Last week I attended the 2018 Bristol Law Conference, organised by University of Bristol students. The theme ‘The Age of Terror’ instinctually makes me cringe slightly, but the speakers tempted me to attend.
This post concentrates on ideas around the principle of proportionality and human rights shared by Dr Cian Murphy and Baroness Shami Chakrabarti.
Dr Cian Murphy started with a bit of poetry and perspective about how numerically small the numbers of terrorism-related deaths in the UK are in contrast to road traffic collisions, for example.
He asked two questions:
- What level of risk are we willing to accept, personally as individuals, and politically as a collective society?
- What do we expect from our leaders and why?
I’m not sure what level of interference I believe is legitimate in the name of preventing terrorism. I am certainly not in the ‘if you have nothing to hide you have nothing to fear’ camp. The second question struck a chord as something we should all be asking ourselves more regularly (looking at you tabloid press).
The talk then delved deeper into law, outlining the three requirements of good law.
Put simply, good law must be have a legal base that is lawful – while striking an acceptable (proportinate) balance between interference with rights on the one hand, and legitimate aims on the other.
The example of the proportionality principle in action shared by Cian may cause Brexit Remainers to face palm. The Data Retention and Investigatory Powers Act (Dripa) 2014 was successfully challenged as ‘inconsistent with EU law‘ due to failing the proportionality test after being assessed as providing inadequate safeguards. The challenge was brought by Tom Watson MP and David Davis MP. Specifically,
“They said the legislation was incompatible with article eight of the European convention on human rights, the right to respect for private and family life, and articles seven and eight of the EU charter of fundamental rights, respect for private and family life and protection of personal data” (Source)
Yes, that’s right, David Davis MP the Secretary of State for Exiting the European Union used the EU charter to fight his case. The EU charter that he recently voted against retaining when we leave the EU. Just let that sink in a moment.
Subsequent legislation colloquially known by the Snoopers Charter, but officially the Investigatory Powers Act 2016 is now under challenge courtesy of Liberty. This may yet be found unlawful. Watch the video below to begin to understand why. The High Court will hear the case in March 2018.
Baroness Shami Chakrabarti concentrated on similar issues to Dr Cian Murphy, which is probably unsurprising considering she was previously director of Liberty and has written a book I very much would like to read ‘On Liberty’ (apologies to any readers not based near me in Weston-super-Mare. The link is to our library service where it can be reserved for free from any South West library. Support your local library!).
Shami expressed her concern that the virtue signalling of contemporary democratic leaders, rather than practical policy responses, result in increasingly normalised exceptionalism that looks back at the statute book for blurred lines to use in the copying and pasting of legislation.
One example given was the attempt to ‘copy and paste’ immigration policy to indefinitely detain foreign nationals suspected of threatening national security without charge or trial through Part 4 of the Anti-terrorism, Crime and Security Act 2001.
This was challenged and held by the House of Lords as incompatible with Article 5 of the European Convention of Human Rights. As with surveillance legislation outlined above, the challenge was upheld due to the principle of proportionality. The majority concluded that Part 4
“did not rationally address the threat to security and was a disproportionate response to that threat.” (Source)
I can understand why some may be unsympathetic to upholding the rights of potential terrorists. Yet we must remember that potential is the operative word. Surely everyone is entitled to know the charges and evidence against them, and a trial to decide whether they are guilty or not? Importantly, the issue of getting the right balance between proportionally and rights is not merely about fairness in terms of the individual, as succinctly summed up by Lord Hoffman
“The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.” (Source)
Part 4 of the Anti-terrorism, Crime and Security Act 2001 was repealed and replaced by control orders, and more recently Terrorism Prevention and Investigation Measures (TPIMs). However, there remain many concerns about the fairness of safety of these measures, as outlined by Liberty.
Quite separate to the issue of terrorism and national security, immigration policy continues to allow the indefinite detention of people – including minors and pregnant women, which is abhorrent IMO. Please see here and here and here if you want want to learn more about ways to campaign against this.
Thank goodness for human rights.
The legislation outlined here were, and are, being challenged because of the European Convention on Human Rights (ECHR). Do not Brexit panic. The ECHR is completely separate to the European Union. It is an instrument of the Council of Europe, and enforced by the European Court of Human Rights. It is incorporated into UK law through the Human Rights Act 1998.
OK, you can Brexit panic just a smidgen now as it’s not all quite so rosy or simple. Currently, alongside the Human Rights Act 1998, we are also protected by the EU Charter of Fundamental Rights. Last month, 317 MP’s voted against retaining the Charter when we withdraw from the EU. 299 didn’t. You can see how your MP voted here. Spoiler: our Weston-super-Mare MP John Penrose voted against.
What’s the problem with losing the Charter and retaining the Human Rights Act? In a recent Guardian article Trevor Tayleur, an associate professor at the University of Law explained that the Charter offers a more robust defence:
“At present, the main means of protecting human rights in the UK is the Human Rights Act 1998. This incorporates the bulk of the rights and freedoms enshrined in the European convention on human rights into UK law and thereby enables individuals to enforce their convention rights in the UK courts. However, there is a significant limitation to the protection afforded by the HRA because it does not override acts of parliament. In contrast, the protection afforded by the EU charter of fundamental rights is much stronger because where there is a conflict between basic rights contained in the charter and an act of the Westminster parliament, the charter will prevail over the act.”
And… even the Human Rights Act 1998 isn’t safe. The Conservative government have discussed repealing the Human Rights Act and replacing it with a British Bill of Rights. For now, the government have a few other things on their plate and so this has been put on the back burner.
We all need to be alert to when it’s back on the table.