They do like to make it difficult, do these politicians. Just when I was thinking that, whatever else might be wrong with them, the Conservatives’ promise to scrap ID cards would make them the obvious people to vote for come the next election, the boy David comes out with nonsense like his article in the Sunday Times, to which my attention was drawn by an excellent piece by Stephen Poole, at Unspeak :
I’m also convinced that we need to change our attitude to human rights. The Human Rights Act was a new Labour flagship but its totemic status has made ministers unwilling to acknowledge how much it is hampering the fight against terrorism.
It is almost impossible to deport even the most ruthless foreign terror suspect from Britain. The European convention on human rights, upon which the Human Rights Act is based, has been extended by case law far beyond the original intentions of its founders. It is time to replace the Human Rights Act with a British bill of rights that will enable ministers to act within the law to protect our society.
If MI5 tells the government that a foreign national is a dedicated terrorist and a danger to national security, then the home secretary should be free to balance the rights of the suspect with the rights of society as a whole and proceed with deportation if necessary.
David Cameron can, of course, pass whatever laws he likes. However, this brilliant wheeze couldn’t be made to work without our withdrawing from the European Convention on Human Rights altogether, which would also almost certainly involve our having to withdraw from the EU. Some might argue this would be no bad thing, but I’m not at all sure it’s Conservative Party policy and I really think it needs arguing on its merits rather than as a sort of side effect of enabling the Home Secretary to deport folks.
Repealing the Human Rights Act would have no effect whatsoever on the Home Secretary’s power — or lack of it — legally to deport or extradite people to countries where there’s a substantial risk of their suffering torture or inhuman or degrading treatment. That was decided by Soering v United Kingdom (1989) 11 EHRR 439 and Chahal v United Kingdom (1996) 23 EHRR 413 .
Note the dates — 1989 and 1996. Both pre-date the Human Rights Act 1998. The significance of the HRA is that it gives British courts the power to hear applications that a particular law, or piece of secondary legislation or action by a public body contravenes Convention Rights. Repeal the HRA, and you go back to the status quo ante, whereby the applicant has to take his case to Strasbourg and let them decide, which is what Mr Soering and Mr Chahal had to do. Doesn’t change anything; just adds massively to the time and costs.
Once, however, the case has been decided and the precedent set, then the precedent becomes, in effect, part of British law. That’s because of the rule of construction used by the courts that that Parliament does not intend to legislate contrary to UK international law. So long as we’re signatories to the ECHR, then when there’s a clear precedent — as there now is because of these two cases — the courts will tell the Home Secretary that he’s acting unlawfully by trying to deport someone in circumstances covered by those two cases. And if David Cameron’s got rid of the HRA and passed a new law saying he can deport people to face torture or inhuman or degrading treatment, then it’ll have to go all the way to Strasbourg for a court to tell him that the law’s unlawful under our membership of the European Convention on Human Rights.
And look at the justification for all this.
If MI5 tells the government that a foreign national is a dedicated terrorist and a danger to national security
This is indeed ‘changing our attitude to human rights’.
It’s deciding we don’t want anything to do with them. What happened to due process, which sometimes discovers that MI5 has offered contradictory evidence about the same chap in two different terror cases? What happened, come to that, to Blackstone’s dictum in his Commentaries on the Laws of England :
liberty cannot subsist long in any state, unless the administration of common justice be in some degree separated both from the legislative and also from the executive power.
What happened to ‘innocent until proven guilty‘, for heaven’s sake? Are we replacing it with ‘innocent until suspected by MI5,’ then? Bloody hell, it’s their sodding job to be suspicious and paranoid about virtually everyone!
If MI5 tell the Home Secretary that they think so-and-so is a danger to national security and should be deported, whatever risk of execution or torture he might face, the Home Secretary should be able to go ahead and do what he wants, without any sort of judicial oversight?
This rule by ministerial ukase on the advice of the spooks has more to do with Stalin’s Russia than Conservatism, for Christ’s sake! If they’re not going to conserve some of the most basic principles of English law that have stood us in good stead for centuries, then what bloody hell are they going to conserve?
tag: David Cameron, Conservative Party, War on Terror, Civil Liberties, Human Rights Act