Human rights: can we afford them?

Geoffrey Bindman
2 February 2006

The question posed has only one possible answer: we can and must afford them. Without them we abandon the Enlightenment and any claim we have to seek a just society governed by the rule of law. Human rights are an essential element in any modern model of a democratic society.

However, there is a legitimate question: are public safety and the ability to defeat terrorism compatible with strict adherence to human-rights principles? There are politicians in the United Kingdom and in the United States who no longer accept the primacy of human rights and are ready to abandon them in the belief that they impede or inhibit the effective conduct of the so-called "war on terror". The British prime minister Tony Blair said at a press conference announcing a raft of security proposals a month after the July 2005 bombings in London: "the rules of the game have changed." He seems to have meant that in present circumstances, human-rights principles are no longer sacrosant, or at the very least that they need to be modified to take account of new challenges.

Salus populi suprema lex. Governments rightly accept as a cardinal duty the protection of their citizens from harm: an exceptionally difficult task when the threat of it comes from small anonymous groups armed with massively destructive technology which can easily be concealed. The British government has followed the United States by introducing wide-ranging and stringent legal measures which it claims will reduce the likelihood of indiscriminate violence and bring its perpetrators to justice. These measures have eroded long-established safeguards of individual rights and in some cases have violated international human-rights standards binding on the United Kingdom and which the country's courts – or, if these courts fail to do so, the European Court of Human Rights – are obliged to uphold.

Geoffrey Bindman is a former chairman and vice-president of the Society of Labour Lawyers. He is current chairman of the British Institute of Human Rights.

This article is adapted from a lecture delivered at the Commonwealth Law Conference in London in September 2005.

Also by Geoffrey Bindman on openDemocracy:

"Justice in the world's light" (June 2001)

"Civil liberties and the 'war on terror'"
(May 2004)

"From race to religion: the next deterrent law" (August 2004)

"War on terror or war on justice? " (March 2005)

If you find this material valuable or provoking, please consider commenting on it in our forums – and supporting openDemocracy by sending us a donation so that we can continue our work for democratic dialogue

Politicians were under pressure to act decisively after 9/11 and again after the 7 July bombings in London, but new laws are only useful if the existing laws are inadequate. Violence is not new and the criminal law has long decreed harsh penalties for murder and assault, and for inciting or assisting those crimes. Recent politically motivated violence has some novel features. Certainly it is less likely to be limited by the traditional pattern of warfare between the uniformed armies of nation-states.

The public's safety

In Britain the problems are not new. Political violence has been a feature of British government in Ireland for several centuries. In modern times it has been a testing ground for counter-terrorism measures. The Prevention of Terrorism Act was enacted in a single day in 1974 in response to an Irish Republican Army attack in England's second city, Birmingham. It proscribed the IRA and similar organisations and gave the executive power to exclude suspected members from the British mainland. The Terrorism Act (2000) extended the powers worldwide, and banned a number of organisations, including al-Qaida.

However, membership is a flexible concept and organisations can be disbanded, reconstituted under different names, and may lack any kind of formal or tangible structure. The act of 2000 tried to spread its net as widely as possible, introducing a wide definition of terrorism and a range of new criminal offences designated to penalise the remotest possible links with political violence within or outside the United Kingdom. Though there are elements in this legislation which come close to the boundaries of core rights – to freedom of expression, to privacy, to liberty and security of person, and to a fair trial – it has largely escaped challenge on human-rights grounds.

After 9/11, the Anti-terrorism, Crime and Security Act (ATCSA, 2001) empowered the executive to detain suspected foreign terrorists indefinitely without charge or trial when there was no country to which they could be deported without facing the risk of torture. In order to avoid violating Article 3 of the European Convention on Human Rights which such deportation would entail, the government risked challenge for violating Article 5, which protects liberty and security of person. Furthermore, those who were subject to such detention were not entitled to know the grounds for it where the government chose not to disclose them.

The government's reason for not putting suspects on trial was their inability to produce evidence capable of establishing guilt at a trial or their unwillingness to expose clandestine witnesses or surveillance methods. The absence of a fair trial was itself a violation of Article 6 of the European Convention on Human Rights. The government attempted to avoid this challenge by purporting to derogate from its obligation to comply with Article 5, but the judges of the House of Lords declared that the derogation was ineffective: it was discriminatory and disproportionate (A and others v. Secretary of State for the Home Department [2004], UKHL 56). It discriminated against foreign citizens and it sought to deal with a threat which could equally come from British subjects (as was proved only too accurate by the fact that the 7 July bombers were all British citizens).

The government sought to comply with the Lords' ruling in a new Prevention of Terrorism Act in March 2005, introducing "control orders" to be applied indiscriminately to foreigners and British subjects. Control orders do not allow detention but can include house arrest and other restrictions on freedom of movement. The government headed off defeat in parliament only by agreeing that these powers should be temporary and promising a full inquiry into the state of counter-terrorism law by the end of 2005. Those indefinitely detained who were released on bail following the House of Lords' decision were made subject to control orders but otherwise the powers have been little used.

Though the safety of the public may be paramount, it does not follow that it is best protected by giving unlimited discretion to government to arrest and detain (less still to torture, maim or kill), nor to have unlimited access through telephone and email tapping to the activities of every individual. The safety of the public also depends on the maintenance of the rule of law and of the international human-rights standards to which Britain and other democratic nations have committed themselves. Some of the measures taken have been too widely drawn or have provided inadequate procedural safeguards. They have put in jeopardy the innocent as well as the guilty. It goes without saying that coercive measures must be proportionate to the threat and the offence.

Where international human-rights standards and treaty obligations fall within the jurisdiction of our courts it is the duty of judges to decide whether the government has acted within the law or not. This requirement has irked some government ministers. They argue that the powers conferred by a democratically elected parliament should not be challenged by unelected judges who thereby prevent the government from taking action which it deems necessary to protect the public.

But the preferable view, which Labour governments in Britain have hitherto always subscribed to, is that the judges' independent duty to interpret and determine the bounds of legality is as essential and permanent a feature of the constitution as parliamentary sovereignty itself. By incorporating the European Convention on Human Rights into the domestic law of the United Kingdom in the Human Rights Act (1998), the government itself deliberately extended that judicial role to cover monitoring compliance with the convention. In the case of the United States and other countries where there is a written constitution, the courts generally have the power and duty to strike down legislation which they deem to be incompatible with the constitution.

Article 3 of the EHRC, prohibiting torture or inhuman or degrading treatment, is the main source of the problem which has faced the British government in its recent desire to deport some foreign citizens whose presence is deemed a threat to security. The European Court of Human Rights has ruled that it is a violation of Article 3 to deport foreign citizens to countries where they may be tortured. For this reason the British government introduced in the ATCSA (2001) the power to lock foreign citizens up indefinitely without trial. The House of Lords rightly declared this power illegal.

There is every reason to believe that its attempts to get round this difficulty will also fall foul of judicial scrutiny. For insufficient reasons the authorities have declined to deal with such people by bringing them to trial for the relevant criminal offences. Incitement to crime is a crime and should be prosecuted as such.

The state's ambition

After the 7 July bombings in London, shortly before leaving for his holiday in Barbados, the prime minister proposed a raft of new measures, some of which had already been the subject of rumours and speculation. In some cases they were policy changes which did not require legislation. In other cases they appeared to be proposals which might be included in the legislation promised to replace the Prevention of Terrorism Act of March 2005; a period of consultation following the latter culminated in a new Terrorism Bill which is still proceeding through parliament.

New grounds for deporting foreign citizens have been proposed which do not require legislation because the home secretary already has unlimited powers to deport foreign citizens. Tony Blair's view was merely that among grounds on which this power would be exercised in the future would be fostering hatred and justifying violence. The home secretary subsequently published a list of "unacceptable behaviours" – he adopted the American usage by pluralising "behaviour".

The grounds listed are "fomenting, justifying or glorifying terrorist violence, seeking to provoke terrorist acts, fomenting other serious criminal activity, fostering hatred that might lead to inter-community violence".

What is striking about this list, apart from the fact that it requires no new powers to be given to the home secretary, is that most of the activities on it are probably criminal offences under the existing law. It is necessary to say "probably" because the list uses terminology slightly different from the statutory language of the Public Order Act (1986) , which prohibits incitement to racial hatred, or the language used in the statutory provisions and common law which prohibit incitement to terrorism and to crime generally. If there is evidence that any foreign citizen has committed any such acts, it must be asked why he or she has not been prosecuted as any British citizen could expect to be.

There is no current criminal offence of "justifying or glorifying terrorism", a gap which the prime minister also promised to fill. It has been included in the current Terrorism Bill but the House of Lords has rejected it. It remains to be seen whether the House of Commons will reinstate it. But there is an existing range of offences prohibiting assisting or promoting terrorism. Unless the new offence is to criminalise expressions of opinion which fall short of giving support to criminal acts, the existing law seems to go far enough. Any new legislation would be open to challenge on the basis of Article 10 of the European Convention on Human Rights which protects freedom of expression.

The most disturbing proposal in the prime minister's list is to "amend human rights laws, if necessary to prevent legal obstacles to new deportation rules." While this is clearly aimed at the difficulty posed by Article 3, described earlier, which prevents deportation to countries where the deportee might suffer torture or inhuman or degrading treatment, it revives a threat which has been made previously by Tony Blair.

Also in openDemocracy on human rights in the era of "war on terror":

Mary Robinson, "Making 'global' and 'ethical' rhyme: an interview" (December 2003)

Shami Chakrabarti, "Identity cards: nothing to hide, nothing to fear? " (June 2005)

Clive Stafford Smith, "Torture: an idea for our time" (August 2005)

Andrew Blick & Stuart Weir, "The rules of the game: Britain's counter-terrorism strategy"
(November 2005)

Alvaro Gil-Robles, "America's secret prisons: an interview" (November 2005)

In February 2003, Justice Collins decided that the home office was in breach of the fair-hearing requirement of Article 6 of the convention by refusing to allow foreign citizens seeking asylum in Britain to challenge the denial of welfare benefits. This provoked the then home secretary, David Blunkett, to say on the BBC: "Frankly, I am personally fed up with having to deal with a situation where parliament debates issues and the judges then overturn them".

The prime minister said later, in a radio broadcast about measures aimed at illegal immigrants: "if the measures don't work, then we will have to consider further measures, including fundamentally looking at the obligations we have under the (European) Convention on Human Rights." When asked to clarify his position he said: "there were no current plans to withdraw from our international obligations relating to asylum or the European human-rights convention."

Opposition politicians, including the then leader of the Conservative party Michael Howard, and David Davis, then shadow home secretary, have denounced the Human Rights Act and called for its repeal. Their case seems to be based not on any ideological opposition to the extension of judicial power but on the view that the Human Rights Act has encouraged mischievous litigation promoted by unscrupulous and greedy lawyers. The flood of such cases forecast by the tabloid newspapers when the Human Rights Act was introduced has never in fact materialised, largely because the existing law is already and has remained largely consistent with human-rights standards. Fortunately, Blair has not so far pursued his threat to amend the Human Rights Act.

The law's protection

The rhetoric of some British politicians has raised the spectre of conflict between the government and the judiciary. Naturally judges are concerned at the suggestion that the government might legislate to curb its independence or undermine its vital constitutional role. The lord chancellor, Lord Falconer, has tried to defuse the idea that ministers and judges are on a collision course; but he has also said that the government is contemplating legislation directing how the courts should interpret the Human Rights Act – in particular by requiring judges to take into account national security in determining whether to validate the proposed deportation of a foreign citizen to a country where he or she might be at risk of torture or inhuman or degrading treatment.

As the European Court of Human Rights has already made it clear that national security has no place in such a decision (in the case of Chahal v. United Kingdom, ECHR 1996), the suggested measure would necessarily violate our obligations under the convention and lead to a further legal challenge.

The desire to deport foreign citizens who incite violence or seek to promote terrorism is a defensible response to such conduct. Those who behave in that way threaten domestic security, especially where they are able to use authority gained from high status in a particular community to influence impressionable young people. But that cannot justify condemning them to torture when they can be dealt with lawfully by bringing them before the courts where, if convicted of a criminal offence, they can be properly punished. Paradoxically, if they are deported to a country which welcomes them, they may be able to continue exerting their malign influence and actually be more dangerous. So it is by no means obvious that the obligation to observe human-rights standards increases the risk to our security.

On 21 July 2005, when a second terrorist attack took place in London, the Association of Chief Police Officers issued a statement supporting some changes in counter-terrorist legislation. This was their contribution to the consultation process initiated by the government on the enactment of the Prevention of Terrorism Act in March 2005.

What was striking about this document was the moderation of its proposals, most of which were minor technical refinements of the existing law. The police chiefs recognised that the existing counter-terrorism legislation was both "sophisticated and robust". They also stressed that any changes must be measured and necessary and not viewed as a knee-jerk reaction to events. Their attitude to control orders was limited to support for "a form of scrutiny for individuals in order to disrupt terrorist activity without criminal proceedings."

The only proposal which appeared to challenge any human-rights constraints was a suggestion that the period of detention without charge for terrorist suspects be capable of extension for a period of up to three months on the authority of a judge in order to take account of the complexities and timescales surrounding forensic examination. This proposal might well conflict with the requirement in Article 5 of the ECHR that a person arrested on suspicion of crime must be brought to trial promptly or released on bail.

However, the European Court of Human Rights has explicitly recognised the difficulties inherent in investigating terrorist crime so it is by no means certain that a significant extension beyond fourteen days would violate human-rights standards. The police produced no clear evidence justifying such an extension. The effective investigation by the police into the bombings of 7 and 21 July does not support the view that the police are significantly hampered by any weaknesses in the law, whether resulting from the need to comply with human rights or otherwise. The government included the extension demanded by the police in its Terrorism Bill but it was rejected in parliament. A compromise extension to twenty-eight days was agreed.

The citizen's security

At least since the adoption of the United Nations charter and the Universal Declaration of Human Rights in 1948, it has been acknowledged throughout the international community that executive action must comply with human-rights standards. It is equally plain that compliance with those standards must be independently monitored and judicially interpreted. The duty of the judges in Britain to interpret the law is as much a part of our constitution as the role of parliament as the sovereign legislative body. Furthermore, the United Kingdom bound itself by treaty in 1950 to comply with the European Convention on Human Rights.

But the British system differs from other countries' in that treaty obligations are not part of domestic law unless enacted separately in parliamentary legislation; thus UK citizens could only enforce their rights under the EHRC by the laborious process of petitioning the European Court of Human Rights in Strasbourg – and they could only do this after having exhausted any possible remedies in domestic courts.

The primary purpose of the Human Rights Act (1998) was to shorten the process by enabling the same issues to be dealt with in the domestic courts – to "bring rights home" as the government's White Paper described it. Since the act came into force in 2000, British judges have been able to adjudicate on compliance with the ECHR, which previously only a European court could do.

The claim has been made that the judges' interpretive role is anti-democratic. This is surprising. The Human Rights Act is a statute of parliament with the democratic or majoritarian authority of any statute. The judges cannot repeal or nullify any statute so their role does not violate the sovereignty of parliament. Where the statutory provision is plainly incompatible with the Human Rights Act, the court cannot set it aside - it can merely make a "declaration of incompatibility." It is then for parliament to decide whether to change the law to comply with the court's view, as parliament did in the Prevention of Terrorism Act in March 2005 following the House of Lords' decision on indefinite detention of foreign citizens referred to above.

It has been suggested that English judges have exceeded their interpretive function by giving an excessively strained interpretation to statutory provisions to reconcile them with the Human Rights Act. Disagreement on matters of interpretation can never be ruled out. True, in 2002 Lord Steyn said that: "a declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If a clear limitation on convention rights is stated in terms, such an impossibility will arise."

However, Lord Bingham, the senior judge of the House of Lords, has warned that judicial interpretation must not become "judicial vandalism" by giving a statutory provision an effect quite different from that which parliament intended (see Lord Lester of Herne Hill QC, "The Human Rights Act 1998 – Five Years On", in European Human Rights Law Review, 2004/3). Furthermore, parliament has its own monitoring body, the Joint Committee on Human Rights, whose criticisms of the government have broadly coincided with those of the judiciary.

On 7 September 2005 the successor to David Blunkett as home secretary, Charles Clarke, addressed the European parliament. He spoke in terms which are more reassuring than some other ministerial pronouncements on the subject of human rights. In relation to terrorism and crime generally he stressed the importance of intelligence and information. Human-rights standards should not inhibit that degree of surveillance which is necessary for the purpose of tracking down criminals.

As Charles Clarke said, there is a balance to be struck. The European Convention on Human Rights itself provides for several of the rights which it guarantees to be subject to necessary limitations, including the right to freedom of expression. Clarke agrees that the citizen must be protected from unnecessary intrusion. The right not to be subjected to torture or inhuman or degrading treatment is, however, rightly an absolute one.

The notion that the Human Rights Act diminishes Britain's resistance to terrorism is a myth. No convincing case has been made for weakening internationally accepted standards. Unfortunately, mixed messages from the British government have raise fears that the great advances in the protection of human rights made over the last fifty years will be undermined. Government ministers should stand solidly behind the Human Rights Act of which they have every reason to be proud, and which is among their greatest achievements.

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