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Sunday, October 09, 2011

Reforming the Human Rights Act

Alex Carlile has a much more nuanced view on the Human Rights Act than the Home Secretary in this morning's Mail on Sunday that is worth a read.

He points out that the Treaty on which the Act is based came into effect on November 4, 1950. Its purpose then was to ensure that there would never again be the vile human rights excesses of Nazi Germany. He says that many aspects of life we take for granted today were unknown then. The world was a different place.

He acknowledges Teresa May's case that the Human Rights legislation is causing a problem, pointing out that there are more than 100 extremist terrorist offenders in custody in Britain, of whom some are shortly to be released, and probably another 60 who have been released since 2007. Most of the latter are now at large in the community:

The deportation of several of foreign nationality has been frustrated by a narrow interpretation of the ECHR by the European Court of Human Rights and by our own courts.

The question the courts must consider is whether there is a risk of persecution in the offender’s home country.

The reality is they are generally not likely to be persecuted, and there is evidence to that effect from Pakistan.

We in Britain are rightly opposed to any form of torture and will not send people away to be tortured elsewhere. However, the judicial test is set too low, against a ‘risk’ of torture.

The protection of our citizens, our national security, surely justifies deportation unless the court at the very least reasonably believes torture will actually take place.

I totally understand the Home Secretary’s frustrations with the ECHR and the Human Rights Act – especially in so far as they relate to the inability to deport foreigners suspected of intent to commit further terrorist crimes after their release. I believe the promiscuous use of Article 8 of the ECHR – which guarantees a right to family life – risks placing the whole concept of human rights into disrepute.

However, Alex argues that the suggestion by Teresa May that the Human Rights Act must be scrapped is unnecessary and too difficult a commitment to deliver. What is needed, he says is fundamental reform. He suggests that the Liberal Democrats must temper their instinctive opposition to anything that may affect the liberties of a few individuals and pay greater attention to the interests of the many:

Yet the ECHR, while protecting foreign terrorists, has failed to protect Gary McKinnon, the alleged computer hacker who lost his appeal against his extradition, despite the fact that if he goes to the US he will be forced by the inequalities of the American prosecution system to agree to a plea-bargain of a kind that British courts would find oppressive.

He suggests that the time has arrived for the ECHR to be brought into the 21st Century and made fit for another 60 years:

David Cameron should be leading the call at the Council of Europe for that modernisation. Part of the reform should be to increase what is referred to as the ‘margin of appreciation’ – which allows individual countries, while subject to the ECHR, a much greater degree of autonomy in interpreting their own national interest proportionately to the threats they face.

The independently, expertly set terrorism threat level in Britain is ‘substantial’. That means the threat of a terrorist attack remains a strong possibility. The threat levels in other countries may be less or more. Each should be allowed to graduate their deportation laws to their threat level, subject to proportionate protection against torture.

In addition, Mr Cameron and Nick Clegg’s decision to set up a commission to examine the creation of a British Bill of Rights is a sensible idea. I hope and trust that the commission will see it as its responsibility to produce such a bill. It should develop existing rights in today’s context, using the ‘margin of appreciation’ to the full.

Cameron and Clegg should make it clear nothing less will do than realigning rights towards a higher level of British autonomy.

It is the most coherent argument I have seen yet for a Bill of Rights because, unlike its Tory advocates, Lord Carlile does not want to scrap the Act and the Treaty altogether but make it work better.

If Teresa May had taken such a reasoned approach last week then catgate might have been avoided altogether and some sort of consensus could be put together under the leadership of her and other UK Government Ministers.
You don't need to amend the Human Rights Act to achieve those ends. A specific Act of Parliament empowering the Home Office to deport anyone would have the full force of UK law (see section 4 of the Human Rights Act) and the most that could happen would be exactly the same as if the whole HRA were repealled. That is that the UK government would get a handful of cases going to Strasbourg for which they'd have to pay compensation.

That said, I disagree that the threshold of risk is too low. The right not to be subjected to torture or inhuman or degrading treatment or punishment is an absolute one and we must not act in a way which puts people's lives at the mercy of those who would behave in such a manner. What you really seem to be challenging is how accurately that risk is measured. That is not a matter for the Council of Europe/ECHR or indeed for the Human Rights Act. What it might be is a matter for the Home Office in drawing up new guidelines as to what the evidence really says about the risk of harm brought about by deportation. This is *completely* within the power of the Home Secretary to change.

If anything the Human Rights Act need strengthened so that all Acts of Parliament must be compatible with them to have domestic force, but that's for another discussion entirely.
It should be noted that Graeme writes from Scotland which appears to be in a fuzzy triangular relationship with the ECHR and Westminster over human rights.
It's also worth reading Lord Carlile's speech in the Lords on 5th October.
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