Bad Politics, Worse Law: Re-writing the UK Human Rights Act Commentary
Bad Politics, Worse Law: Re-writing the UK Human Rights Act
Edited by: Jeremiah Lee

JURIST Guest Columnist Chandra Lekha Sriram, Chair of Human Rights at the University of East London School of Law (UK), says that the UK government's push to limit the application of the Human Rights Act in matters of public safety is politically dubious and legally unjustifiable…

When it was revealed that the US program of 'extraordinary rendition' was delivering terror suspects to countries where torture was routinely practiced to be interrogated, UK politicians declared their outrage widely. When reports emerged that such rendition involved flight paths over western Europe, our leaders demanded answers. In the face of ongoing reports of prisoner mistreatment in Camp Delta in Guantanamo, UK Prime Minister Tony Blair declared the US prison an 'anomaly', stopping just short of suggesting that it ought to be closed, a step which has since been taken by his Attorney General, Lord Goldsmith. In the fall of 2005 the UK Minister for Constitutional Affairs, Lord Falconer, categorically condemned torture, asserting that the UK was the first European country to ban torture, in 1709.

Considering all this, many in the UK and abroad might be forgiven for believing that the Blair administration is committed to an ethical foreign policy and the staunch defense of human rights.

Yet the position of the UK government on the protection of human rights and the prevention of torture in the context of the war on terror has not been so unequivocal, a point lately highlighted by Blair's vow to re-write the UK Human Rights Act (HRA) in the wake of court determinations that nine men who hijacked a plane from Afghanistan to London in 2000, seeking to escape persecution by the Taliban, could not be returned home. Citing public safety and the war on terror, Blair and other politicians seem prepared to re-write British human rights law in ways that would have long-term effects on due process of law in this country.

The call to revise the Act is legally unjustifiable, and appears to be driven by short-sighted domestic political concerns as much as anything else.

In the first place, revising the Act as suggested is contrary to the UK's obligations under international and regional human rights law. Both the Torture Convention of 1984, and the European Convention on Human Rights and Fundamental Freedoms of 1950, prohibit the use of torture, and no derogations are permitted, as they are in the case of some other rights enshrined in these documents, in the event of war or public emergency. The Torture Convention prohibits the return of any person to a country where she might face torture, and UK judges have interpreted the UK's obligations under the European Convention and the HRA, which incorporates the European Convention into domestic law, to bar such returns. Further, mere reassurance by the recipient country that specific individuals will not face torture is unlikely to survive legal scrutiny by domestic courts or the European Court of Human Rights.

Indeed the original UK court decision interpreting the HRA's language enshrining he protections of the European Convention held that the hijackers could not be deported because of the protection against torture. It is for this reason that the HRA has come under fire. The Tories first led the call to eliminate or re-write the Act, and soon after Lord Falconer himself suggested that it might need re-writing, even suggesting that a 'human rights culture' created by the Act had led to the release of a rapist in an unrelated case. The claim has been simple: public safety and the war on terror require a revision of the HRA. Blair soon followed suit, calling for reform of the Act and arguing that the ruling was an 'abuse of common sense.'

The argument made by those leading the call for reform has been that revision would not derogate from the UK's international obligations, and that the UK Act either incorporates the European Convention differently than other member states do, or offers confusing guidance to judges who are then issuing ill-advised judgments.

The claim by those seeking the revision of the act is this, then: courts in the UK are misinterpreting fundamental rights, and are giving them undue preference over public security. Therefore, the revisions that Blair would seek would limit judicial discretion in the interpretation of the UK's international obligations. Yet this would undermine the very purpose of the Torture Convention, the European Convention, and indeed the HRA, to protect individuals against the excesses of their governments, even where those governments have other valid goals, such as the prevention of terrorism. Such changes would subject due process and the protection of individual rights to the vagaries of politics and politicians in ways that invite authoritarian abuses.

The push to revise the HRA may be seen as part of a larger trend amongst the leaders of the country to prioritize public security and the war on terror over human rights and civil liberties. Notwithstanding the apparently strong criticisms of rendition and Guantanamo by UK politicians, the country has not only allowed its airspace to be used for rendition flights, but rendition flights apparently landed at some UK and Northern Ireland airstrips, and there are allegations that UK intelligence agency MI5 enabled the rendition of two UK residents to Guantanamo. The UK also reached an agreement with Jordan for the deportation of Jordanian terror suspects back to that country after gaining reassurances that they would not be tortured. As with any revision of the HRA to allow the return of individuals to countries where they might be tortured, agreements with Jordan or any other country where official torture is a significant risk, even if government reassurances are offered, are not consistent with the UK's international obligations.

The proposal to revise the HRA might be seen as designed to a address a short-term domestic political problem rather than a serious legal issue. The current government faces a scandal over the release of perhaps 150 dangerous foreign criminals without deporting them, or even tracking their whereabouts, as would have been appropriate. No one has genuinely argued that these individuals were terrorists, or that they were allowed to stay because of the HRA. However, this scandal clearly motivates many of the calls for reform, and politicians have conflated the foreign criminal scandal, which involves common criminals, with the Afghan decision, a separate case involving the release of an individual rapist, and the treatment of terrorism suspects generally. The conclusion in the rush to judgment: the HRA is the culprit and must be revised.

But reforming the HRA will not make the current scandal go away, nor would it relieve the UK of its international human rights obligations. Deportations of individuals to countries where they might be tortured would still violate international law. Equally, any revision of the HRA, and any move to publicly deport individuals to countries with records of officially sanctioned torture – whether Afghanistan under the Taliban, or Jordan today – strips the UK and Tony Blair of whatever moral authority the push for an 'ethical foreign policy' might have conferred. It places UK politicians in the ranks of the hypocrites when they seek to condemn the US for policies of extraordinary rendition, or in Guantanamo, and further distances the country from European allies who do not share their interpretation of key human rights obligations.

Revision of the HRA is, in short, a poor and p
otentially permanent response to a current and temporary political crisis. It threatens real protections of human rights in the name of illusory advances in security.

Professor Chandra Lekha Sriram is Chair in Human Rights and Director of the newly founded Centre on Human Rights in Conflict at the University of East London School of Law.

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.