Ammon News - AMMONNEWS - The abolition of the Human Rights Act and its replacement with a new Bill of Rights is vital for public protection and national security. But Michael Gove, the new Justice Secretary, is wise to avoid rushing into changes that might not work.
As Theresa May’s adviser during the long battle to deport Abu Qatada, I know the damage done to national security not just by Labour’s Human Rights Act but the European Court of Human Rights in Strasbourg.
Qatada, a Jordanian national, was a clear danger to the British public. He had an established association with Al Qaeda. Our courts found that “he provides a religious justification for … acts of violence and terror.” Jordanian courts found him guilty in absentia of serious terrorist offences. And we had diplomatic assurances from Jordan that he would not be mistreated.
The highest court in the land - in those days the House of Lords rather than the Supreme Court - had ruled that Qatada should be deported to Jordan to face justice. Yet more than ten years after deportation proceedings against him had begun, Strasbourg ruled - on unprecedented grounds - that he could not be deported. This was because there was a risk that some evidence against him might have been obtained from witnesses who themselves might have been mistreated. This argument had already been heard by the House of Lords and rejected, while the Jordanian constitution clearly prohibited evidence extracted from witnesses under duress.
The subsequent treaty with Jordan and the eventual deportation of Qatada rank among Theresa May’s finest successes as Home Secretary. But it is absurd that the Strasbourg court - and the case law it establishes - can jeopardise our national security in this way. The case of Qatada was the most infamous example, but human rights laws have prevented the removal of thousands of illegal immigrants and foreign criminals.
This is the predicament the Government must address - but the answer is not as straightforward as some suggest. One option is to seek changes to the European Convention itself, to make clear that all individual rights must be balanced against the requirements of national security and public protection. This would require the support of all 46 other member states of the Council of Europe, and the prospect of success is therefore extremely unlikely.
A second option is to repeal the Human Rights Act, remain a signatory to the European Convention, but legislate to make clear that the European Court’s rulings are not binding in the UK. After all, our constitution says Parliament is sovereign, so surely this would fix the problem?
The difficulties with this approach are several. First, as long as we remain signatories to the Convention, British judges are likely to follow Strasbourg case law, even if the duty upon them to “take into account” the European Court’s rulings is abolished. Second, British citizens will be free to petition the European Court, which will continue to rule against the Government where it sees fit. Third, while Parliament is of course sovereign, as long as we remain a signatory to an international treaty like the Convention, ministers will continue to be bound by their obligations under international law.
Such an approach would effectively two parallel human rights codes - one under national law and another under international law. For this approach to be meaningful, the Government would need to be prepared - on a systematic basis - to defy the rulings of a court that enforces a treaty to which we would remain a signatory.
Not only would membership of the Convention become pointless if we choose which rulings we abide by and which we do not, the practical consequences would be counter-productive. If the UK cherry picks which international obligations we should be bound by, so too will other countries. This would mean we would no longer have confidence in any of the commitments made by other states. So treaties such as those that guaranteed that Abu Qatada would not be mistreated in Jordan - which were made necessary by the rulings of British judges, not Strasbourg - would risk being seen as inconsequential by our own courts.
In practice, therefore, the choice facing the Government is binary. We can remain signatories to the European Convention, remain within the jurisdiction of the European Court, and accept its rulings and case law. Or we can choose to invoke Article 65.1, withdraw from the Convention and the jurisdiction of the Court, and set our own legal framework for human rights.
The arguments against withdrawal are not strong. First, the UK might have been an original signatory to the Convention in 1950, but that is no reason to remain a signatory now its interpretation has changed so profoundly. Second, despite what supporters of the Convention claim, our status as a signatory hardly encourages respect for human rights in countries like Russia. And third, withdrawal from the Convention would not jeopardise peace in Northern Ireland. The Good Friday peace agreement requires “complete incorporation into Northern Ireland law of the European Convention on Human Rights, with direct access to the courts, and remedies for breach of the convention, including power for the courts to overrule assembly legislation on the grounds of inconsistency”.
A new Bill of Rights that incorporates all the original articles of the European Convention - together with other traditional British rights such as the right to a trial by jury - would still be consistent with the Good Friday agreement. It would also allow Parliament - rather than Strasbourg - to decide where the balance lies between different rights. It would allow British courts and British judges to decide where the balance lies between those rights in individual cases. It would mean the UK can protect the public and national security while still defending human rights. And it would mean we can escape what has become a de facto European constitutional court: the UK should withdraw from the European Convention and the jurisdiction of the Court in Strasbourg.
*Telegraph.
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