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Detaining terrorists, Brexit negotiations and the repeal of the Human Rights Act

Jim McConalogue, 25 February 2020

The current challenges that face Boris Johnson both in relation to ending the automatic early release of terror offenders from prison and the impending Brexit negotiations could be solved very easily by him taking one decisive position – to govern in the national interest while repealing that crumbling lawyer’s charter, the Human Rights Act 1998. 

Immediately after the Streatham terror attack this month, it alarmed most to discover that the attacker had only just left prison for terror-related offences when he carried out the attack leaving three ordinary people injured. The government’s strategy has been to enact emergency legislation this month with the intention of ending the automatic early release from prison of both current and future terror offenders. The Terrorist Offenders (Restriction of Early Release) Bill is now through the House of Lords and looks likely to become law. So, those convicted of terrorism offences will no longer be released automatically (without any oversight by the Parole Board) after they have served half of their sentence. The only problem is this: by itself, it is probable it could be heading for the courts in its current form.

Good legislative intentions will not prevent the situation in which the government, by extending the time terrorists serve in prison, will inevitably face the courts in breach of the European Convention on Human Rights, incorporated into UK law by the Human Rights Act. In this instance, it might seem probable the Convention (under Article 7) would mean a ruling against the government on making any retrospective changes for existing prisoners.

Ministers themselves are defensive. They have stated the Bill does not engage Article 7 of the European Convention because their law relates to the way in which the sentence is administered, not a change in the nature of the penalty itself. But Strasbourg jurisprudence has always moved the goalposts of UK criminal justice policy decision-making. There is a justifiable fear therefore that it will not go the government’s way. Certainly, the Bill does not claim to create a new criminal offence. Instead, it seeks to prevent terrorists convicted by UK courts on the basis of offences that existed prior to the Bill from having automatic early release. The government maintains that the Bill does not retrospectively alter a serving offender’s sentence as imposed by the court or alter the maximum penalties for offences.

Nevertheless, in the House of Commons debate on the legislation, one MP (Sir Bill Cash) highlighted Strasbourg case law that could well still come into play there – it is well worth watching out for as it seems probable to have some bearing. As Cash suggested, “I fear that it might be used effectively against the Bill.” He assured that although he did not think that Article 7 applied to the Bill, he talked of ensuring that the courts do not find a way around the Bill or “a misguided interpretation” that would frustrate the intention of the Bill.

Were this new hypothetical situation to arise, the Prime Minister could (in theory) suspend, or “derogate” from the European Convention but a similar challenge occurred under the infamous Belmarsh prison ruling, which ended incredibly badly for the then Labour government. Recall, following the 9/11 terrorist attacks in the US in 2001, the Labour Government enacted anti-terror laws. They provided for indefinite detention of foreign nationals suspected of being involved in terrorism and who could not simply be repatriated to their countries of origin.

But, even though the then Labour government had itself necessarily opted out of part of the European Convention which protected the right to a fair trial in order to bring in anti-terrorism legislation, the House of Lords in 2004 found the Government to be in breach of the Convention. In the case of nine detainees, it considered the law to be both disproportionate and discriminatory. The judges interfered in a highly charged national security context by making a quashing order of the derogation order – and it seems probable they would do so again. There have been innumerable cases. In the event of encountering those Convention obstacles, the current government could finally choose to repeal the Human Rights Act.

It is twenty years overdue. The former Prime Minister (Theresa May), as Home Secretary, advocated repeal of the Act. The Prime Minster before her (David Cameron) pledged to scrap it. Now, Boris Johnson looking across the legal minefield, must act.

The Human Rights Act has left us with absurd obligations put in place and supported by hasty reforms of a naive, post-1997 Labour administration generation, gripped by neo-liberal assumptions of automatic rights for questionable ‘human rights’ cases.

To make matters worse, buried deep inside the European Commission’s plans (released this month) for the Brexit negotiations on a future UK-EU relationship is the challenge that the agreement “…should provide for the automatic termination of the law enforcement cooperation and judicial cooperation in criminal matters if the United Kingdom were to denounce the European Convention on Human Rights”. There is to be “automatic suspension” if we are to repeal our domestic law giving effect to the Convention. The Prime Minister has rightly rebutted many existing EU demands for alignment, but he must now commit to a fundamental dealignment on Strasbourg jurisprudence.

During the Brexit process, the glaring contradiction between the government withdrawing from an EU legal architecture while seeking to enhance a complementing Council of Europe rights-based system (through the Human Rights Act) represents a flawed and ambiguous guarantee of rights for the whole of society.

There are many ‘rights activists’ who advocate saving the Human Rights Act at every turn but entirely neglect the rights of all members of the public in society to national security and public safety. The Act also remains entirely at odds with any legitimate governing strategy after Brexit: to have a stronger democratic process in which applicable rights and laws of the land are derived from a strongly contested and democratic public sphere.

During the completion of the Brexit process, the UK must clearly leave the jurisdiction of the European Court of Human Rights in Strasbourg. The legitimate public expectation for the detention of terrorists, the legal obstacles in the Brexit negotiations, along with the Conservative government’s commitment to “update” the Human Rights Act in its own manifesto at the last election, surely provides a stark illustration of why the Act must finally be abolished.

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