the laws of immigration and asylum are themselves silent on the question of deporation to states where the deportee is likely to be tortured or subject to inhuman or degrading treatment. The laws on deportation are subject to the convention rights and so where there is a right that is not capable of being derogated from, the deportation can only be implemented if there is certainty or it is sufficiently clear that the person will not have his rights impinged. It is always up to the deportee to bring his case …

What is inhuman and degrading treatment? This is the subject of considerable legal debate – but you can go to the HUDOC website (http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en) and do a search and you will then be able to read how the ECHR itself decides what amounts to such treatment.

I have severe doubts that a court would conclude that a homosexual being called a ‘fag’ could amount to degrading treatment – but if that was followed up by systematic arrest, detention and beatings by the state servants, then I could see it becoming a problem. Obviously the balance has to be struck …

The difficulty with any case of deporting an ex-offender is that the offence itself is not really relevant to the question of whether deportation should be effected. On the whole the person is being released on some sort of licence (early release etc) and the punishment for the crime has been awarded and exercised subject to any control through parole etc. What is relevant for the person considering the deportation is that the person who is to be deported should not have non-derogable rights infringed – the court will only order the decision to be overturned if it is so unreasonable that no reasonable decision maker could make it (what lawyers refer to as Wednesbury unreasonable); if the decision maker has made a decision that is objectively irrational (irrationality); if the decision maker has made a decision that takes into account irrelevant matters and or facts (irrelevancy); or if the decision was beyond the powers that the decision maker had power to make (ultra vires).

It was a court in 1765 in the case of Entick v Carrington that decided that searches should not be carried out by Crown servants unless they have a warrant so to act – the principle that is taken from this case is that people are protected from arbitrary acts of the Crown where due process has not been followed. I have little doubt that the Attorney General of the day cursed the name of the Judge (Lord Camden) who was actually rather a well respected judge.

Similarly, the slave ship owners whose property was released after a case in Bristol that said that any man who seeks the King’s protection is entitled to it and cannot be said to be the property of another, were probably unhappy with this revolutionary position …

The evolution of what are described as the convention rights comes in large part from English (and, I say, Welsh ) jurisprudence. The right to a trial by your peers is thought to have existed in dark ages Britain … the right to an impartial judge can be traced to an act of Richard II. The list goes on to include the Magna Carta and many other acts that people mention from time to time. Even were we to withdraw from the ECHR, many of these rights already form part of what lawyers call the common law … and so, unless statute expressly overruls them, the courts would tend to enforce the rights anyway.

I could go on, but I think that is enough for now.

I am not sure why my belief is not well founded. The Rainford case seems to be a classic example of how the ECHR enables people to claim against ministerial decisions on the most spurious of arguments – Article 8: ‘respect for his private and family life.’

He was convicted of ‘wounding… violence to enter premises… using threatening, abusive and insulting words… destroying property… intent to supply Class A drugs… and possession of Class C drugs.’ And Article 8 clearly says that interference with private and family life is permissible on grounds of ‘public safety… prevention of disorder or crime, for the protection of health or morals.’ In what way is this not relevant.

I know the decision was challenged by the claimant, that is what I said in paragraph 2. But her decision was also challenged by the judge because he ordered her to reconsider. In what way is that not a challenge?

None of this implies that due procedure should not be followed, and, where law exists that ministers should abide by it. My last entry made this absolutely clear. But the original gripe is that the Human Rights law under ECHR ties the country up in knots and this case is a perfect example.

For my explanation of what I mean by democratic will of the people being supreme, please see my last entry. However, your mention of Magna Carta is a bit of a red herring. I am talking about ECHR induced human rights legislation. And ‘pre-existing order’ means precisely that. The order that existed before the ECHR came into force.

Evan,

Thank you for referring me to Burke. I agree with both him and you that democratic power, and the minister who exercises that power, must act in accordance with the law. To say that democracy should be supreme is not to say that it can ignore the law – maybe my choice of words could be better.

My point is that if we give our lives over to a system of law that is more technocratic than democratic, then we end up emasculating ourselves and our liberty. In the final analysis, the best way to ensure we remain free is to distribute power to lots of people, hence democracy. The best way to become less free is to concentrate power and decision making in the hands of the few, and that is where we are today.

And Human Rights law does just this. It hands too much decision making power to the judges and so diminishes our ability to govern ourselves as we would wish. To believe this and wish to repatriate power to the democratic process is not to usher in a tyranny of the people – and I was not aware that we had such a tyranny before the Human Rights edifice was created.

Could you refer me to the law about deportation?

All I have found is Article 3 of the ECHR that states that: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ It does not refer to deportation, and while it might be inferred that deportation would be in contravention if torture was going to happen, this is not really how it is used.

The ECHR is so imprecise that almost anything can be argued under its auspices, which is what happens in the UK. What exactly is ‘degrading treatment?’ To call a homosexual a ‘fag’ or something else is probably degrading, so does this mean that someone who claims to be homosexual cannot be deported to a country where they might be called names?

Maybe this is a silly argument, but it illustrates how inadequate the ECHR is as legislation, and it illustrates why it has caused so many problems in the UK (and no doubt other countries, too).

We do not wish to send people to certain torture – and we do not – but neither do we wish to give anyone a free hand in avoiding deportation on the most spurious of grounds.

You pray in aid the case of Garfield Anthony Rainford (judgement courtesy of BAILII) but say you don’t know the rights or wrongs of the case or what happened to him… How then did you arrive at the conclusion this case is symptomatic of the problem? You don’t appear to know anything substantive about it.

In Rainford, the Home Secretary’s deportation order was in fact challenged by the claimant (Rainford), not the judge. The judge found that the Home Secretary had failed to “consider a relevant factor” and therefore he quashed her decision to certify the order, noting that it did not mean the deportation order was revoked but that the Home Secretary had to make her decision properly, according to “settled law”. Where is the problem? Surely Home Secretaries should make decisions according to the rules and consider things properly?

You assert that “Human Rights law subverts the pre-existing order” – what pre-existing order? Some human rights law (e.g writs of habeas corpus, Magna Carta) precedes modern democracy by hundreds of years. The principle of the right to a fair trial, or to have one’s case heard by a neutral and informed decision-maker, goes back many more.

It is my view that the best way to preserve true liberty is for the democratic will of the people to be supreme.

Read John Stuart Mill, Alexis de Tocqueville etc. Mill for example:

The “people” who exercise the power, are not always the same people with those over whom it is exercised, and the “self-government” spoken of, is not the government of each by himself, but of each by all the rest. The will of the people, moreover, practically means, the will of the most numerous or the most active part of the people; the majority, or those who succeed in making themselves accepted as the majority; the people, consequently, may desire to oppress a part of their number; and precautions are as much needed against this, as against any other abuse of power. The limitation, therefore, of the power of government over individuals, loses none of its importance when the holders of power are regularly accountable to the community, that is, to the strongest party therein. This view of things, recommending itself equally to the intelligence of thinkers and to the inclination of those important classes in European society to whose real or supposed interests democracy is adverse, has had no difficulty in establishing itself; and in political speculations “the tyranny of the majority” is now generally included among the evils against which society requires to be on its guard.

We should not forget that our system outlawed torture as far back as when – the 17th century? I don’t have the exact date to hand.

May I suggest that you read the letters of Edmund Burke to the electors of Bristol, or his pamphlets on the revolution in Frances – what you will find, if you forgive my paraphrasing his arguments, is that he considered that the tyranny of the masses to be equally to be condemnded as the tyranny of a supreme King.

My view is that liberty would not be protected by the sole assertion of democratic will, but by a combination of the rule of law that binds everyone and a respresentative and democratic system that is capable of holding government to account and all in addition to a fair minded and competent government. The discussions of Montesquieu, whilst mistaken in some respects, and the subsequent works of Dicey and others, in describing the freedom enjoyed by the people in the UK (as it became) are also instructive.

The law of the UK is that a person, even a person having served their sentence for hideous crimes and who is liable to deportation on having served their sentence, is protected from that deportation if there is a serious risk that they may be tortured or otherwise subjected to extra-judicial punishment in the event of their return to their country of origin. Difficult cases make for very difficult decisions – but do you really think that it is OK for us to deport someone only for them to be abused on arrival or shortly thereafter – where they have served their sentence here? What status compassion and rehabilitation in these circumstances? Yes, we have to find ways to ensure that they do not repeat their offences – and that will involve considerable reform of our current rehabilitation regime – and may involve considerable reform of post sentence monitoring for certain offenders – but can we really call ourselves civilised if we send them to certain or near certain or even a significant risk of torture or death?

A society is judged on the manner it treats the weakest of its members. Freedom, and the rights associated with it, are there to protect all of us from an over-mighty state, as well as from the abuse of others – and if we allow ourselves to pick on certain people, even those whose views or actions we rightly abhor, and impose different standards on them before or after conviction, what then for the rule of law?

You ask for some examples where human rights subvert pre-existing political and legal rights of a country to act against people who otherwise act illegally. I am not a lawyer and do not compile lists of such cases, but here is one example:

The Leicester Mercury tells us in October last year that Garfield Anthony Rainford, a Jamaican with a ‘string of convictions for crimes including wounding and drug dealing,’ challenged his deportation under human Rights legislation.

We are also told that ‘Mr Justice Silber, sitting at London’s High Court, yesterday backed Rainford in his fight to stay in Britain and ordered the Home Secretary to reconsider.’

Whatever the rights or wrongs of this particular case, and I have no idea what happened to Rainford, this is a perfect illustration of how our democratically elected Home Secretary can be challenged by an unelected Judge. I am perfectly aware that all politicians must act according to the law, and no doubt the Judge has the law on his side in this instance, but this is the point. Human Rights law subverts the pre-existing order.

As for the MoUs, they certainly help and it might be that this is the best way to go. Would we not prefer to be safe than sorry? But none of this alters the fact that deportations are pitifully slow and ineffective and the root cause is Human Rights rules.

It is clear to me that if the people were asked, they would want far more deportations, but we have built a system that does not allow democratic decisions to be taken. There is a conflict going on in this country between democracy and the law. That they need to be balanced is, of course, essential, but the balance has shifted far too far away from democracy.

Repeal all the Human Rights agreements and laws, and let the people decide through the ballot box. It is my view that the best way to preserve true liberty is for the democratic will of the people to be supreme. That is not where we are today, and Human Rights legislation is partly to blame.

However, what I was trying to say is that Human Rights as they are currently managed are used to subvert the pre-existing political and legal rights of a country to act against people who otherwise act illegally.

Please provide some examples, because a lot of people think this but turn out to be wrong. Not attacking you – just suggesting that your belief might be unjustified absent any evidence to the contrary.

In relation to undesirables we want to deport but can’t (lawfully, anyway), this is generally due to the European Convention on Human Rights, specifically Article 3, the absolute prohibition of torture, which has been interpreted to mean that we can’t deport people to countries where they face a real risk of torture. There have been developments in terms of Memorandums of Understanding, or diplomatic assurances, that say “we will not torture this guy etc..” and people have been deported to those countries. On the other hand, where the court finds that a real risk of torture remains, or the MoU is inadequate for these purposes, the person won’t be deported. I don’t have a problem with that.

You ask: ‘I’d be grateful if you could expand on it being “a charter for those who wish to flout the law’.

This, of course, is a catch 22. The HRA is law in this country, therefore any decisions made by the judicial system in accordance with this Act are by definition in accordance with the law.

However, what I was trying to say is that Human Rights as they are currently managed are used to subvert the pre-existing political and legal rights of a country to act against people who otherwise act illegally.

We have genuine subversives in this country who are actively seeking to bring our system down. I know ‘subversion’ itself is not a legal term, but our ability to deport them to their country of origin – even when they have been found guilty of associated offences – is all too often prevented by a human rights claim against this or that.

When the average person – I include myself in this category – sees the country’s legal rights subverted by the rights of foreigners, often on spurious grounds, it only brings the principle of human rights into disrepute. Most of us want to treat all people with compassion and respect, but when the people seen a legal system that imposes decisions on them that appear to be irrational and emasculating, they get upset. And when they get upset, they start voting for parties like the BNP. This is something about which we should all have a concern.

It is a bit rich for the left and Labour supporters to criticise the Tories on rights. Labour introduced the HRA, sure, but spent the next ten years undermining it, and attacking our rights – in particular Jack Straw has no apparent sense of irony..

Arthur,

The problem with the whole edifice is that it is: first, a charter for those who wish to flout the law; and second, a way to subvert democracy in those very same countries that stood up to the inhuman regimes that perpetrated the Second World War.

I’d be grateful if you could expand on it being “a charter for those who wish to flout the law”..

Human Rights legislation was developed in response to the horrors of Nazi Germany, in a bid to make the mass industrialised slaughter of human beings less likely. It was not designed to prevent criminals, subversives, terrorists and illegal immigrants from being dealt with effectively by civilised countries – yes, like Britain.

The problem with the whole edifice is that it is: first, a charter for those who wish to flout the law; and second, a way to subvert democracy in those very same countries that stood up to the inhuman regimes that perpetrated the Second World War.

It is offensive for people to imply, as is clear in the subtext of those who criticise those who want nothing to do with the current Human Rights edifice, that Britain will somehow start persecuting people at will if it withdraws from the current Human Rights system.

Thanks for several

“The position adopted by the Conservative party which is considerably more nuanced and informed that the critics here would permit. It is not the kneejerk reaction of reactionaries, it is a considered view of lawyers who wish to defend the freedoms of individuals against an overpowering state”.

I think a central premise of your challenge to the premise is flawed. You present this as a technocratic concern for better law, and I am sure some have that motivation, but it doesn’t reflect the history of this policy is that it was a political, very vague, and largely rhetorical, policy adopted in response to loud media pressure back in 2004, and included in the 2005 manifesto. David Davis insisted there were now “too many spurious rights” and that “Some, if not all, of these consequences would be disapproved of by most UK citizens,”
http://www.guardian.co.uk/politics/2004/aug/23/conservatives.uk

Once the Conservative frontbench had announced the policy, there were lawyers involved, and a commission announced to think about what the pledge would mean. The policy was repeated in 2006 under the new leadership.

With Dominic Grieve involved, it looks more and more like a non-policy.

But it is and has been a contested issue within the party …. and I suspect there will be further pressure to provide two or three media eye-catching examples of something that will change, as the charge that it is pointless.

It might assist the House if I were to explain some of the background to the Bill. I want to do this because there is sometimes a perception that issues such as these are merely lawyers’ arguments, and that they have no relevance to the everyday lives of people in this country. I hope, however, that this debate we will help us to see that the Human Rights Act 1998, for all that it is misrepresented and criticised, is a vital piece of legislation. The issue that my hon. Friend raises through the Bill goes to the heart of it.

The European convention on human rights was agreed in the aftermath of the second world war. It drew its inspiration from the universal declaration of human rights proclaimed by the General Assembly of the United Nations in 1948. The rights protected by the convention
3 July 2009 : Column 661
have a long British pedigree, rooted in the Magna Carta, the Habeas Corpus Act of 1679 and the Bill of Rights of 1689. Those rights form an essential part of our constitution and have been part of our common law for many centuries.

Sir Edward Gardner, QC, a senior Conservative MP who first called for the incorporation of the convention in 1987, said that the language of the convention

“is language which echoes down the corridors of history. It goes deep into our history and as far back as the Magna Carta.”

The convention was in large part, of course, the work of British jurists—not least of Sir David Maxwell Fyfe who later as Lord Kilmuir became Lord Chancellor—so while the convention may be European by name, it is very much British by heritage. In some respects, given that history, one wonders why the Conservatives are so keen to unpick so much of what is in the Human Rights Act.

The United Kingdom was one of the first countries to sign the convention in 1950 and to ratify it the following year. In 1966, we accepted the right of individual petition to Strasbourg. Then, of course, a person seeking to claim that their rights had been breached by a party to the convention applied to the European Commission on Human Rights. Since the 11h protocol to the convention came into force in November 1998, individuals have been able to apply directly to the European Court of Human Rights.

In spite of having been so instrumental in the convention’s development, it sadly took another 50 years before we incorporated it into our domestic law. Until 2000, UK citizens had to join the back of a very long queue if they wanted to access their rights at the European Court of Human Rights in Strasbourg. I am very proud, as I am sure is my hon. Friend the Member for Hendon, to be part of the Government who introduced the Human Rights Act in 1998. By putting that Act on the statute book, we in a sense brought rights home, making it possible for the first time for people who felt that their rights had been breached to take action in our domestic courts. Those rights—the convention rights—were drawn directly from the rights under the European convention itself.

There are those who have taken to using the term “human rights” in a disparaging way, so let me remind the House of the sort of rights that we are talking about. We are talking about the right to life, the right to freedom from torture or inhuman or degrading treatment, the right to freedom from slavery—

Mr. Deputy Speaker (Sir Michael Lord): Order. I am reluctant to interrupt the Minister, but I remind her that we are debating a Bill that is intended to clarify the meaning of “public authority” in section 6 of the Human Rights Act 1998. At the moment, however, she is talking about generalities, whereas the Bill is rather more specific than that.

Bridget Prentice: Thank you, Mr. Deputy Speaker. I was, I hope, trying to set this particular Bill in the context of the Human Rights Act, although of course I accept your point.

link

(despite the question being publicly available on the Parliament website and elsewhere)

Agree about bandwagons and legal privilege. But I don’t think Carter-Ruck helped itself or its client on this – to say the least. Private Eye’s account seems a reasonable account to me (keeping in mind its opinion of Carter-*uck).

Of course, the people I alluded to who (certain sections of) the press doesn’t seem to want to protect are people suspected of involvement in crime, prisoners, immigrants, asylum seekers etc.

With regard to Nilsen, sure, that seems a reasonable criticism – of his lawyers. But I’m genuinely concerned that no matter what’s in the Bill the Tories (or anyone else) eventually produces, if it protects our rights and freedoms – everyone’s rights and freedoms – we will continue to see attacks on it, distortions, fabrications and lies. Surely that issue must be addressed too.

As to the Nilsen case, yes, I was referring to it. The relationship between the changes to legal funding and the HRA means that cases are being brought in ways that previous generations of lawyers would have baulked at – that the case was brought at all was testament to a failure, in my view, of lawyers to take a sensible look at the proposed claim – and yes, it failed at the permission stage.

A further problem is the effect of the costs of litigation on parties susceptible to HRA challenge. They tend to become more cautioous in their conduct and behavious and less careful to make proper assessments of stupid claims looking merely at their potential exposure and taking the course of least resistence.

On your latter point about people who the press doesn’t want to protect – the Trafigura report that caused a fuss was a legally professionally privileged document. It was this privilege that was to be protected by the injunction that the Guardian initially agreed to be subject to – only then it appears that they manufactured a question in Parliament (which probably amounts to contempt itself) from a friendly ex-journalist in order to precipitate the furore about the court’s alleged attempt to control proceedings in Parliament – that the blogosphere then jumped on the bandwagon failing to understand that the competing privileges were in the balance and that the whole argument was about protecting legally professionally privileged documents for a company and or its agents/subsidiaries whose conduct appears to have been unpleasant at best rather goes to show that the press is not keen to protect anyone they don’t approve on (and care less about their legal rights than their alleged right to publish what they want).

But as for the rest of your post I’m getting a bit confused about where you’re coming from.

but there are real cases with criminals making real applications to do things that objectively most people will believe they have forfeited the right to be able to do – access to pornography to cite one example.

Assuming your example refers Nilsen, who failed in his attempt… are you suggesting that he should have been stopped before he could even apply?*

That these cases are made at all is worrying – that they are distorted by the press is also very worrying because it reduces the esteem that the law should be held in and if often based on the worst sort of prejudice and an inaccurate and or inadequate reporting of the facts.

Your point about the distortions is very true and I certainly wish I could think of some mechanism that would be deter them from doing it, particularly if it is plainly fabricated – we will face this issue with any legislation that protects the freedoms and rights of those the press doesn’t mind attacking.

(* the best piece on what really happened and how it was distorted that I’ve seen happens to be in a book recently published online – by some Tories no less. Starts on page 45 and is one case study of a number about this topic.)

I accept entirely that there are many myths – and if you’ve seen my writing on this topic you will note that I try to do my best to dispell the myths – but there are real cases with criminals making real applications to do things that objectively most people will believe they have forfeited the right to be able to do – access to pornography to cite one example. That these cases are made at all is worrying – that they are distorted by the press is also very worrying because it reduces the esteem that the law should be held in and if often based on the worst sort of prejudice and an inaccurate and or inadequate reporting of the facts.

My problem with the original post stands – that it represents a gross distortion of the position adopted by the Conservative party which is considerably more nuanced and informed that the critics here would permit. It is not the kneejerk reaction of reactionaries, it is a considered view of lawyers who wish to defend the freedoms of individuals against an overpowering state.

I agree that the temtpation of any Government is to avoid limitations on its power – we have a tradition dating back centuries of judges reaching inconvenient decisions for the Governments of the day – releasing ‘slaves’ in Bristol, preventing arbitrary acts by agents of the Government are some examples.

What appalls me about the essential illiteracy of the current Government’s position is that it ignores the evolution of those rights, the development of freedom that continues (and even takes into account the HRA and other such legislation) and seeks not to place its reforms into the context of a developing idea of freedom, rather it seeks to impose a sort of definition on it – if you like it looks at freedom from the wrong end of the telescope – where I see someone as being essentially free to do anything that is not expressly and clearly prohibited, it sees the person being free only to do anything within a defined set of rights. That is, for me, alien to the common law … and so alien to our jurisprudence.

@27, Isn’t it the case that one of the major complaints from ‘the public’ (or rather, perhaps, certain sections of the press and MPs) about the HRA is that we are prohibited from deporting such people?

Furthermore, that complaints about the HRA mainly relate to stories about it that have no basis in fact (e.g. criminals on roofs getting free KFC etc)? I’ll be honest, I’m struggling to think of any complaints about the HRA from this angle that are legitimate.

So I don’t see what the Tories can do that will make a practical difference – although it may make a ‘visual’ difference. I will have a look through those docs though – I wasn’t aware of those.

@ 28, I happen to agree with you on both counts and I’ve criticised the HRA for lots of things including being a fig-leaf – basically Labour can say, “look, we’re actually champions of human rights, after all we introduced the HRA and got it on the statute book”…. and they have.

(A similar story with freedom of information.)

With regard to “replacing them with something more workable is probably sensible” – sure, but I don’t see any Government limiting its power like that, unless it giveth with one hand and taketh away with the other.

(I’m a fan of the Conservatives when they champion the fundamental rights that Labour has repeatedly trampled on – e.g. right to a fair trial – and make it clear that they are for everyone, ‘even’ people suspected of involvement in crime and terrorism.)

But, when one considers the way in which established and workable rules relating to extradition, relating to the treatment of people accused of serious crimes are treated (including those accused of crimes that are covered by the Terrorism Act), and even the way in which the Government reacts to judicial decisions that criticse particular decisions that they have made, for example in the manner in which DNA evidence from innocent people is dealt with, it is clear that the HRA is not effective in constraining the powers the Government wants – even where inidividual ministers assert that the powers are, in their view, compliant with the Convention in the certificate that they sign.

A general problem with laws are that they are effective in so far as they command the general consent of the people to whom they are addressed. Where laws themselves fall in disrepute – and there are many examples which predate this Governmetn as well as those passed by this Government – then it is the obligation of legislators to consider how to improve on them – and replacing them with something more workable is probably sensible.

It might also be observed (my actual liberal tendencies coming through here) that although we live under the HRA, it hardly stops constant government encroachment on what rights we are supposed to possess.

True.

If the act does not really constrain the government (in that they were never planning to torture or execute out of hand, and they are extending power over property and person without trial) who is it defending our rights from? I contend that in this particularly important sense the HRA is in fact useless, so we might as well have a better attempt to codify what is required by the ECHR.

I think that’s called begging the question – you’ve provided no evidence the act does not constrain the government. It might not constrain the government as much as I’d like, but that is another matter – and not sufficient support for it’s repeal but rather for building on it / improving it.