What will happen to human rights after the next election? – Roger Smith

20 March 2013 by Guest Contributor

This post by Roger Smith was originally the text of a speech to the Working Men’s College and is reproduced here with permission and thanks.

Human rights will be a politically live issue at the next election. Leading on the issue will by the Conservative Party, urged on by elements in the media such as the Daily Mail with a commercial interest in resistance to any law on privacy deriving from human rights. So, the Working Men’s College has done well to identify this topic for exploration. This evening is a celebration of the college’s stated aim to ‘engage positively with the past, while finding new ways to pursue its founders’ aims into the 21st century.’

The pace on human rights is being forced by Theresa May, seen by some as the Tory leader in waiting. She made it clear at the weekend that both the HRA and the European Convention which it introduces into domestic law are under fire:

We need to stop human rights legislation interfering with our ability to fight crime and control immigration. That’s why, as our last manifesto promised, the next Conservative government will scrap the Human Rights Act, and it’s why we should also consider very carefully our relationship with the European Court of Human Rights and the Convention it enforces …  by 2015 we’ll need a plan for dealing with the European Court of Human Rights. And yes, I want to be clear that all options – including leaving the Convention altogether – should be on the table.

This should worry all defenders of human rights in whatever party (and there remain some like Ken Clarke and Dominic Grieve in her own).  Mrs May is deliberately raising the political ante on human rights. She is attacking both the HRA and on the edge of attacking the ECHR.

The Liberal Democrats will hold firm to the current structure of human rights protection. They have, to their credit consistently advanced the idea of incorporation of the European Convention since well before any other party.

Labour’s position is not quite so predictable. Jack Straw, who took the Human Rights Act through Parliament as Home Secretary, recently joined with David Davis to lead Parliamentary opposition to a decision of the European Court of Human Rights in relation to votes for prisoners. They jointly wrote an article for the Daily Telegraph headlined: ‘We must defy Strasbourg on prisoners votes’. It went on to identify its target not so much as the European Convention or the Human Rights Act but the court set up by the Convention whose decisions signatories to the Council agree to implement:

We do not dispute the right of the Strasbourg Court to curb government excesses within the constraints of the Treaty and Convention Britain signed. However, in attempting to overrule British law on prisoner voting rights, Strasbourg judges have exceeded the limits of their proper authority. If the Court does not reflect the views of member states of the Council of Europe, there will be conflict. Where the court infringes our constitutional rights, we will not back down.

So, human rights faces a pincer attack. The immediate cause of Mrs May’s intervention was an interpretation of the European Convention by the Upper Tribunal in a case involving a Mrs Izuazu. Jack Straw and David Davis don’t like its implementation by the European Court of Human Rights in a case involving a Mr Hirst.

Mrs May’s direct criticism of the Human Rights Act is easiest to deal with. Mrs Izuazu was a Nigerian convicted of travelling on false papers and presenting a false national insurance number. She challenged a decision to deport her back to Nigeria on the basis that she had a steady relationship with a man here and deportation would involve a disproportionate interference with her right to a family life (contrary to Article 8 of the Convention). Irritated by the Tribunal Judge’s decision to side with Mrs Izauzu, the Home Secretary’s article was – perhaps a little too petulantly – entitled “‘It’s my job to deport foreigners who commit serious crime – and I’ll fight any judge who stands in my way,’.

Actually, the Home Secretary’s job can be put with somewhat more precision. It’s her role to follow UK law in relation to the deportation of foreigners. Her frustration comes from the fact that she amended the Immigration Rules to fit the result that she wanted but not the supporting legislation. Under the Human Rights Act, the judges are bound by the legislation but not the rules. The latter were passed after a debate by a vote in the House of Commons – not having gone through the full process of Parliamentary scrutiny with votes in both Houses of Parliament and detailed examination. If statute authorised deportation at the Home Secretary’s direction then every UK judge would allow it.

So, why did Mrs May not seek the powers that she coveted in legislation? Probably because she thought she might not get it through the House of Lords. As she will know perfectly well, the doctrine is Parliamentary Sovereignty, not ministerial or House of Commons supremacy. Ministers who want to make decisions of any kind  simply have to get statutory approval and they are home free. Judges remain in their traditional role as lions under the throne. Their only enhanced powers in relation to human rights relates to a power to overrule secondary legislation and to declare that primary legislation is not, in their view, compatible with the European Convention.

The Human Rights Act has played an enormous role in making our society more transparent and our institutions more accountable. I cite just one example – the behaviour of British forces in Iraq. The Act allowed redress against soldiers who mistreated prisoners  such as Baha Mousa who was killed while in detention in Basra. It forced the Army to amend its interrogation procedures back to what the UK government had said since the 1970s that they were – without violence or threat. We now have the A| Sweady inquiry into further events. The Human Rights Act has made all this possible and lifted the veil over one of the previously concealed areas of state activity. This is uncomfortable for ministers – whose reaction is to reach for legislation that will allow greater secrecy – and for our armed forces.

So, we should not fear an attack on the Human Rights Act as such. We can defend it with ease. The more difficult point is that raised by David Davis and Jack Straw. This relates to the European Convention and not the Human Rights Act. Nevertheless, domestic courts interpret the Convention in the shadow of the European Court. Any change in its role affects the domestic balance under the Human Rights Act.

Straw and Davis raise a serious point which cannot be lightly dismissed. They  argue:

in recent years the Court seems to have forgotten that its job is to apply the principles of the Convention as originally intended by those who signed it – nothing more, nothing less …  the Court has defined the Human Rights Convention as a “living instrument” to allow it to expand its influence as the judges see fit. As a result, we now find ourselves in a situation where the Court is trying to impose judgments on Britain which would have astonished those who signed the Convention. And by taking this approach, Strasbourg risks undermining its own authority.

How do we answer this criticism? We should not be simplistic. The European Convention gives the European Court a privileged role. Its word is law: signatories to the Convention agree to implement its decisions. If it went off on frolics of its own, the court would undermine its own authorit.

Davis and Straw refer to the doctrine that the convention is a ‘living instrument’ and can be interpreted as befits the time. But their objection to this as undemocratic is less cogent than may first appear. The alternative would be to take the ‘originalist’ position of some of the conservative members of the US Supreme Court. This leads to arcane debate about what the US constitution meant when it was drafted three centuries ago. This gets absurd.  There really is no sensible alternative to the living instrument approach.

Let’s find the most difficult cases to examine the issues. Two candidates would be the decision in Hirst on prisoner voting and Abu Qatada. On prisoner voting, the court held that a blanket ban in the UK on prisoners voting was a disproportionate infringement of the right to vote. The House of Commons disagrees. We have a constitutional stand off. The court is sticking to its guns; the other states are harrying the UK to implement the decision.

In the abstract, this is not an easy situation and it may well be an example of a court making a decision at the margins of the acceptable. However, it is not, in practice, quite the big deal that Davis and Straw have argued. Clashes like this happen under all constitutions: the US is always bickering about which branch of government has what powers – with goodwill, they can be easily settled. This is actually a really minor issue. The government should put forward legislation which will give the vote to some prisoners – it could be pretty minimal. The issue would go away. You could argue that this is a fudge but if there really was an important democratic issue then, frankly, the court would not have decided as it did. Without all this fuss, every prison governor in the land would have cheered a prisoner sufficiently engaged to want to vote.

In Abu Qatada’s case the European Court agreed that he could safely be returned to Jordan and assurances that he would not be tortured could be relied upon. However, he was likely to tried for offences dating back to the early 1970s on evidence that might well have been obtained by torture. So, the court decided that he would not get a fair trial and should not be deported.

This again is a difficult decision in the abstract. Abu Qatada is not a UK citizen. He was born near Bethlehem in Palestine though he is usually referred to as a Jordanian. Jordan has only recently amended its constitution to make torture unlawful. Abu Qatada is accused of offences dating back to the 1970s. Any evidence from that time is pretty likely to be tainted by torture: it was used as routine. And, indeed, Jordan was one of the CIA’s torturers of choice in the war against terror.

One of the purposes of the European Convention is to make an international statement about values. This includes an absolute abhorrence of torture. In a world where torture is all too prevalent, Europe presents itself as a beacon.  The decision on Abu Qatada is logical. If we are against torture then we are against torture and we need to take a coherent stand against any condoning of it. Previous cases have not gone further than saying you cannot deport someone to a country where there is a reasonable chance that they will be tortured. I accept that this decision is another decision that gets close to the boundary of how far the court can reasonably go. But, I don’t think it crosses it. I think it is right.

There are three conditions which I would agree that the court should accept:

First, it would be prudent to accept a degree of judicial restraint on the part of the court in respecting areas of democratic responsibility. The language of this principle changes over time but the concept remains the same. The courts should go easy on – and that is not to say avoid – overturning decisions for which others are electorally responsible. The concept of restraint is now a bit old fashioned but ideas of ‘relative institutional competence’ amount to the same.

Second, the court should continue to accept the existing doctrine of  ‘margin of appreciation’ ie recognition of a degree of discretion in how a state may implement the Convention.

Finally, the European Court should be willing to conduct dialogues with individual domestic courts about the appropriate way forward – as has begun to happen and can be seen in the decisions of the European Court in relation to UK legislation on hearsay when ultimately – and at the second go – it allowed UK domestic legislation to be reflected in its judgement while retaining its principle of a fair trial.

Once the European Court has come to a decision, whatever it is, governments like our own should do all they can to find ways of living with it. Mrs May raises a doubt about the international influence of the court but it is enormous. Talk to human rights activists in Turkey, Russia and some of the states on Europe’s eastern boundary. The convention is often all they have got in the face of domestic legislation and institutions. We cannot credibly argue for a UK opt out without accepting that others will follow and the Convention will break up. Our politicians are often tempted by too narrow a concept of our national interest. We cannot argue – for reasons of our history and economy – that we are a little state like Belarus for which the outside does not matter.

We are bound into the web of international relations – like it or not – and a UKIP version of a plucky little England making it on its own is just not real – particularly now that we have lost the empire that sustained us through the best part of the last two centuries.  We need the big states of the next century – China, India and Brazil – to integrate human rights within the world views with which they will begin to dominate the world. There is even less chance of this than otherwise if we give up on the idea.

So, we should find, with the college, new ways of grappling with the future that involve protection of our old ideas, acceptance of the global economy that is now inevitable and the universal commitment to human rights – which, frankly, is not.

Professor Roger Smith OBE was the Director of Justice – you can read about his many other achievements here, read his blog here and follow him on Twitter (@rogerjgsmith)

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