: it does not involve withdrawal from the European Convention on Human Rights, or leaving the jurisdiction of the European Court.

The key changes intended are as follows:

  • UK judges would no longer have to take European Court of Human Rights judgments into account in our courts;
  • some European Court judgments would be treated as just advisory, rather than as binding on the UK – a special Parliamentary procedure would be set up to consider whether to comply with them;
  • UK judges would lose the ability to “reinterpret” Acts of Parliament so they comply with human rights;
  • the Bill would only apply on UK territory, so no human rights challenges could be brought in our courts to the conduct of British forces abroad;
  • Ministers would no longer be required to comply with international law or the UK’s treaty obligations;
  • human rights would only apply in “serious” cases, not in “trivial” ones, and
  • it’d be made easier to remove people from the UK by changing legal tests about the risk of torture, inhuman and degrading treatment, and by ending the ability of some criminals to argue that they have family ties here.

Here’s my analysis of those proposals, taken from the document.

The UK effect of Strasbourg cases

One of the key changes in the new British Bill of Rights would be to

Break the formal link between British courts and the European Court of Human Rights. In future Britain’s courts will no longer be required to take into account rulings from the Court in Strasbourg.

This would be a change from the current situation under the Human Rights Act, under which judges must “take into account” Strasbourg rulings. But it’s not quite as radical a change as it seems initially. Under this proposal, judges would not be prevented from taking account of a Strasbourg judgments, or from following it – whether they agreed with it or not. So this is not as radical as the change I suggested in my post earlier this week, which was

to make clear that a UK court should only determine a human rights issue in accordance with a Strasbourg ruling if it agrees with that ruling.

“Parliamentary override”

The document tells us the Bill of Rights and Responsibilities would

End the ability of the European Court of Human Rights to force the UK to change the law. Every judgement that UK law is incompatible with the Convention will be treated as advisory and we will introduce a new Parliamentary procedure to formally consider the judgement. It will only be binding in UK law if Parliament agrees that it should be enacted as such.

Again, this sounds very radical, and its language is certainly a slap in the face for the European Court and the rule of law. But its actual effect wouldn’t be as great as the Tories may claim. As things stand, no European Court judgment can result in a change to UK legislation without Parliament’s consent. That’s why prisoners still don’t have the vote. All this would do is trumpet (perhaps by declaratory words) what is already the case.

In fact in some ways this proposal puts more human rights obligations on Parliament than it has under the Human Rights Act. There is currently no legal duty on Parliament to consider any Strasbourg judgment. The Conservatives plan would oblige it to for the very first time.

And notice that it’s only some judgments that will be treated as advisory – those implying that UK law is incompatible with the Convention. Not all judgments against the UK do that, so presumably the others (like Abu Qatada’s case, which was about an individual decision, not the law as a whole) will still be treated as binding.

Most interesting is the question whether Strasbourg decisions granting “interim measures” against the UK under article 39 of the ECHR will continue to be treated as binding. These are like injunctions; in a case like Abu Qatada’s, say, they’re effectively an interim order preventing deportation pending judgment in the very worst cases, where irreparable harm might result to someone if the government simply does what it wants immediately. If these ruling are treated as merely advisory, that would plainly breach the Convention; if they continue to be accepted as binding (which I presume they will, since Parliament surely can’t be expected to debate individual cases like this) then the new rule would do nothing to speed up the removal of someone like Abu Qatada.

Judicial interpretation

I’m surprised by this: I said in my piece on Monday that I doubted the Tories would want to touch the Human Rights Act interpretation rules. But the Bill would

Prevent our laws from being effectively re-written through ‘interpretation’. In future, the UK courts will interpret legislation based upon its normal meaning and the clear intention of Parliament, rather than having to stretch its meaning to comply with Strasbourg case-law.

It’s perfectly true that this would stop UK judges from amending legislation “by the back door” through interpretation, to make it comply with human rights. That is something that seems instinctively attractive to people who dislike the Human Rights Act and want to limit judicial activism.

But it could well have unfortunate unintended consequences for future Conservative ministers. In many cases it’s clear to British judges that someone’s rights have been breached. The next question is whether that’s because the law’s merely been badly applied, and should not be applied in that particular way; or whether the law breaches human rights in principle. If you conclude the law’s only been badly applied, that problem can be solved by “reading it down”: in future, that law must not be applied in that specific way.

To use the leading case on Human Rights Act interpretation as an example, if judges think old housing legislation discriminates against a gay tenant, they can (and if possible must) rule that it is no longer to be read as permitting the discrimination. But if that option is barred to them, they will in case like that have no option but to declare the legislation incompatible with human rights in principle. Nothing in the Tory policy papers suggests they will remove the power to make such declarations. The result, surely, will be more headlines about judges condemning Parliament for breaching human rights, not fewer – and it will be British, not foreign, judges who do the condemning. I don’t think this has been thought through.

Serious cases only

Another surprise is that the Bill of Rights and Responsibilities would

Limit the use of human rights laws to the most serious cases. The use of the new law will be limited to cases that involve criminal law and the liberty of an individual, the right to property and similar serious matters. There will be a threshold below which Convention rights will not be engaged, ensuring UK courts strike out trivial cases.

The obvious question here is what’s a “serious” case and what’s a “trivial” one. The line will be hard to draw. In criminal cases you might think it could depend the maximum sentence, except that sometimes important human rights issues are raised by alleged offending that’s not very serious in the scheme of things. The Twitter joke trial would be a good example. In civil cases, you might think monetary limit could work, except that some of the most important cases aren’t about money at all, like cases involving children. And is something like this serious, or trivial? I look forward to the detailed policy on this with interest.

Limitation to UK territory

Conservatives have been infuriated by the way the courts – both here and in Strasbourg – have ruled that Convention rights apply outside the UK, where British forces have control, for instance. So the Bill would

Limit the reach of human rights cases to the UK, so that British Armed forces overseas are not subject to persistent human rights claims that undermine their ability to do their job and keep us safe.

It’s true this would make it impossible directly on human rights grounds to challenge in a British court the conduct of British forces abroad. What it doesn’t do is prevent those cases being taken to the European court – the ECHR would continue to bind the UK abroad – or change the binding effect of those rulings on the UK.

Change to the Ministerial Code

One of the most striking changes proposed, and one that will I think be very controversial indeed, even among a package of controversial ideas, is that

We will amend the Ministerial Code to remove any ambiguity in the current rules about the duty of Ministers to follow the will of Parliament in the UK.

This would not require legislation: in fact a Conservative government could amend the Ministerial Code without consulting Parliament. But the idea that ministers should be free from what the Code calls an “overarching duty on Ministers to comply with the law including international law and treaty obligations” is very serious indeed. Is the intention really to free ministers to order military action, in say Iraq or Syria, regardless of the international law position?

Changing the “real risk” test in torture cases

The papers talks of balancing rights and responsibilities – qualifying rights, in other words, for the “undeserving” – but the only practical examples it gives of what’s intended all involve removing foreign nationals from the UK. We’re told the Bill would bring in

a clearer test in how some of the inalienable rights apply to cases of deportation and other removal of persons from the United Kingdom. The ECtHR has ruled that if there is any ‘real risk’ (by no means even a likelihood) of a person being treated in a way contrary to these rights in the destination country, there is a bar on them being sent there, giving them in substance an absolute right to stay in the UK. Our new Bill will clarify what the test should be …

This is a response to the famous Chahal case which prevents the removal even of suspected terrorists if there’s a real risk they’ll be tortured where they’re sent. The judgment has been an irritant to every government since it was given, and is part of the line of cases on which Abu Qatada relied. There are two problems with this change.

First, by raising the bar for people who fear torture abroad, it would lead to breaches of the Convention at the moment the people in question were deported, if they were. Second, a new rule (say a “balance of probabilities” rule) would be difficult for judges to apply. It’s not that difficult to decide whether an alleged fact in the past probably did or did not happen. Judges are used to doing that, on the basis of direct evidence of what happened. It’s much harder to predict how likely a future event is. There’s a reason why the courts have settled on a “real risk of torture” approach, and I wonder how the Conservatives would expect judges to apply a different one.

And of course in a “real risk of torture” case a future Abu Qatada would still be able to get interim measures against the UK delaying his removal. I don’t think anything at all in these proposals would have changed what happened to him.

Loss of rights for some foreign criminals

The Tories say their Bill of Rights and and Responsibilities would

clarify … limitations on individual rights in certain circumstances. So for example a foreign national who takes the life of another person will not be able to use a defence based on Article 8 to prevent the state deporting them after they have served their sentence.

Killers, then, would lose their right to stay in the UK because of family ties. But what about rapists, those guilty of GBH, serial sex offenders, robbers?

Redefining “degrading treatment”

Some terms used in the Convention rights would benefit from a more precise definition, such as ‘degrading treatment or punishment’, which has arguably been given an excessively broad meaning by the ECtHR in some rulings. For example in one case, the simple fact that an individual would have to live in a particular city in Somalia was deemed put him at real risk of degrading treatment.

The case referred to here is I think Sufi & Elmi v UK. The idea of redefining “degrading treatment” does remind you chillingly of attempts to limit the meaning of torture; and I’m not sure the definitions will be easy to draw. Perhaps the Conservatives are relying on the idea that once removed, these people will not take case to Strasbourg (and win there). But there’d be nothing to stop at least some of them applying for interim measures against the UK to delay their removal before it takes place.

Human rights and the Union

One exceptionally tricky aspect of repealing the Human Rights Act is the devolution angle: doing this would make life easier for Westminster and for English councils – but not for the Scottish Parliament, for instance, which would remain bound by the ECHR under the Scotland Act 1998. So when the Conservatives say

We will work with the devolved administrations and legislatures as necessary to make sure there is an effective new settlement across the UK

what they mean is that these proposals potentially unravel another thread in the Union. If these proposals go forward, I imagine the Scottish government will seek the devolution of human rights policy so that it can stay loyal to the ECHR if it wants to – but on its own terms, not terms imposed on its by a UK government which itself rejects those terms.

Threat to withdraw from the ECHR

The threat that I called Option 4 remains. The Conservatives say that

During the passage of the British Bill of Rights and Responsibilities, we will engage with the Council of Europe, and seek recognition that our approach is a legitimate way of applying the Convention … In the event that we are unable to reach that agreement, the UK would be left with no alternative but to withdraw from the European Convention on Human Rights

I’m not sure this sabre-rattling is quite as tough as the Conservatives will present it – what the UK does in its internal law is no real concern of any non-British representative at Strasbourg, and they won’t be able to “block” this Bill. I don’t think there’s any chance a Tory government would have to withdraw from the Convention during the passage of the Bill.

But that doesn’t mean anyone in Strasbourg will agree that the UK is released from its obligations, or that those obligations have been watered down at all. They won’t have been. Strasbourg would continue making judgments in the same way, and they will bind the UK as they do now.

Full of sound and fury …

This plan would involve a substantial amendment to the Human Rights Act. They sound tough and in some ways worrying, and undoubtedly the language in which the policy is cast makes it sound a direct challenge to the European Court of Human Rights, and to the rule of law.

But I think that masks the truth that many of these changes are sounding brass. In particular, freeing judges not to take account of Strasbourg is softer than the amendment I suggested: it won’t stop them doing so. And treating some judgments as advisory doesn’t actually involve any real change to the current position under the Human Rights Act.

Some immigration cases in our own courts would be affected, yes, as would claims against the forces abroad. But nothing in these proposals would have made a difference in Abu Qatada’s case or over prisoners’ votes – which perhaps isn’t surprising since they don’t pretend to affect the UK’s international law relationship with Strasbourg.

I wouldn’t say the plan signifies nothing; but it’s not as significant at it sounds.

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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

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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

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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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What might the Tory human rights plan be?

September 29, 2014

#97434491 / gettyimages.com Although Tory hostility to human rights law is obvious, there’s been vagueness till now about what actual policy a Conservative government would pursue. For a long time the plan was to draft a “British Bill of Rights” the content of which was unclear – and the idea hasn’t gone away. There’s been talk […]

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Britain can lawfully attack “the Islamic State” in both Iraq and Syria

September 26, 2014

For once, there’s no legal controversy about American and potential British military action in Iraq. I don’t think anyone’s claiming it’d be unlawful for the RAF to carry out air strikes on “Islamic State” targets in Nineveh province, or near the borders of Iraqi Kurdistan. Not even the Stop the War Coalition raises international law […]

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Chelsea Manning’s “cruel and unusual punishment” legal argument

September 25, 2014

Private Chelsea Manning, currently serving 35 years in a US military prison for offences relating to the disclosure of classified documents to Wikileaks, is now taking legal action against the US Department of Defense and others to compel them, by means of an injunction, to allow her treatment for gender dysphoria, including hormone treatment. The Guardian has published […]

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