Category Archives: Human rights

A Damp Squib in the Long Grass: The Report of the Commission on a Bill of Rights

Long grass: which is where the report of the Bill of Rights Commission is likely to end up
Long grass: which is where the report of the Bill of Rights Commission is likely to end up

In December 2012, the Report of the Commission on a Bill of Rights was published. The Commission was established by the Coalition Government to consider how human rights should be protected in UK law – and, in particular, whether the Human Rights Act 1998 should be repealed and replaced with a new UK Bill of Rights. The Report was somewhat underwhelming – not least because the Commission was so divided. As a result, very little by way of real consensus as to the way forward emerged from the Report.

Shortly after the publication of the Report, I posted a piece entitled “Ten things you wanted to know about the Bill of Rights Commission’s report but were afraid to ask”. I have now finished writing a longer article, entitled “A Damp Squib in the Long Grass: The Report of the Commission on a Bill of Rights”. The abstract of the article, which gives an idea of its scope and of the view I take of the Commission’s Report, is as follows:

In December 2012, the Commission on a Bill of Rights, established by the UK Government, issued its final report. The Report advances very limited, inchoate proposals for a UK Bill of Rights that are essentially superficial in nature. The Report fails to grapple with the fundamental questions that would naturally fall to be confronted as part of a serious debate about the future direction of human rights protection in the UK. The failure of the majority clearly to articulate what it understands a Bill of Rights to be renders vacuous its recommendation that such legislation be adopted in due course. While the proposals contained in the Report are highly unlikely to be implemented in the foreseeable future, the shortcomings of the Report – and of the process that yielded it – contain important lessons for how future debates of this nature ought to be conducted.

The article will be published in the second issue of the 2013 volume of the European Human Rights Law Review. However, the text of a near-final draft of the article can be read here.

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A human rights reality check for the Home Secretary

Theresa May

In this week’s Mail on Sunday, the Home Secretary, Theresa May, published an article strongly criticising judges for allowing some foreign criminals to remain in the UK on human rights grounds, contrary (as she sees it) to instructions that Parliament issued to judges about how such cases should be decided. In her article, the Theresa May says that because judges have (she thinks) ignored those instructions, they should now be enshrined in primary legislation – an Act of Parliament. This, she says, will give the judges no choice but to do as they are told: because Parliament is sovereign, argues May, it can make whatever laws it wishes, including laws that require judges to decide cases in a way that is incompatible with fundamental human rights.

In this post on the UK Human Rights Blog, I respond to the Home Secretary’s article. I argue that her position is symptomatic of a broader malaise in public discourse concerning human rights. First, by assuming that Parliament is free to enact such legislation she fails fully to acknowledge that the UK is bound in international law by human rights obligations, such as those found in the European Convention on Human Rights. And, second, the Home Secretary assumes that there is necessarily a tension between judicial enforcement of human rights and respect for democracy; in adopting this position, she implicitly assumes a particular, and arguably inadequate, view of the nature of democracy.

The post is (I hope) written in a way that will be accessible to non-lawyers as well as lawyers. But there is one point that perhaps requires explanation. Towards the end of the post, I refer to the “margin of appreciation”. This principle was developed by the European Court of Human Rights in the case of Handyside v UKIt recognises that it will sometimes be appropriate for the Court to give a degree of latitude to individual States when it comes to deciding whether it is acceptable to limit an individual’s right in order to achieve some conflicting public interest. (In Handyside, the balance that fell to be struck was between the individual’s right to freedom of expression and the State’s wish to restrict access to certain forms of pornography in the interests, as it saw it, of public morality.) However, the point I make in my post is that there are limits to this. Where appropriate, the European Court will attach a degree of respect to the State’s view about whether restricting a right is necessary in the public interest: but this does not mean that States have an entirely free hand. The basic point, then, is that the legislation envisaged by the Home Secretary might well (indeed, almost certainly would) fall outside the UK’s margin of appreciation, thereby making it unlawful under the European Convention on Human Rights.

Belmarsh and the UK constitution #2: The House of Lords’ judgment

This is the second in a series of three posts on the Belmarsh Prison case. The posts originate from some videos that I have been recording for the Cambridge Law Faculty’s new admissions website. In the videos, I aim to introduce some fundamental ideas about the nature of UK constitutional law using the decision in Belmarsh as a case study. The first post, setting out the background to the case, can be found here. In this second post, I examine the judgment of the Appellate Committee of the House of Lords.  

The Belmarsh Prison case was looked at at several levels of the court system: the Special Immigration Appeals Commission, the Court of Appeal, the Appellate Committee of the House of Lords, and the European Court of Human Rights. I want to focus on the decision of only one of those courts: the Appellate Committee of the House of Lords. (The Belmarsh case was decided in 2004, well before the judicial functions of the House of Lords were transferred to what is now the United Kingdom Supreme Court. At that time, then, the Appellate Committee of the House of Lords was the UK’s apex court – that is, its highest court – albeit that beyond the UK, further claims could, as they still can, be brought in the European Court of Human Rights.)

Article 15 of the European Convention on Human Rights

What, then, was the issue that the House of Lords had to resolve in the Belmarsh case? The Government argued that the foreign terror suspects’ right to liberty could, in effect, be suspended – and suspended lawfully – because the “get-out” clause in the European Convention on Human Rights, Article 15, applied. The key question was whether that was the case. Could the right to liberty – which is normally protected by Article 5 of the European Convention – be suspended by using Article 15, thereby avoiding any incompatibility between the Convention and the legislation – the Anti-terrorism, Crime and Security Act 2001 – providing for the detention of the suspects?

Article 15 does not allow Governments to suspend human rights just because they feel like it. Quite the reverse. Preventing people from exercising their fundamental rights is a very serious step – and Article 15 rightly sets out some very strict conditions that have to be met before that step can be taken. So, what are those conditions? First, there has to be a “war or other public emergency threatening the life of the nation”. Second, if there is, then a State – like the UK – can “derogate“ from the Convention “to the extent strictly required by the exigencies of the situation”. In other words, human rights can be suspended as long as there is a war or emergency, but only to the extent that the suspension of human rights is made strictly necessary by the nature and severity of that emergency.

Was there a “war” or “public emergency threatening the life of the nation”?

So, in Belmarsh, the House of Lords had to decide whether those two conditions were met. First, then, was there a “war” or a “public emergency threatening the life of the nation”? Of the nine judges – or Law Lords, as House of Lords judges were known – who decided the Belmarsh case, eight thought that there was. None of those eight thought there was a “war” – notwithstanding the rhetoric of the “war on terror”. But eight Law Lords were prepared to accept the Government’s argument that the 9/11 attacks amounted to evidence of a global terror threat that was sufficiently likely to affect the UK – and, if it did, sufficiently likely to be sufficiently catastrophic – as to amount to a “public emergency threatening the life of the nation”.

One of the nine Law Lords, however, did not think there was a war or a public emergency. Lord Hoffmann argued that the others had misunderstood what Article 15 of the Convention means when it refers to an emergency that threatens “the life of the nation”. He agreed that Al-Qaeda might well have been a threat to the lives of individual people. But, he went on: “Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.”

This disagreement between Lord Hoffmann and the other eight judges reflects more than a dry, technical difference of opinion about the precise meaning of Article 15 of the Convention. Rather, Lord Hoffmann’s position was informed by his view about just how fundamental human rights are, and, therefore, about how easily they should give way to other considerations (such as a terror threat). Of course, this does not mean that the other Law Lords thought human rights were unimportant. Far from it. But they did disagree about the relative importance of individuals’ rights, on the one hand, and extent to – and circumstances in – which those rights should be capable of being sacrificed, or at least qualified, in order to secure other interests.

Was indefinite detention without trial necessary?

What about the second question, then? Was indefinite detention without charge or trial a necessary response to the “emergency” that the majority was prepared to acknowledge? The eight judges who thought there was a public emergency had to go on to decide whether the nature and seriousness of the emergency was sufficient to justify the particular step that had been taken – that is, indefinitely detaining foreign terror suspects without charge or trial. Seven of the eight judges said it was not. The Government had failed to show that such drastic steps were necessary. In particular, the Government had failed to show that lesser steps – such as surveillance, monitoring, and electronic tagging of suspects – would not have sufficed.

And, crucially, the Government had not adequately shown why the detention regime applied only to foreign terror suspects. As Lady Hale, one of the judges, pointed out, the logical inference was that some other – less drastic – way had been found of managing the threat posed by British suspects. And if it was not necessary to detain British suspects, it was hard to see why it was necessary to detain foreign – but equivalently dangerous – foreign suspects. The majority therefore concluded that the extra-judicial detention of foreign terror suspects had not been shown to be a necessary response to public emergency evidenced by the 9/11 attacks. It followed that the conditions for derogation set out in Article 15 of the Convention were not met – and that detainees’ right to liberty, under Article 5, remained in effect. And of course the provisions in the Anti-terrorism Act allowing for detention without trial were plainly inconsistent with that right.

The Human Rights Act 1998

To many people, the House of Lords’ conclusion in Belmarsh came as a real surprise. Not because the Government’s argument wasn’t weak – it clearly was. But because the court was prepared to recognise that weakness and condemn the Government’s position.Why was this surprising? Because previously, courts had almost invariably been extremely deferential to the Government on matters of national security. In other words, they had been generally unwilling to second-guess the Government when it asserted that some step or other had to be taken in order to uphold national security. And yet in the Belmarsh case, the House of Lords adopted quite a different approach.

The explanation (or at least a large part of it) for that change in attitude lies in the Human Rights Act 1998. That Act equips – indeed, requires – the courts to examine Government decisions and Acts of Parliament for compliance with human rights standards. And where the courts find that those standards have not been met, the Act entitles them to say as much. So when, in the Belmarsh case, the Government argued that the court should (in effect) mind its own business, and leave the Government to get on with protecting national security, the court had a clear and straightforward response. Things had changed. As Lord Bingham put it, the Human Rights Act “gives the courts a very specific, wholly democratic, mandate” to uphold human rights. In other words, courts will no longer accede to the argument that national security is none of their business – at least not when human rights are at stake. The Human Rights Act makes this the courts’ business.

Here, then, we see a shifting in the tectonic plates of the constitution, as power shifts from Parliament and the Government, on the one hand, to the courts, on the other. And that change in the bigger picture has profound consequences for ordinary people like the Belmarsh detainees. They found themselves, for the first time, able to challenge the balance struck by Parliament between the rights of individuals and the perceived interests of wider society. That, in turn, carves out a new role for law and for courts as a means of calling into question the choices that politicians have made, and raises some fundamental questions about the sort of constitution we have today.

In the third and final post, I will explain what the consequences of the Belmarsh judgment were, bearing in mind the fact that the UK Parliament is “sovereign”, meaning that, as a matter of domestic law, there is no limit upon the legislation it can enact. We will see that although this prevented the court from invalidating the legislation under which the detainees were held, the court was able to take steps that ultimately precipitated the repeal of that legislation. 

Belmarsh and the UK constitution #1: Setting the scene

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I have been recording some short videos for the new admissions website that we are developing at the Cambridge Law Faculty. In the videos, I discuss the Belmarsh Prison case, decided by the Appellate Committee of the House of Lords in 2004. Belmarsh is one of the most significant public law decisions of recent years, and (I think) it provides an accessible and interesting way of starting to understand how the UK’s constitution works. I will post the videos in due course. In the meantime, however, I’ll be posting the text of these mini-lectures over the next week or two. This is the first instalment (of three). 

Public law

People often assume that public law – constitutional law – is about very big picture questions. How are laws made? How does devolution work? What is the UK’s legal relationship with the European Union? Public law is about those things. But it is also about how that big picture relates to – and impacts upon, sometimes in very stark ways – real people.

Sometimes those people are marginalised and unpopular. And the question arises whether the majority in society are – and should be – free to treat such people as they wish. Or does – should – law prevent the majority from advancing their own interests at the expense of the weaker and the more vulnerable? Those are the questions that lie at the heart of the Belmarsh Prison case – more formally known as A v Secretary of State for the Home Department

Our story begins, however, thousands of miles from Belmarsh Prison in London. It begins in the north-eastern United States. As everyone knows, events in that part of the world on September 11th 2001 – and, most iconcally, at the World Trade Center in New York – changed the course of recent history. The fall of the Twin Towers precipated the decade long war in Afghanistan, and, only slightly less directly, the war in Iraq.

The events of 9/11 also gave rise to a climate of fear unparalleled in comfortable, secure Western societies in recent decades. That was certainly the case in the UK. As a key strategic ally of the United States, it was perfectly reasonable to suppose that if Al-Qaeda could strike in Washington DC and New York City, then London might be next.

The Anti-terrorism, Crime and Security Act 2001

Against that background, legislation – which became the Anti-terrorism, Crime and Security Act 2001 – was rushed at top speed through the UK Parliament in the days and weeks following 9/11. The Act was very long and complicated, covering a sweep of terrorism-related matters ranging from police powers to nuclear and aviation security. But of all the provisions contained in the Act, one set – known as Part 4 – was especially striking.

Here’s how Part 4 worked. The Home Secretary – a member of the Government – could issue a “certificate” against somebody if certain conditions were met. So, what were those conditions? First, she had to reasonably believe that the person’s presence in the UK was a risk to national security. Second, she had to reasonably suspect the person of being an international terrorist. And, third, the person concerned had to be a foreigner – in other words, not a British citizen.

If someone met those conditions, then a certificate could be issued. And then what? If it was not possible to deport the person then they could be detained instead. In other words, people who had certificates issued against them but who couldn’t be removed from the country could instead be imprisoned. And that didn’t mean imprisoned after having been convicted of a criminal offence following a fair trial before an independent court of law. It meant imprisoned, for an indefinite, open-ended period, on the say-so of a Government Minister.

The European Convention on Human Rights

Of course, people – including terror suspects, and even foreign terror suspects – have human rights. And one of the most fundamental human rights is the right to liberty. That right has been recognised in UK law for centuries, and is now enshrined in the European Convention on Human Rights.

Article 5 of the Convention says that everyone has the right to liberty, and that a person’s liberty can only be restricted in very limited circumstances – for example, when an independent court of law has found someone guilty of a criminal offence and sentenced them to a term of imprisonment. But it is very clearly a breach of the right to liberty to imprison someone indefinitely without a fair trial at the direction not of an independent judge but of a Government Minister.

So how could this happen? How could the UK make a law so clearly in breach of fundamental human rights? The Government, of course, had anticipated all of this. And it had a card up its sleeve. That card was another part of the European Convention – a sort-of “get-out clause”.

Article 15 of the Convention says that in certain very grave circumstances, it is lawful to, in effect, suspend some human rights, including the right to liberty. (But Article 15 doesn’t allow some other rights to be suspended. One right that cannot be suspended is the right not to be tortured – which includes the right not to be deported to countries where there is a real risk of torture. That is why the Government could not deport some foreign terror suspects – they came from countries known to practice torture – and therefore sought to imprison them in the UK instead.)

The Government’s case, then, was that following 9/11, the security situation was so severe that Article 15 allowed the right to liberty to be suspended. The suspects who were being held in Belmarsh Prison disagreed. And that disagreement was what the courts had to resolve in the Belmarsh Prison case. In doing so, the courts had to address some difficult and delicate questions about the extent to which individuals’ rights can be sacrificed or qualified in the pursuit of the (perceived) interests of the majority. And the courts also had to confront questions about their own role, and the extent to which the views of elected politicians expressed through an Act of Parliament – should take priority in such circumstances. Looked at in this way, the case was not only about how to strike the balance between individual liberty and (the perceived demands of) public safety, but also concerned the balance of power between Parliament and the courts.

In the second post, I’ll examine the decision of the House of Lords in the Belmarsh Prison case itself. A third post will follow, concerning the wider implications of the case—and the lessons we can learn from it about the nature of the UK’s constitution today. If you would like to read more about this case and related issues, you might like to look at chapter 1 of the textbook, Public Law, which I published in 2011 with Professor Robert Thomas. Chapter 1 can be read, free-of-charge, via this link on the Oxford University Press website.  

Ten things you wanted to know about the Bill of Rights Commission’s report but were afraid to ask

Screen Shot 2012-12-19 at 10.27.22On 18 December 2012, the Commission on a Bill of Rights published its report. This post answers ten key questions about the Commission, its report and its implications.

The report is very long, and paradoxically the parts that actually address the controversial questions are the least useful (for reasons that will become apparent if you read on). In contrast, those parts of the report (e.g. chapters 3 to 5) that set out the background to the debate and the existing legal position provide valuable overviews and surveys of other countries’ approaches to human rights protection and incorporation of the European Convention on Human Rights.

(1)  Why was there a Commission on a Bill of Rights?

The Commission on a Bill of Rights was established under the terms of the Coalition Agreement – which, in this area as in many others, sought to paper over divisions of opinion between the Conservatives and the Liberal Democrats by establishing a review. In their 2010 general election manifesto, the Lib Dems undertook to “[e]nsure that everyone has the same protections under the law by protecting the Human Rights Act”. The Conservative Party, meanwhile, said that it would “replace the Human Rights Act with a UK Bill of Rights”.

That somewhat opaque manifesto position inevitably fell to be read against more direct statements by Conservative spokesmen, some of which evidenced strong scepticism about the HRA. For instance, David Cameron said that the HRA should be replaced with a British Bill of Rights in order to “define the core values which give us our identity as a free nation” while facilitating a “hard-nosed defence of security and freedom”. The implication was that the HRA precluded a sufficiently hard-nosed approach in such areas. The further implication was that a domestic Bill of Rights would strike the balance differently between individuals’ rights (particularly those of such “undesirables” as terror suspects and prisoners who deign to demand to vote) and the interests of the “law-abiding majority”.

Ultimately, then, the Commission was formed because the Conservatives and the Liberal Democrats had gone into the 2010 election with irreconcilable policies on human rights. The Liberal Democrats wished to preserve the status quo – that is, the courts’ powers under the HRA to protect rights – while the Conservatives wanted to reduce the extent to which priority is afforded to rights over other interests. The Commission was thus given an impossible task of reconciling the irreconcilable – and it is unsurprising that its report is a damp squib.

(2)  What does the Commission propose?

That question is surprisingly difficult to answer. One of the members of the Commission resigned earlier this year, and those who were left failed to arrive at a consensus. There are therefore majority and minority views contained within the report – and the picture is further complicated by eight additional papers written or co-written by individual members of the Commission, but which do not have the support of all members.

However, a majority of members think that there should be a UK Bill of Rights. In line with the Commission’s terms of reference, the Bill of Rights would build upon the Human Rights Act in that, like the HRA, it would seek to give effect in UK law to the rights contained in the European Convention on Human Rights (plus perhaps some other rights – on which see below). All of this sounds very much like a rebranding exercise – which is essentially what it boils down to. As one blogger has put it, the public is “fed a diet of strident anti-human rights rhetoric by a number of daily newspapers and by certain politicians”. As a result, the HRA (a majority of members of the Commission have concluded) has become such a damaged brand that it is likely to be beyond redemption, making a fresh start necessary. And, says the Commission, a UK Bill of Rights would lead to a greater sense of “ownership”, helping to dispel the myth that human rights are an alien concept imposed upon the UK by a foreign court.

(3)  Doesn’t everyone agree?

No. Two members of the Commission – Helena Kennedy and Phillipe Sands – entered a strong dissent which is set out in some detail in a separate paper (“In Defence of Rights”) annexed to the report and in this article in the London Review of Books. They saw little evidence of an “ownership” problem, arguing that those opposed to the HRA in its present form often based themselves on misinformation peddled by the media and politicians – a problem of public understanding that could be tackled without changing the law. They concluded that the majority had failed to identify substantive problems with the HRA (as distinct from problems of perception) and that there was a risk that support for a Bill of Rights could operate as a Trojan horse for advocating British withdrawal from the ECHR system.

Elaborating upon this point, Kennedy and Sands argued that for some members of the majority, a UK Bill of Rights would be “little more than a re-branding exercise intended to foster a greater  sense  of  ‘ownership’”; but for others it would offer “a  convenient  means to reduce rights, to cast Europe adrift and return to the delusional idyll of an earlier age of sovereign authority unconstrained by obligations set out in international instruments”. Kennedy and Sands were unwilling to be associated with a case for a Bill of Rights that might ultimately weaken the protection of rights by bringing about the UK’s withdrawal from the ECHR.

Before leaving those who dissent from the majority’s conclusion, it is worth drawing attention to the excoriating criticism of the majority’s view in an article in the Guardianby eminent human rights barrister Ben Emmerson. He castigates the majority’s proposals as “lazy and sloppy” ones advocated by people who he says (in the main) lack “recognized competence in human rights law”. “It is like allowing the editors of the Daily Mail and the Sun to draft our constitution,” says Emmerson.

(4)  What rights would be in a UK Bill of Rights?

The Commission’s terms of reference required it to produce proposals that would build upon the HRA: meaning that a commitment to the ECHR had to be taken as a given. (As explained below, this constraint was almost more than some members of the Commission could bear.) But the Commission did consider whether additional rights should be contained in a Bill of Rights. On this point, they found a strong case for a free-standing equality provision (although it is unclear whether this would add anything in substance to the protections already found in the Equality Act 2010). There was not, however, an appetite for including within a Bill of Rights such things as socio-economic rights and environmental rights.

But the Commission’s conclusions on all of these matters were tentative because – in an extraordinary concession – it said that it lacked the expertise and experience needed to make firm recommendations about what rights should be contained in a Bill of Rights. This does not reflect well on the Commission, the way in which it was established, or the processes it followed in arriving at its conclusions.

(5)   How would rights in a UK Bill of Rights be protected?

A Bill of Rights, as conceived by a majority of the Commission, would work in a similar way to the HRA: courts would not be able to strike down Acts of Parliament that were found incompatible with human rights, but would instead be able to issue a non-binding “declaration of incompatibility”. This, thought the Commission, struck a sophisticated and appropriate balance between the sovereignty of Parliament and the effective protection of human rights. However, while this conclusion is a sensible one, its adoption underlines the fact that, at best, a UK Bill of Rights as conceived by the majority of the Commission would amount to a repackaging of the HRA.

In a separate paper annexed to the main report, two members of the Commission – Lord Faulks and Jonathan Fisher – argue that thought should be given to providing the courts with greater powers than they have under the HRA by allowing them to strike down, or refuse to apply, rights-incompatible legislation. However, this proposal does not appear to be born of enthusiasm for judicial protection of human rights. As well as raising the possibility of the UK’s withdrawal from the ECHR (meaning that a UK Bill of Rights would protect an entirely British set of rights – whatever that means), Faulks and Fisher anticipate that judges would use a strike-down power more sparingly than they use their present, lesser power to issue declarations of incompatibility. Paradoxically, then, their intention appears to be to equip courts with powers that they would be reluctant to use. It is also worth noting that Faulks and Fisher’s paper demonstrates the fragility of the coalition of views comprising the majority.

(6)  Would the UK still be part of the ECHR system?

Yes. Or at least, that is the official line of the majority. But their view on this point is expressed in very careful terms: their proposals are put forward “in accordance with their terms of reference … on the basis that [a Bill of Rights] would incorporate and build on all of the UK’s obligations under the ECHR”. Yet, as noted above, two members of the Commission explicitly advocate the possibility not only of decoupling a Bill of Rights from the ECHR, but of withdrawing from the ECHR itself. So while the majority is not formally proposing withdrawal from the ECHR, it is plain that some members of the majority think that a UK Bill of Rights could pave the way for withdrawal.

The majority’s position is further complicated by the fact that they envisage that the rights contained in a UK Bill of Rights may not be expressed in the same language as those contained in the ECHR. At present, the Convention rights are reproduced verbatim in the HRA. But, says the majority of the Commission, there is a “strong case at least in principle for drafting [a UK Bill of Rights] in language reflecting our own heritage and tradition”. This would help, they think, with the (perceived) “ownership” problem: that, at present, people think that the HRA gives effect to “foreign” rights that are insufficiently “British”.

But there are three problems with this position. First, human rights are supposed to be universal: they are rights to which people are entitled by virtue of their humanity, not their nationality. Any re-expression of the rights in “British” language could only be legitimate if it was cosmetic. Second, the UK (unless those arguing for withdrawal prevail) would remain bound by the ECHR, creating the risk that a differently-worded UK Bill of Rights would be out of step with the UK’s international obligations. And, third, the rights in the ECHR are not in any event “foreign” ones. The UK was closely involved in the drafting of the Convention, and the rights, for the most part, reflect values deeply embedded in the legal culture and laws of the countries of the UK.

(7)  Would the UK still be bound by ECtHR judgments?

A large part of the impetus for the formation of the Commission was dissatisfaction on the part of Conservative politicians with judgments of the ECtHR and judgments issued by UK courts implementing the Convention. As is by now well-known, the prospect of implementing the ECtHR’s judgment in Hirst v UK (No 2) holding that (at least some) prisoners have a right to vote makes the Prime Minister feel “physically ill”. So, too, it may be inferred, does the UK Supreme Court’s judgment holding that indefinite inclusion in the sex offenders register, with no prospect of reprieve in the event of rehabilitation, is incompatible with the right to respect for private life. That “offensive’ decision”, which flew “completely in the face of common sense”, prompted the Prime Minister to vow that a Bill of Rights commission would be “established imminently because … it’s about time we started making sure decisions are made in … Parliament rather than in the courts”.

But what difference would a UK Bill of Rights along the lines envisaged by the Commission make? Ultimately, none. The UK – for as long as it remains a party to the ECHR – remains bound in international law by the Convention rights and the Strasbourg Court’s judgments. That is why some members of the Commission, like Faulks and Fisher, openly contemplate withdrawal from the ECHR; only if that step were taken would it be possible to move beyond the current position which the Prime Minister appears to regard as unacceptable.

(8)  What about “responsibilities”?

For some time now, politicians – both Labour and Conservative – have argued that there is too much talk of individuals’ rights, and not enough about their “responsibilities”. A vague notion has emerged that rights should somehow be linked with, or dependent upon, responsibilities: that those who fail to discharge the latter should be unable, or less able, to enforce the former. The Commission on a Bill of Rights has, quite rightly, concluded that this is nonsensical: that is fundamentally misconceives the nature of human rights. “[I]t is in the nature of human rights,” says the Commission “that they exist for all human beings equally without reference to whether they are ‘deserving’ or not and that they cannot be made directly contingent on the behaviour of the individuals concerned.”

However, the Commission does not entirely dismiss the relevance of “responsibilities”. First, it concludes that awards of damages for breaches of human rights should be informed by the behaviour of the victim. And, second, it thinks that there may be a case for a declaratory provision in a Bill of Rights “setting out the importance within our society of mutual responsibilities towards one another”.

(9)  Should a Bill of Rights be adopted right now?

The Commission thinks not. This is for two main reasons. First, the Commission recognizes that “any process of moving towards the creation of a UK Bill of Rights would have to be undertaken gradually, with full consultation, and with great care to avoid creating divisiveness and disharmony”. This is a sensible view. Indeed, the way in which the Commission itself was set up attracted criticism, and it is good that the Commission recognizes that a more far-reaching and inclusive process would be necessary were a Bill of Rights to be adopted. This point is particularly important given that public scepticism about the HRA may in part be attributable to the lack of such a process prior to its enactment.

Second, the majority on the Commission believes that this is not the right time to adopt a Bill of Rights because the constitutional future of the UK is so uncertain. In particular, the Commission does not think that a debate about a UK Bill of Rights could sensibly get underway until the referendum on Scottish independence has been held. The outcome of that referendum – whichever way people vote – is likely to have profound implications for the future development of the UK’s constitution, and it seems sensible that any discussion about a Bill of Rights should form part of the wider conversation that is likely to ensue.

(10)  What next?

It is extremely unlikely that anything will happen before 2015: that is, after the Scottish independence referendum and after the next UK general election. Beyond that, it is very hard to predict what will happen. Much will depend on the outcome of those two democratic processes.

The Bill of Rights Commission’s terms of reference precluded it from formally considering the case for UK withdrawal from the ECHR. But it is clear, as noted above, that some of the members of the Commission think that such a step may be warranted. It is also the case that the possibility of withdrawal is now entering into mainstream political debate to an unprecedented degree. The Lord Chancellor and Justice Secretary, Chris Grayling, wrote in the Telegraph earlier this week: “We believe that with rights come responsibilities. And we believe that the European Court of Human Rights has overstepped its mark, and that things have to change.” It is therefore entirely conceivable – but not yet certain – that the Conservative Party will go into the next election advocating withdrawal from the Convention.

It is time for an open and honest discussion about all of these matters. Those arguing for a UK Bill of Rights need to be clear about what it is they are advocating. A Bill of Rights that simply repackages the HRA? A Bill of Rights that extends and deepens legal protection of rights in the UK? Or one that reduces that protection by decoupling the UK human rights system from that of the ECHR? In particular, those arguing for the latter must be forced to make plain their agenda and to attempt to justify it.

That task will be a hard one. As Phillipe Sands and Helena Kenndy put it in their dissenting paper: “A UK Bill of Rights may seem harmless and even attractive at first sight, but alarm bells should be ringing about motivations. For us, human rights is about working not just within our own country but with other countries to improve the human condition, to engender respect for all individuals, to protect those who are vulnerable, and to create the conditions for the delivery of justice and peace. To remove the glue that holds us together with other nations is dangerous.”

Richard Bacon MP and Nick Herbert MP on human rights

Screen Shot 2012-12-06 at 09.31.38On 4 December 2012, Richard Bacon MP introduced—under the “ten minute rule”—a Bill to repeal the Human Rights Act 1998. The Bill was rejected when put to a vote. But the fact that Bacon’s Human Rights Act 1998 (Repeal) Bill was introduced is significant in itself. It demonstrates growing unease—or at least, unease that is articulated more frequently and more boldly—with the idea of law and courts preventing elected politicians from doing what they think is right.

This reflects the tension—referred to in my previous blog post—between “political constitutionalism” and “legal constitutionalism”, which is concerned with the ways in which the exercise of power should be constrained. One way of understanding this is to ask: “What should stop the state from doing bad things—and who, in the first place, gets to decide what ‘bad things’ are?” Political constitutionalists argue that we should rely upon the political process—and, ultimately, upon the capacity of the majority (through Parliament) to exercise self-restraint. Legal constitutionalists, in contrast, argue that self-restraint by the majority is inadequate, and that there must be some external restraint upon what law-makers can do—e.g. by the courts enforcing constitutional laws that protect fundamental rights and interests, including those of minority groups too small or weak to punch their weight in the political process.

Bacon’s speech in the House of Commons earlier this week unashamedly, if implicitly, advocates political constitutionalism. (The text is available here; or you can watch the speech via this link.) He argues that:

… our best check is not unelected judges, but the spirit of liberty in the hearts of the elected representatives in this House.

This, he suggests, is because the sort of questions that human rights courts tend to engage with are ultimately “political” questions, even if they are presented as legal ones:

The fundamental point is that one cannot alter the political nature of a decision by changing the location where the decision is made. Judges do not have access to a tablet of stone not available to the rest of us which enables them to discern what our people need better than we can possibly do as their elected, fallible, corrigible representatives. There is no set of values that are so universally agreed that we can appeal to them as a useful final arbiter. In the end they will always be shown up as either uselessly vague or controversially specific. Questions of major social policy, whether on abortion, capital punishment, the right to bear firearms or workers rights, should ultimately be decided by elected representatives and not by unelected judges.

Bacon’s view is highly contestable. But if it is accepted, the question becomes: what should be done? Many people—including the Prime Minister—seem to think that the solution to this perceived problem is to repeal or amend the Human Rights Act 1998. In its submission to the Commission on a Bill of Rights, the Cambridge Centre for Public Law pointed out that this is not so, because the UK would remain bound in international law by its obligations under the European Convention on Human Rights. Professor David Feldman also makes that point in his piece published on the UK Constitutional Law Blog today. To his credit, Bacon also recognizes this point:

there is no point in belonging to a club if one is not prepared to obey its rules. The solution is therefore not to defy judgments of the Court, but rather to remove the power of the Court over us … [W]e need to repeal the Human Rights Act and resile from the convention.

In advancing this argument, Bacon echoes a speech given last week by another Conservative MP, Nick Herbert. (For a great commentary on Herbert’s speech, see Carl Gardner’s article on his Head of Legal Blog.) Criticising the notion of a “British Bill of Rights” that would sit alongside the European Convention, Herbert argues:

Far from giving us greater discretion to strike a balance between liberty and security, a British Bill of Rights, complementary to the Convention, would give us even less.  Our courts would remain bound not only by the Convention, and Strasbourg’s interpretation of it, but also by our judges’ interpretation of the British Bill of Rights. 

He therefore concludes

that we should resile from the European Court of Human Rights, repeal the Human Rights Act and introduce instead a UK Bill of Rights.  In doing so, we could also address some of the flaws in the operation of the Human Rights Act.

This suggests a subtle but important difference between the positions being staked by Herbert and Bacon. Whereas Bacon appears (on the basis of this week’s speech, at least) to be an unambiguously political constitutionalist, Herbert does not dismiss the case for legal-judicial enforcement of rights. Rather, he argues that British courts should be the ultimate arbiters of what those rights mean.

However, this position is not without difficulty. Herbert rightly observes that the language of “rights” has been devalued: “There has been, as Lord Justice Laws recently put it, a tendency to treat ‘I have a right to…’ as a synonym of  ‘I would like…’” But properly understood, rights that constitute “human rights” are truly fundamental—and universal. They are rights possessed by people because of their humanity—not because of where they live. As Professor John Eekelaar has pointed out:

It is antithetical to the core idea of human rights that they should be particular to any specific jurisdiction or particular group of people, or that they should be unavailable to any jurisdiction or group of people. That is why they are usually located in international instruments … One of the main values of the European system lies in the principle that when a human right is recognised as being held by someone in one European country, people living in other European countries will be considered as enjoying the same right. This should not be seen as a manifestation of foreign (i.e. European) power over national interests, but as an appreciation of the implicit commitment to universality in all human rights norms.

On this view, the pan-European nature of the system for upholding human rights in the UK is not (as Herbert thinks) one of its greatest weaknesses, but one of its greatest strengths. As debate in this area increasingly acknowledges that the ECHR is a real constraint – meaning that changes to the Human Rights Act would ultimately accomplish little – it becomes incumbent on those who share Eekelaar’s view forcefully to articulate and justify the key arguments: that the fundamentality of some rights should place them beyond legislative interference by the majority, and that the universality of such rights exposes the unfounded parochialism of the Euro-scpectic case against the ECHR. But this cuts both ways. The ECtHR, for its part, must resist the urge to (as Lord Hoffmann put it) “micromanage the legal systems” of the states that are parties to the Convention if it wishes to retain respect as the custodian of enduring, timeless values.

Why can’t the UK deport Abu Qatada?

This guest post is by Natasa Mavronicola, a PhD candidate at the Faculty of Law, University of Cambridge. 

The Special Immigration Appeals Commission has recently ruled that radical cleric Mohammed Othman (Abu Qatada) cannot lawfully be deported to Jordan, as such deportation would be in breach of the right to a fair trial enshrined in Article 6 of the European Convention on Human Rights (‘ECHR’), which has been transposed into UK law through the Human Rights Act 1998. This development has been met with strong reactions by the UK government, as well as a significant segment of the media and the public. An outline of the key points of law at issue in this case can provide food for thought and enable informed debate on this matter.

The right to a fair trial and the use of evidence obtained through torture

Article 6 of the ECHR provides that everyone is entitled to a fair trial in the determination of his civil rights and obligations or of any criminal charge against him. The right to a fair trial enshrined in Article 6 of the ECHR encompasses a number of elements, including the entitlement to a reasonably prompt hearing, the right to be tried before a fair and impartial tribunal, the presumption of innocence, and rights of cross-examination in criminal trials. Recently, the Grand Chamber of the European Court of Human Rights (‘ECtHR’) ruled that the use of evidence obtained through torture to convict a defendant in a criminal trial amounted to a breach of the right to a fair trial enshrined in Article 6 of the ECHR. Torture is absolutely prohibited under Article 3 of the ECHR and at international law, and the right not to be subjected to torture is seen by the ECtHR as a core right, which is fundamental in democratic societies and which is inviolable. The use of evidence obtained through a breach of such a fundamental right is thus seen as wholly tainting the fairness of the trial. Moreover, statements obtained by individuals through torturing them are perceived as unreliable by the ECtHR, an attribute that would further undermine the fairness of the trial if such evidence were admitted.

This became crucial in relation to Abu Qatada’s proposed deportation to Jordan, where he faces charges for the commission of terrorist offences. The Jordanian authorities held evidence against him, in the form of incriminating witness statements from individuals implicated in the relevant terrorist offences. Abu Qatada alleged that certain of these witness statements were likely to have been obtained through the torture of those witnesses and were also likely to be used against him in court.

Expulsion, flagrant breach, and the ‘real risk’ question

The ECtHR considered this allegation in Othman (Abu Qatada) v UK and made a number of important legal points and findings. The Court considered that the prospect of a ‘flagrant denial of justice’ in the country to which an individual was being expelled to could raise an issue under Article 6 ECHR. According to the Court, a flagrant denial of justice went beyond irregularities or lack of safeguards in trial procedures but amounted to a breach that was so fundamental it amounted to a destruction of the very essence of the right enshrined in Article 6. The Court then confirmed that the use at trial of evidence obtained by torture would amount to such flagrant denial of justice and breach Article 6, since, according to the Court, it would make the whole trial immoral and illegal and render its outcome entirely unreliable. The Court therefore found that if the applicant could show there was a real risk of such evidence being admitted in the trial against him in Jordan, his expulsion to Jordan would be contrary to Article 6 of the ECHR.

Turning to the factual allegations regarding the risk of the use of such evidence in trial, the ECtHR found that the admission of evidence obtained by torture was widespread in Jordan despite guarantees against such admission in the law. The Court further relied on findings by the UK’s Special Immigration Appeals Commission, which had found that the applicant had demonstrated a real risk that certain key evidence was obtained by torture and that there was a high probability that this evidence would be admitted at the applicant’s trial. The ECtHR therefore found that the applicant had demonstrated a real risk of a flagrant denial of justice if he was deported to Jordan, and the applicant’s deportation to Jordan would be in violation of Article 6 of the ECHR.

Despite attempts by the UK government to use assurances by the Jordanian government and changes in Jordanian law to disprove the finding that there was a real risk of the admission of evidence obtained through torture in Abu Qatada’s prospective trial in Jordan, the Special Immigration Appeals Commission ruled on 12th November 2012 that the real risk subsisted. The government is considering an appeal from this decision, and Abu Qatada has been released on bail in the meantime.

Abu Qatada’s case raises questions regarding the interplay between the absolute prohibition on torture and the notions of justice and fairness. For instance, how far does or should the unreliability of evidence obtained by torture be a significant factor in the analysis? The case further raises questions over the relationship between law (notably human rights law) and politics in the notoriously contentious area of security and counter-terrorism. In particular, it highlights that human rights law often operates to protect the core rights of extremely unpopular minorities or individuals even against vehement public opinion. Given that the prohibition on torture is portrayed by the ECtHR as fundamental to democratic society and as core to the essence of justice, the controversy that this case has given rise to exposes the deep-rooted and constant debate over the precise meaning, content, and role of democracy, justice, and human rights in our societies.

Free speech and burning poppies

Yesterday was Remembrance Day. Today, it is reported that Kent Police have arrested a man for posting an image of a burning poppy on a social networking site. This raises fundamental questions about the extent to which one person’s freedom of expression should be restricted because its exercise may cause others to be offended.

Article 10 of the European Convention on Human Rights enshrines the right to freedom of expression in law, but at the same time acknowledges that it may be restricted if this is necessary to uphold other values, including the “rights of others”. The key questions concern (on the one hand) the extent to which others have a “right” not to be offended and (on the other hand) how valuable the freedom of expression in question is. (For instance, “political speech” – that is, commentary, whether spoken, written or artistic, on political matters – is generally regarded as especially valuable.)

This is an issue that the US Supreme Court has addressed on several occasions when considering whether the right to free speech in the First Amendment to the US Constitution precludes laws that ban the burning of the American flag – an act that may be perceived in the US to disclose a lack of patriotism equivalent to that indicated by the burning of a poppy in the UK. If you want to read more about this issue, start with the website of the American Civil Liberties Union, which has a useful collection of resources on flag desecration.

Joshua Rozenberg on UK’s relationship with the Council of Europe

Joshua Rozenberg has recently published an excellent article in the Guardian concerning the UK’s relationship with the Council of Europe – the international organisation (not to be confused with the European Union) which seeks to promote and secure protection for human rights in Europe. Rozenberg argues that that relationship will soon reach a turning-point, such is the UK Government’s dissatisfaction with the judgments of the the European Court of Human Rights concerning the European Convention on Human Rights (one of the Council of Europe’s principal treaties).

In his article, Rozenberg cites as evidence of this tension a range of examples, including the prisoner voting issue, the Court’s decision, earlier this week, concerning the dismissal from his job of a member of the British National Party, and an upcoming decision about whether the UK breached its positive obligation to protect life by failing to intervene when one person made serious threats against another person, later going on to kill him.

Rozenberg also refers to a fascinating interview on his Law in Action programme with Sir Edward Garnier QC (who, until recently, was the Solicitor-General), in which the UK’s relationship with the Council of Europe is discussed. If you want to listen to the programme, here is a link to it on the BBC iPlayer.

Justice Secretary on prisoner voting and disproportionate force against burglars

I have posted before (here and here) on the appointment of Chris Grayling as Lord Chancellor and Justice Secretary. Since his appointment, two major issues that Grayling has had (in one case) and chosen (in another) to deal with are prisoners’ voting rights and the rights of householders to act in self-defence against burglars. Yesterday, Grayling was interviewed on the BBC’s Andrew Marr show and was asked about both of these matters. (The interview can be watched on BBC iPlayer until Saturday 3rd November. The link is to the whole show; the Grayling interview starts around 40 minutes in.)

On prisoner voting, Grayling was (unsurprisingly) ambigious. He acknowledged that, at present, the “reality is that we [the UK] are signed up” to the European Convention on Human Rights, and that there would therefore be consequences if the European Court’s judgment, holding British law in this area to be incompatible with the Convention, were ignored. But pressed by Marr, Grayling did not rule out, in the medium term, the UK’s withdrawal from the ECHR. He reserved his position, indicating that the Conservative Party would bring forward proposals in time for the next election, and implied that those proposals may consist of steps that could not be taken at present thanks to the constraining effect of coalition politics. But looking beyond this period of coalition, Grayling said that the present human rights system “has got to change”.

Ultimately, Grayling’s view seems to be that the European Court of Human Rights has substantially overreached itself by interpreting and applying the Convention in ways that were not intended when the Convention was first drafted. (I have explained elsewhere why it need not follow that this is inappropriate.) Grayling’s perception appears to be that the Convention was intended to address grotesque human rights abuses (he gave the example of imprisonment without a fair trial in gulags in Stalin’s Russia), the implication being that the Court has stretched too far the range of matters that are now treated as unlawful breaches of the Convention.

On householders’ rights to defend themselves against burglars, Grayling defended his proposal to allow “disproportionate force” to be used (as opposed, at present, to “reasonable force”). My colleague, Professor John Spencer, has recently posted a Cambridge Law Faculty Law in Focus video on this subject, in which he suggests that the change proposed by Grayling is based on a misconception of the present legal position – based partly on tabloid misreporting of the notorious Tony Martin case. However, Professor Spencer goes on to argue that other aspects of the law in this area – concerning the ability of wounded burglars (or the families of burglars who are killed) to recover damages from householders and the sentencing of householders who kill burglars. Professor Spencer’s video can be watched below.