9th August 2005
The Human Rights Act—one of New Labour's great constitutional innovations—is a welcome check on the "democratic absolutism" of British governments. By entrenching the European convention on human rights in our law, it requires public bodies—schools, prisons, government departments and so on—to uphold basic human rights, such as privacy or the right to a fair trial. This constrains crude majoritarianism, but the act is also designed to preserve most aspects of parliamentary sovereignty. A judge can declare an existing law incompatible with the Human Rights Act (HRA), and it is then left to parliament to change the law; but if parliament decides not to it may find itself before the European court of human rights in Strasbourg.
So the principle is sound enough. But as the government now seeks to combat religious extremism and terrorism with new laws, two aspects of the act—and indeed the wider human rights movement—give me cause for concern. The first is the transnational character of the act. The HRA requires public authorities to respect the human rights of all individuals in Britain, whether British citizens, those temporarily here or even those illegally here. For this reason, the government may find it difficult to deport foreign clerics even if they incite terrorism. (It has been unable, for example, to return to Afghanistan those involved in the dramatic hijacking of a plane to Stansted in 2000.)
This requirement to give non-citizens many of the legal protections of citizens in today's conditions of global migration and cross-national terrorism is untenable. Furthermore, it seems to be connected to a wider fallacy about the origin and nature of rights. People are not born with rights, and, regrettably, many of the world's 6bn people have few or none. Rights are a social construct, a product of history, of ideas and of institutions. You and I have rights not as human beings, but mainly because we belong to the political and national community called the United Kingdom, with its infrastructure of laws and institutions.
We would both like the rights commonly enjoyed by people in developed countries extended to the rest of the world too. And the west sometimes tries to project its idea of rights through force (as in Kosovo, or, more problematically, Iraq) or through legal extraterritoriality. For example, article 3 of the European convention states that no one shall be subject to torture or degrading treatment. Judges have interpreted this in such a way as to stop states that are party to the convention from deporting people to countries where they may be subject to such treatment (including America, because of its use of the death penalty).
Our ability to extend our rights to the non-citizens who come within our jurisdiction, as in the case of successful asylum applicants, is laudable. But this ability should be exercised as a political choice, and we should be free not to extend those rights, especially when doing so may conflict with the rights and well-being of existing British citizens.
In the case of most entitlements, such as welfare rights, we accept that eligibility is linked to membership of a political/national community in which there are reciprocal demands to perform certain duties, to pay taxes, and so on. The HRA undermines that notion of reciprocity when it comes to legal rights. This is not accidental. The ideology of human rights is universalist—it says all humans have rights regardless of membership or reciprocity.
Normally this confusion of an aspiration with a reality is harmless enough. But when, through its codification in the HRA, the confusion makes it harder for an open society like Britain (with its 90m arrivals a year) to deport or detain non-citizens who are a potential threat, it undermines the confidence people have in the state to protect them.
Much of the threat from Islamist extremism is, of course, home-grown. But few observers doubt that we have also attracted many Islamist militants to "Londonistan," some of them incubating terror. Both government and the courts bear responsibility for that. But now the government has decided, strongly backed by public opinion, to become more interventionist, and the judges should not stand in its path unless it acts in an obviously unreasonable or disproportionate way.
This brings me to the second problem with the HRA, which is the judicial activism that it fosters. There are many things that we would prefer judges to adjudicate on over ministers, but making a judgement about our collective security is not one of them. Last year, the House of Lords ruled that it was contrary to the HRA to detain without trial at Belmarsh nine non-citizens suspected of involvement in terrorism but who could not be deported because of the inhuman treatment they might face. The government complied with the ruling and placed the men under "control orders" instead. It also made various concessions when introducing subsequent legislation to ensure that it was acting within the HRA.
In response, Lord Hoffmann famously said that the real threat to the nation was not terrorism but the actions of a government that invoked the threat of terrorism to restrict liberty. Should judges be evaluating the balance between individual liberty and collective security in such strident terms? The laws that the court was railing against had been passed by a non-corrupt legislature that has to renew its mandate from the people at least every five years and is subject to constant media scrutiny.
Judges, by contrast, are neither accountable (they are appointed for life) nor representative (the law lords consist of 11 elderly men and one woman). In any case, a court is not an ideal setting for deciding the weight of a collective interest, such as security. Judges are practised in declaring the law and adjudicating disputes between parties, not in considering issues that affect society as a whole. They don't have the benefit of intelligence reports, they don't hear the views of different social groups; indeed, the case for the collective interest is made before them solely by the government, which appears as an ordinary party in a court case.
Nevertheless, British judges are becoming worryingly politicised. If the government starts to screen foreign imams more closely and deports some who are seen as a threat, how will the judges respond? We should expect few judicial inhibitions in the difficult cases that the government's latest plans are likely to throw up.
Yours truly,
David Goodhart
Dear David
10th August 2005
Our positions are both rather close and quite far apart. You are right to say that we are mainly dependent on the nation state for the enforcement of our human rights; it does not follow that the nation state is the source of our rights. We have a core set of rights just because we are human.
You worry about the HRA's failure to distinguish between citizens and non-citizens. But distinctions of citizenship and residence are mainly relevant to civil or welfare rights. It is surely wrong that it should be a matter of "political choice," to use your words, to whom rights apply when the going gets tough.
Look at the US for the dangers of zealously applying this distinction between citizen and non-citizen. Internally, its respect for rights is second to none (a challenge is currently being mounted, for example, against random searches of bags carried on the New York subway). On the other hand, its government has invented a new category of outlaw, the "enemy combatant," and proceeds to abuse his human rights abroad in a way that its courts would not tolerate within its own territory. That is both an abuse of human rights and counterproductive as a policy.
You mention the reputation of "Londonistan" and hope that the judges will not stand in the way of a new resolve to close it down. This is not really a human rights issue. Incitement to terrorism overseas is already an offence under the Terrorism Act 2000. Incitement to violence is a well-established criminal offence. It is sometimes said that the British authorities allowed a deal: you can plot openly against foreigners in London but we are listening to everything you say and may act on it. I have no idea if that was true. I am sure that the situation changed after 9/11, but that is a question of police tactics, not human rights.
The home secretary can, of course, find the presence of a non-citizen in the UK not conducive to the "public good." But the first response to someone who commits an offence here should be prosecution here. We should not simply export criminals, especially not to places where their human rights will be infringed. Even this government accepts that point in principle. Its current response is to negotiate deals with governments that have suspect records on the use of torture. The prime minister seems to be saying that the courts must take such an assurance at face value. It is proper that the judiciary should make a more objective decision.
You fear "judicial activism," but concede the dangers of majoritarianism. It is routine to observe that our prime minister has more power than the US president. The reason, in part, is our elision of executive and legislature. Both parliament and the judiciary need more power to protect constitutional values.
Take an apposite case. The Prevention of Terrorism Act 2005 was rammed through parliament in 18 days earlier this year. Its Commons stage closed without MPs seeing amendments promised by the government. The resulting legislation is a mess. In such circumstances, we need a judiciary which, if not activist, is certainly alert.
The great virtue of the HRA is that it establishes a set of civilised values and lays down a process for dealing with conflicts between them. The values themselves are uncontroversial. The judiciary is there to insist that the process required by the European convention is followed. The House of Lords judgement in relation to the detention of non-citizens in Belmarsh effectively asks whether the government has posed the right questions. Was there a state of emergency? All but one judge said yes. Was the response discriminatory, in that British citizens could not have been treated in this way? Blatantly. Was that a proportionate response to the causes of the emergency? No.
In ruling thus, the judiciary was building upon the long-established tradition of judicial review. Since the 1970s, the courts have increasingly been prepared to consider whether decisions of public authorities were properly made. As a result, judges have clearly improved public administration in Britain. Judicial review and now the HRA are requiring public authorities to reveal the reasoning behind their decisions. The House of Lords decision that declared that the detention without trial of the nine non-citizens was contrary to the HRA is likely to prove wiser than the legislation which allowed the detention in the first place—part four of the Anti-Terrorism, Crime and Security Act 2001. That act introduced special measures for foreigners when the threat was manifestly from both home and abroad. Successive reviews by the home office and others had all acknowledged the act's deficiencies. Democratic values can be expressed by both the executive and the judiciary. I think the House of Lords got it right.
You quote Lord Hoffmann on the relative threat of terrorism and the government's response. That was a piece of unwise rhetoric that clouds the picture. The important point is that there is no necessary zero-sum trade-off between security and the rights framework laid down by the European convention, even at times of threat to our national security.
Regards
Roger
Dear Roger
12th August 2005
You simply assert that human rights are universal and unconditional, unlike civil and welfare rights, which have roots in a national or social contract. But I don't think human rights are so easily removed from political and contractual considerations. You believe that anyone anywhere in the world who has a reasonable fear of torture or abuse, and who can get themselves into British judicial space, can impose on us the obligation of protecting and sustaining them. Most of the time that is uncontroversial, whether we are talking about Jews fleeing Nazi Germany, or Soviet dissidents or most of today's legitimate asylum seekers. But should we really have no discretion about extending our protection to jihadists who hate us and may attempt to harm us, or people who have themselves been involved in human rights abuses? Ultimately, in a democracy asserted rights can only be sustained if a critical mass of the population accepts the corresponding obligations. We should extend the right to outsiders because of our sympathy and solidarity with them, not because a judge tells us we have to.
You are actually less absolutist about rights than you appear. You would presumably accept the hypothetical point that if a kidnapper is about to shoot ten hostages it is legitimate to shoot the kidnapper. Indeed, the HRA allows individual rights to be balanced against collective interests such as national security. So you then fall back on the pragmatic argument that there is, in fact, no trade-off between security and liberty, or that restricting the rights of non-citizens is politically counterproductive.
But that is an operational claim. I agree that this is an operational debate that should take place within the framework of the HRA and with impartial judges acting as a brake on political enthusiasm, ensuring that politicians stay within the bounds of proportionality. But it is democratic politicians who should be decisive in this debate because they have superior knowledge and legitimacy and are responsible for the consequences.
You say that, "The first response to someone who commits an offence here should be prosecution here," and you stress that incitement is already an offence. But this does not grapple with the real difficulty, which is this: suppose we have enough information about someone to be convinced they are a threat but not enough to prosecute. If they are a British citizen we would have to accept that as the price for having a high standard of proof, but if they are a visitor—with a revocable claim to be here—we should be able to revoke that claim.
If that means sending people back to face possible ill-treatment, then that should be a factor in the decision, after weighing up how serious a threat they are to British citizens and so on. Moreover, if the government can negotiate properly monitored memoranda of understanding on the treatment of deportees with countries like Jordan and Algeria, then that should surely be welcomed as an extraterritorial extension of western rights, not sniffily rejected by judges and human rights NGOs.
The point is that special circumstances may require special judicial procedures, such as special courts able to consider phone-tap evidence and intelligence reports. The view of Lord Hoffmann that this is a slippery slope to despotism is not borne out by recent history. Whatever one thinks of the special measures once used to combat Irish terrorism, they did not undermine civil liberties in mainland Britain and have now largely been revoked.
Yours
David
Dear David
14th August 2005
I concede that my position requires us to incur the expense and trouble of hosting some foreigners who might not respect our hospitality. And it is important that the British public understands why that is necessary.
A crucial issue relates to the very nature of rights. These are of different kinds—some absolute, some qualified. The right to life is, for example, inherently balanced. The European convention states that it is acceptable to kill someone in order to protect another person—provided force is used which "is no more than absolutely necessary." By contrast, the convention prohibits torture and ill-treatment, absolutely. Working out how such a prohibition might work in particular circumstances can be, as you argue, an "operational" matter.
You make two points. First, we might, in fact, advance human rights by making non-torture agreements with states where torture is now endemic. I can see the attraction of this. We could then convince ourselves that it might even be desirable to send people back with sufficient conditions and external monitoring. But is this not too convenient? The UN committee against torture criticised Sweden's return of Ahmed Agiza to Egypt in 2001. It appears he was tortured despite an agreement not to do so and regular monitoring by Swedish diplomats. The minimum requirement is that such deals come under judicial scrutiny.
Secondly, you suggest we might insert some consideration of national security into the exercise of this right not to be tortured. This appears to be the government's intention. The immediate problem is that we cannot unilaterally redefine a commitment in an international document ratified by 45 other countries. It is said that France gets away with sending people back to Algeria, so why can't we? Well, not everyone agrees that France is acting lawfully.
The key principle that makes rights come alive is proportionality. A government which is seeking to restrict a right must do so to the minimum extent possible, for specified reasons, and in a way which is proportionate. The government cannot in any circumstances exclude itself from prohibitions on torture but it can limit the right to liberty. Internment without trial can be introduced, as it was in Northern Ireland. To do so, Britain needs to derogate from the appropriate provision in the European convention on the grounds that there is a state of emergency. Derogations can be legally challenged, but judges will generally back a minister's judgement on this question. They will, however, be strong on assessing the proportionality of particular measures—such as extending beyond 14 days the time that someone can be held in custody on suspicion of terrorism without being charged. There are bound to be rough edges to this kind of balance, but it should usually work.
Ministers are under great pressure to come up with initiatives to respond to terrorism. That is understandable. But the record of legislation drawn up under such circumstances is poor, and such spasms rarely deliver the promised security benefits. Moreover, playing the political hardman is popular with some groups but not others, and may make it more difficult for the police and security services to build links with Muslim communities. Adherence to the European convention constrains the political response and imposes a requirement of proportionality. How is that a problem?
Regards
Roger
Dear Roger
15th August 2005
I have no trouble with hosting a few foreigners "who might not respect our hospitality." What I do have trouble with is hosting such foreigners who are an actual threat to our own citizens. Incidentally, the fact that on one hand you can envisage circumstances in which killing someone who is an imminent threat to others would be acceptable, but on the other cannot envisage repatriating someone to a country where they might be ill-treated, seems rather bizarre.
There is a lot of sneering about how the government cannot have it both ways on human rights—passing the HRA and then wanting to side-step it when it is inconvenient. But the obstacle to many of the actions that the government wants to take is not the HRA but Britain's judicial culture. The French judiciary allows a far more draconian stance, especially towards non-citizens, despite being subject to the same European convention. I wonder whether one reason for this is France's more robust conception of democratic citizenship, which gives judges a greater confidence in prioritising the rights of French citizens over non-citizens when they conflict. Allowing the settled view of democratic politicians and public opinion to have some influence over the judicial process is not the first step to mob rule, as some of our legal mandarins imply. Indeed, it may be a condition of retaining public confidence in the system.
It is the mark of a civilised society to offer sanctuary even to some unattractive outsiders and to hold on to proportionality and due process even in difficult times. But listening to human rights activists, one sometimes gets the impression that they believe the liberal nation state is the greatest threat to liberty, rather than, in fact, its main protector.
Yours
David
Dear David
15th August 2005
It is entirely right that torture is always wrong and that killing is sometimes right. A death can be the lesser of two evils: torture cannot.
You commend the example of France. But remember that the endemic use of torture in Algeria dates back to its use by the French military in a very dirty war of independence. And the lack of an adversarial legal culture means that government decisions are not challenged in the same way as in Britain.
Some of the government's difficulties with the 2001 Terrorism Act arose precisely because it accepted that we should not deport Algerians to Algeria. I commend that. These are difficult judgements, but it is clear that the HRA offers adequate policy options through which national security can be preserved.
The nation state is, of course, the main protector of both our security and our liberty. I, therefore, take your point about the need for the support of the public and politicians for the current human rights framework. Such a framework works best when it is seen to empower people. And if people can appreciate the benefits that they enjoy from such a system, they are more likely to worry if those benefits are suspended or withdrawn.
Regards
Roger
