Yesterday saw another poor piece of human rights reporting from the Telegraph, again from Home Affairs Correspondent David Barrett. Strasbourg human rights court threatens key counter-terrorism powers. It is a typical piece of hall-of-mirrors reporting; all of the basic elements are there but presented in a distorted and inaccurate way.
The piece is about the case of Sabure Malik, a British investment banker who was stopped by police in 2010 at Heathrow on his way back from an organised package tour to undertake the Hajj. Full details of his case, which is supported by Liberty, are in the Euoprean Court of Human Rights’ admissibility decision here. It was granted permission to proceed in May 2013, well before the David Miranda controversy which took place in August.
I’ll take this shortly.
First, “a legal challenge seeking to strike out the controversial powers“. The court has no power to strike out anything. It will rule on the compatibility or otherwise of the Schedule 7 (of the Terrorism Act 2000) powers of search and detention with the European Convention on Human Rights (ECHR). If it rules the powers are incompatible then the UK Government, which has agreed to “abide by” judgments of the court by signing up to the ECHR, will be under an obligation to change the law in order to make it compatible.
However, because the court has no power to strike down our legislation, the ruling will have no effect on the anti-terrorism powers until the Government decides to implement it. Although this would be bad form, it could also ignore the judgment or procrastinate, as it has been doing for eight years in relation to the prisoner voting case.
Second, this is a partial and inaccurate summary of the recent Joint Committee on Human Rights report on antiterrorism powers:
Earlier this month members of Parliament’s Joint Committee on Human Rights found there was a “clear” case to retain the powers. MPs and peers on the committee said allowing police to stop and search suspects at airports without suspicion were “not inherently incompatible” with human rights laws.
Barrett says the court is examining the powers “even though a thorough inquiry by British MPs and peers has already concluded the powers are compatible with human rights law”. But that is not what the report says. The full report is here and the relevant part here.
Whilst it is correct to say that the committee found “a statutory power to stop, question and search travellers at ports and airports, without reasonable suspicion, is not inherently incompatible” with the ECHR, it also said this:
Whether it is so compatible, however, depends on whether there has been shown to be a very clear need for such a power, and whether the power is sufficiently narrowly defined and subject to sufficiently robust safeguards to ensure that it is confined to the exceptional circumstances in which it is shown to be needed. It follows that the wider the scope of the powers available, and the fewer the legal safeguards, the greater the risk of incompatibility with the right to liberty and the right to respect for private life.
So whilst a stop and search power without reasonable suspicion could in principle be compatible, whether it is compatible depends on how it is formulated and exercised. And the JCHR is unconvinced that the powers as they currently stand are indeed compatible:
We have considered carefully whether the Government has demonstrated the necessity for these more intrusive powers being exercisable without reasonable suspicion, and we are not persuaded that they have… We recommend that the reasonable suspicion threshold be introduced at the point at which the person being examined is formally detained, which the Bill requires to happen after an hour of questioning.
So to say that the JCHR concluded that the stop and search powers are “are compatible with human rights law”" is wrong and a misrepresentation. That is almost the exact opposite of what they found. Indeed, Barrett’s own previous report on the JCHR’s recommendations provides a more nuanced view.
If hall-of-mirrors human rights reporting bothers you, please do complain to the Press Complaints Commission – just click here. It does sometimes make a difference. Indeed, I am reliably informed that some fairly major corrections are incoming in relation to the recent human rights damages debacle, reported by the Mail, Telegraph and others.
For more of this, I am giving evidence with Joshua Rozenberg this Wednesday to the Joint Select Committee on the Draft Voting Eligibility (Prisoners) Bill – you can watch live, all details here.