Election Round-Up: Ripping Up the Rulebook on Human Rights?
9 June 2017
It has been widely reported that Theresa May will stay on as Prime Minister following the election on June 8th. The Conservative PM will seek to form a government with the support of the Democratic Unionist Party (the DUP).
A recent Round-Up by Poppy Rimington-Pounder highlighted some welcome changes in the parties’ approaches to human rights in the pre-election manifestos. With the recent shift in political climate it seems that changes may be on the horizon.
What does the election result mean for human rights?
Changes under the Tories?
Theresa May has been scant on detail up to now, but has indicated some specific changes to be considered.
In light of the terrorist attacks in recent weeks, Theresa May has signalled changes to anti-terror legislation and human rights. The Prime Minister explained “I mean longer prison sentences for people convicted of terrorist offences. I mean making it easier for the authorities to deport foreign terror suspects to their own countries.”
So far, so familiar. But what could Mrs May mean specifically? The Guardian explains that the statement suggests a strengthening of terrorism prevention and investigation measures (“TPIMS”). TPIMs’ predecessors include Labour-introduced ‘control orders’, which introduced by the Prevention of Terrorism Act 2005. Control orders were used to resitrict and monitor those suspected of terrorism. They were struck down as unlawful in a number of judgments, as explained on this blog here.
The successor to control orders, TPIMs, have had a smoother journey through the courts. Adam Wagner, barrister at One Crown Office Row and founder of this blog, has explained that in 2013 David Anderson QC, then Independent Reviewer of terrorism legislation, stated in his first report into TPIMs that the measures were “broadly acceptable.”
Theresa May also indicated that she would investigate whether it is now appropriate to detain terror suspects without trial for up to 28 days. The current maximum is 14 days. The 28-day limit was an invention of Blair’s Labour government. The legislation lapsed, and the limit returned to 14 days in 2011, when Theresa May was Home Secretary.
One wonders whether the focus on such measures, whose efficacy in preventing terrorism may be debated, is intended to deflect attention from the policing cuts for which the Tories have been criticised. It has been suggested that better resourced and therefore more effective community policing, in particular, would lead to earlier intervention in preventing terror attacks.
Coalition with the DUP
Given the liklelihood of a prominent role in policy over the coming years, it is a good time to pause on the DUP’s stance on human rights in recent years.
On terrorism legislation, the DUP’s manifesto proposes an “updated legal framework for intelligence led anti-terrorism investigations and operaitons in the U.K.” While the substance is as yet unclear, this might sit comfortably along May’s proposals for a terrorism shake-up in light of the recent attacks.
More generally, the manifesto is silent on human rights. However, the party has been critical of the effect of human rights on combatting terrorism.
Speaking in 2015, DUP MP Jeffrey Donaldson shared concerns that the Human Rights Act “has been abused by criminals and terrorists and it has failed to protect the rights of innocent victims adequately.” The party is in favour of a “British Bill of Rights” to replace the Human Rights Act.
Broadly speaking, the DUP’s stance has clashed with Westminster over human rights issues. The party has long been a vocal critic of the extension of the Abortion Act 1967 to Northern Ireland. Arlene Foster, the party leader, explained last year that she does “not want abortion to be as freely available here as it is in England…” Abortion in Northern Ireland will be the subject of a Supreme Court judgment next Wednesday, 14th June. Watch this space.
Derogation from the ECHR?
The Conservative Party’s manifesto has promised that the part will not repeal or replace the Human Rights Act while the government is negotiating Brexit. It also promises that the country will remain signatories to the European Convention on Human Rights during the next parliament. How, then, can human rights law be avoided in the fight against terrorism?
It remains a possibility that the future government will attempt to derogate from some of the provisions of the European Convention on Human Rights. This is process by which the government uses Article 15 of the Convention to withdraw from its obligation to secure certain human rights. This is only possible during wartime, or is times of public emergency. This briefing by human rights NGO Liberty explains the process.
In 2001, in the wake of the September 11th attacks on the World Trade Centre, the Labour government invoked its right to derogate, and extended its powers of detention through the Anti-terrorism, Crime and Security Act 2001.
The right time for change?
The past week has seen a flurry of articles by lawyers on the human rights implications of changes to human rights anti-terrorism law.
Cathryn Evans has drawn attention to human rights issues surrounding detention for Rights Info. The article cites a number of perceived weaknesses in the extension of detention without charge, and provides a summary of a number of court cases which have found the measures to be unlawful. Cathryn Evans also describes certain technical difficulties surrounding internment, arguing that a number of historical examples highlight that introduction of similar measures during the Troubles and during the Gulf war were proved to be counter-productive.
Sir Keir Starmer QC, shadow Secretary of State of Exiting the European Union and former Director of Public Prosecutions, has written for the Guardian explaining his concerns over May’s proposed changes. He argues that the Prime Minister’s comments are “a dangerous distraction, designed to deflect attention from the serious questions that have been asked about the cuts she has made to police numbers…and resources in her seven years as home secretary and prime minister.” We can expect significant Labour opposition if reforms are proposed.
David Allen Green has written for the Financial Times on the issue. The article reminds us that almost every right in the European Convention on Human Rights is ‘qualified’. This means that the state is entitled to interfere with the right under certain circumstances. In this sense, argues Green, the provisions of the European Convention on Human Rights cannot be seen as a bulwark against government policy on tackling extremism: “the qualified nature of most of the rights means that it takes nothing more than a sensible approach and boilerplate language about something being “necessary and proportionate” for the UK state to comply with the Act and still get its way.”
An uncertain future
Is now a good time to take stock of human rights law in the UK? On one view, the attacks in London over the weekend should bring the effect of human rights legislation sharply into focus. On another, the wake of a series of politicised murders is precisely the time to resist knee-jerk changes to our legal system. Law should not wield to panic. Its central virtue is that it is dispassionate, predictable, and guards us against our lesser instincts in times of crisis.
Time will tell.
Elsewhere in the news
Legal Futures reports that the Law Society has published its first statement on slavery and human trafficking. The group, which is the professional and representational body for solicitors in England and Wales, has issued the statement up to 31st October 2016
The group, which includes the Solicitors Regulation Authority, said that it had reviewed its templates of standard terms and conditions for the procurement of goods and services. These require suppliers to comply with the Modern Slavery Act 2015. The Society’s interim Chief Executive, Paul Tennant, said that a number of other amendments have been made, to “inform, on a case-by-case basis, the group’s decision whether to engage further with potential suppliers of goods and services.”
The Guardian reports that anti-Muslim hate crimes have increased five-fold since the attacks on London bridge last weekend. The number of reported incidents of hate crime has risen to 54 a day, while the figures also show a 40% increase in racist incidents compared with the daily average for the rest of this year. Police sources told the Guardian that recorded crime where an anti-Muslim motive was identified has reached 20 per day, while the year’s daily average was under four.
Elsewhere on the UKHRB
Munira Ali has written an article examining the dissolution of the Joint Committee on Human Rights’ inquiry into mental health and deaths in custody. The article explains that the decision to call a general election cut short the inquiry.
Rosalind English explains a recent Court of Appeal judgment, and upcoming application to the Supreme Court, concerning the parents of a seriously ill boy who wish to take their child to the USA for experimental treatment. David Hart has also earlier today posted on the Supreme Court’s application to refuse permission to appeal.
by Thomas Beamont