Not as widely publicised as it might have been, but Lord Falconer, the Lord Chancellor, published some guidance on Monday for public authorities on the Humans Rights Act and what it means for them in practice. And he accompanied it with what I think is quite a good speech.
However, it does have to be said that the case studies in the guide to good practice do contain some remarkable omissions, though I suppose it would be a bit disloyal to his good friends, the last three Home Secretaries, to have mentioned some of those incurable recidivists’ problems with the High Court and, on occasion, the Law Lords.
Despite this, much of the speech can be read as a shot across the bows of the present incumbent Home Secretary. Dr Reid thinks that
we remain unable to adapt our institutions and legal orthodoxy as fast as we need to. This is the area that puts us at risk in national security terms. There have been several contributory factors to this including party political point scoring by the Conservative and Liberal opposition during the passage of key anti-terrorism measures through to repeated challenges under the Human Rights Act which I continue to contest.
and complains that
At a time when a single terrorist could cause irreparable damage on a hitherto unknown scale to our society and our confidence in the entire state I find myself in a situation where, in dealing with foreign national terrorist suspects: .
• we can’t always prosecute individuals due to the difficulties in obtaining sufficiently cogent admissible evidence for a criminal trial;
• often we can’t deport them, even if they have no proper basis for claiming asylum here, due to concerns about the treatment they might receive in their home country;
• and we can’t detain them pending deportation if deportation is not a realistic prospect due to concerns about their treatment on return, as to do so discriminates against them.
This presents me or any home Secretary charged with the task of protecting the public from international terrorism in a very difficult position.
Lord Falconer seems to disagree;
The practical application of the Human Rights Act has not, as some ill informed commentators may argue, given free reign to the terrorist. It does not weaken our response. As Kofi Annan commented “Human rights law makes ample provision for strong counter-terrorism action, even in the most exceptional circumstances”. He is right, but it also does far more. It puts our values to the forefront of the fight against terrorism.
As he explains rather earlier in his speech,
All counter-terrorism legislation looks to strike a balance between public safety and individual rights, one that establishes the boundaries of a lawful and proportionate response. And by public safety I mean the safety of each and every person in the UK. If a Government gets that balance wrong an independent judiciary can declare legislation incompatible with the Convention.
We must convince our citizens that human rights are applied universally, fairly and consistently – something, of course, which is not confined to counter-terrorism.
Last week the Lord Chief Justice, Lord Phillips captured the point, and let me quote him:
“people should be confident that their adopted country treats them without discrimination and with due respect for their human rights. If they feel that they are not being fairly treated, their consequent resentment will inevitably result in the growth of those who, actively or passively, are prepared to support the terrorists who are bent on destroying the fabric of our society. The Human Rights Act is not merely their safeguard, it is a vital part of the foundation of the fight against terrorism.”
I agree entirely with Lord Phillips’ analysis. It goes without saying that we must practice what we preach. We cannot espouse our values on an international stage if we ignore them at home. To ride rough-shod over human rights is to hand victory to the terrorist.
The Human Rights Act operates on a practical as well as an ideological level- it protects us as individuals from the state, while defending our values as a society.
On a more general level, other sections of his speech, and the guides themselves, make the point that most of the rights in the HRA aren’t, in fact, absolute. Unlike the American Constitution, the ECHR can’t in general be used to trump all restrictions. It can in some cases; much to Dr Reid’s displeasure you can’t deport people if they’re going to be executed or tortured as a result, but in general you’re allowed to restrict rights so long as you’re doing it for a valid reason and so long as the measure you’re taking are proportionate. No one would argue that public safety isn’t a perfectly valid reason for restricting most convention rights — the courts certainly don’t think so. The issue is always whether the specific steps taken are proportionate in the circumstances. Yes, it would doubtless help Dr Reid if he could lock up everyone he didn’t like the look of, but no, that wouldn’t be proportionate to whatever threats we’re currently facing.
And certainly some of the horror stories you hear about daft decisions taken because of ‘human rights’ (not distributing photographs of people the police are after, for example, because of the suspects’ supposed rights to privacy) are based on a clear misunderstanding of what the law’s about. If the suspect wants to complain, he can do, and the courts will tell him that the infringement of his convention right to privacy was proportionate and was justified by the public interest in apprehending suspects.
I sometimes wonder whether some of these crackpot interpretations aren’t deliberate; someone who doesn’t like the HRA because he feels it cramps his style tries to discredit it by doing stupid things and claiming he’s forced so to do ‘by the Human Rights Act’.
Or maybe I just underestimate peoples’ ability to make up weak excuses for being idle — I would have put myself out and done this, but the HRA says I can’t.
Technorati tags: Human Rights Act, Lord Falconer, Civil Liberties, John Reid