The Human Rights Act: another false attack

Tories from the prime minister downwards, and (to their shame) some relics of New Labour, lose no opportunity to lambast the Human Rights Act, which the Conservatives (but not the coalition) still threaten to repeal and replace.  The latest attack on the HRA has been prompted by outrage over the widely reported failure of a campaign to deport an Iraqi convicted of running down and killing  a little girl in Blackburn.  The driver, Aso Mohammed Ibrahim, left the child under the wheels of his car and ran away.  The child’s father has been campaigning for years to have him deported.  The Daily Mail and the prime minister have been among those blaming the decision not to deport the guilty driver on the Human Rights Act.  Both are wrong.

The facts of the case are lucidly set out in an article by the distinguished human rights lawyer, Sir Geoffrey Bindman, in an article for Our Kingdom on openDemocracy on 29 December 2010[1].  There’s no need for me to set it out again here.  The article begins:

It is time not only to defend the Human Rights Act but [also] to counter-attack the falsehoods and distortions of those who misrepresent it. Regrettably these include the Prime Minister as well as more predictable elements of the media, particularly the Daily Mail. Furthermore, it is time for Labour to speak up for the Act which it courageously introduced in the face of bureaucratic opposition to enable people to defend their fundamental rights from arbitrary power – including, of course, the despotic power of the press.

If anyone has earned the right to speak out for the Human Rights Act, it’s Sir Geoffrey Bindman:

Geoffrey Bindman is a former chairman and vice-president of the Society of Labour Lawyers. He is chairman of the British Institute of Human Rights.
From 1966-1976 he was legal adviser to the Race Relations Board and thereafter until 1983 to the Commission for Racial Equality.
He is a Visiting Professor of Law at University College London and at London South Bank University, an Honorary Fellow in Civil Legal Process at the University of Kent, and a Fellow of the Society of Advanced Legal Studies. In 1982 he was Visiting Professor of Law at the University of California at Los Angeles. In July 2000 he received an honorary doctorate from De Montfort University. He also has an honorary doctorate from Kingston University, and is chair of the Board of Trustees at the British Institute of Human Rights.
He has lectured at law schools in Britain, America, and other countries. Geoffrey is a regular writer and broadcaster in the specialist and national media on human rights, media law, anti-discrimination law, and the legal profession.
He has won awards for a lifetime’s achievement in human rights from Liberty (December 1999) and the Law Society’s Gazette (October 2003). In April 2000, he was presented with the International Client Counselling Competition award in recognition of his lifetime contribution to client interviewing and counselling throughout the world.   Sir Geoffrey Bindman (born 1933) was knighted in the New Year Honours 2007  list….  [etc]
[, etc.]

The Human Rights Act is one of the achievements of Tony Blair’s Labour government of which all Labour people can and should be proud.  The fact that government ministers of all political persuasions sometimes feel frustrated by the constraints it imposes on an anyway over-mighty executive is compelling evidence that the rule of law may conflict with the wishes of the executive and that when this happens, the rule of law must be paramount — a fundamental principle that was tragically breached in the decision to go to war with Iraq.  In this specific case, however, the fact that Aso Mohammed Ibrahim was not deported after serving his prison sentence had nothing at all to do with the Human Rights Act, as Geoffrey Bindman shows.  We expect the unscrupulous reactionaries of the Daily Mail to ignore the truth in their search for ammunition in their populist campaigns, but we’re surely entitled to something a little better from Mr Cameron.

The prime minister has also been guilty of seriously misrepresenting, by clear implication, the stated policy of the government which he heads in regard to the future of the HRA.  As Bindman says, —

The Prime Minister’s suggestion that he will repeal the HRA to prevent anything like this happening again flatly contradicts the coalition agreement and would leave us still bound by the European Convention. He has already been told this by his lawyers.

The scandalous aspersions later cast while still in office on their own Act by some New Labour Ministers, including Tony Blair, are another example of the millstones left round the Labour Party’s neck by too many of the illiberal utterances and unprincipled measures that they left behind.  Ed Miliband has shown from the beginning of his leadership that he recognises the imperative need for Labour to take advantage of its time in opposition to liberate itself from the murkier elements of the New Labour record, especially over Iraq and civil rights.  A reaffirmation of the importance of the Human Rights Act, and of Labour’s determined opposition to any attempt to repeal or replace it, will be a big step in the right direction.

Postscript:  Labour should never be taken in by the flawed Tory mantra that “with rights go responsibilities” — used to explain the intention to repeal the HRA by a new law designed, we’re told, to spell out the responsibilities of the citizen as well as her rights.  The implication of this can only be that the exercise of our rights are conditional on the fulfilment of our responsibilities, a completely unacceptable proposition.  Stalin, Mao and Hitler all sought to justify trampling on the fundamental rights of their peoples by asserting that failure to fulfil civic responsibilities, as defined by the state (i.e. themselves), entailed the loss of those rights.  The American Founding Fathers got it right, as usual:  “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator  with certain unalienable Rights…”   Please remind your MP of this if she (or he) tries to tell you that the thousands of our fellow citizens currently filling our prisons to bursting-point should not be allowed to vote in UK elections because by breaking the law, they have lost their rights.  No, they have not.  They have temporarily lost the right to liberty, as recognised and authorised by the Human Rights Act and its parent, the European Human Rights Convention.  Their other rights remain intact;  at any rate, they should.

[1]  A shorter version of Sir Geoffrey Bindman’s article appeared in The Guardian on 28 December.


4 Responses

  1. Phil says:

    Their other rights remain intact;  at any rate, they should.

    Cf. Lord Wilberforce’s 1982 formulation: “a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication”. I think that’s still the state of the law; at least, I can’t see the HRA giving convicted prisoners fewer rights than they had before it was passed.

    Brian writes: Thank you for this powerful confirmation of the position, Phil!

  2. Jeremy says:

    Both you and Geoffrey Bindman rightly point to the failure of the Home Office to take earlier action to enforce the removal of Aso Mohammed Ibrahim, an Iraqi failed asylum seeker, and the even more reprehensible failure of the CPS to charge him with a suitably serious offence as the prime reasons for the  decision, on recoinsideration, by the Asylum and Immigration Tribunal to allow him to remain in the Uk with his family. As the Tribunal remarked the outcome might well have been different had there not  been these failures. I therefore agree that the Prime MMinister and others were wrong to blame the Human Right Act – really the European Convention of Hman Rights (ECHR) for the outcome. However,it is surely understandable that politicians of all hues will sometimes feel obliged to reflect the frustration and sense of outrage felt accross much of society when judicial decisions based on the ECHR appear to contradict the sense of what is right and fair.

    So whilst I agree that it is unrealistic to promise  – and indeed ineffective – to repeal the HRA, the supporters of the Act appear too willing to accept that it does not have weaknesses or present problems. You refer to “inalienable rights”. Fair enough but should these include the right to enjoy family life in a country where you otherwise have no right to reside and indde are an overstayer who has committed a series of crimes?  I suggest not, a view shared, I believe, by the great majority of our citizens of all political persuasions.  

     Having frequently had to apply the provisions of Article 8 in immigration appeals that came before me I have no quibble with the terms of the Article.  But I do have serious doubts as to the way The European Court of Human Rights and our own higher courts have chosen to interpret the proportionality element in the right to family and private life, especially in relation to removal and right to remain cases. There is  a need to accord more weight to the rights and interests of the wider society when weighing whether an appelnt who has blatantly abused the hospitality of this country should be able to rely on relationships established after he has been refused the right to remain in the UK. Taking Ibrahim’s case, his wife must be presumed to have been aware at the time of his marriage of his record and parlous immigratiuon status. Whilst I know nothing of the genuineness of this particular relationship, it is common for overstayers to look to marriage to a UK or EU national to take advantage of Article 8. Similarly I regard it as usually wrong to allow the rights of children in such circumstances to prevail when it would be possible, though no doubt difficult and less pleasant, for the whole family to return to  the appellnt’s country of origin. This may seem harsh but if this was the norm I suspect that less overstayers would embark on such marriages and there would be wider public respect for the law realating to human rights.

    Whether it is possible to redress the balance in the way I have suggested is doubtful but I am sure that as with giving more priority to the victim in criminal cases, there will be growing calls for such a change. 

    Brian writes: Thank you for this, Jeremy. I wouldn’t dream of challenging comments, such as yours, that are based on actual experience of administering this law, while I have (almost) no such experience. You may well be right to say that Article 8 of the Convention has tended to be interpreted by the courts in a way that leans too far towards the individual with insufficient regard paid to the interests of society; and that there are immigrants, possibly including the Iraqi in question, who take advantage of it by using marriage and fatherhood or motherhood to improve their chances of avoiding deportation. I would only say that I would much prefer the courts to err in the direction of protecting the individual than in the opposite direction: society is much better able to absorb the costs of over-zealous protection of unworthy individuals than vice versa; and moreover I would argue that the certainty of a degree of abuse is no reason to withhold rights, or even to define them so restrictively that in practice some who need to rely on them are prevented from doing so.

    In this specific case, it appears that the Iraqi’s wife, whom he married after having served his sentence for the killing of the little girl, is English, so neither she nor their children can ever have been to Iraq or have any familiarity with its culture and problems (even more relevant given that he’s not just an Iraqi but an Iraqi Kurd). That being so, you can’t properly talk about the implications of forcing “the whole family to ‘return’ to the appellant’s country of origin” since most of them have never been there in the first place. Effectively to deport an British citizen and her children to a foreign country of which they have no experience, and what’s more to a strife-ridden country in which as the family of a Kurd they would be exposed to all the dangers and stresses of an embattled minority, would not just be ‘harsh’ (your word), but intolerable — a spectacular injustice, on almost any reckoning. It’s galling that this man, with his appalling record of criminal behaviour, should be allowed to exploit the régime of human rights which on the whole we have established in this country: but it seems to me that the alternative would be even worse, and that the courts, if not the prosecution service, have got it right. The man may well have got married and fathered children for the basest of motives, for all we know. But the law has to deal with what people do, not, usually, with their innermost motives for doing it. We should not seek windows into [wo]men’s souls. As Bindman points out, the court’s decision defends the rights of the wife and children under the HRA, not the Iraqi’s.

    Whatever the rights and wrongs of this and other cases, and whatever the risks that rights will be abused, it must surely be indefensible to try cynically to exploit this particular case in order to try to discredit the Human Rights Act as a whole, as David Cameron, Amanda Platell, and others have shamefully sought to do. That was the main point of Geoffrey Bindman’s article, as I read it, and certainly of my post. I’m glad that on that at least we’re in agreement.

  3. Jeremy says:

    The logic of your position is that once a family unit has been established in this country there is an inalienable right for their family life to be pursued in the country of their choice when the other country is unfamiliart to some of the family members even when one party to the union is a foreign national with an appalling record who has already received notice that he was subject to removal after exhausting his legal remedies to be allowed to remain. This has never been the position under English law and neither is it provided for by Article 8. Many righteous and impeccably behaved family members are obliged for one reason or another to live apart and to pursue their family life by means of visits in one or both directions.Why should a  convicted criminal be treated more favourably?

     Bindman correctly pointed out that it was the rights of Ibrahim’s wife and children who were protected by the Tribunal but if you accept the principle of having to live with the consequences of your actions -which I do – then Ibrahim and his wife should have considered the probability of separation on account of his previous  conduct and lack of any right to remain here.

    I realise you will reject this argument but I stand by my claim that the present interpretation of Article 8 in cases like this creates general resentment and disillusionment with the law. Of course such decisions must be reached judicially rather than by the executive but this specific ruling will never be regarded by the general public as right and fair. For this reason David Cameron’s dismay and frustration wi in my view understandable even if his criticsm of the HRA was largely misplaced.

    Finally, with some hesitation I adhere to the view that a few firm decisions on this angle of Article 8 would help to deter others from exploiting the human Rights regime and could be justified on this ground.

    Brian writes: Thanks again, Jeremy. You correctly predict that I won’t be convinced by what you say! I don’t accept that the sweeping generalisation which you describe as ‘the logic of my position’ follows from what I have said about this particular case. Each case obviously has to be considered on its merits and there are factors in this case which wouldn’t necessarily apply in others, although they might well be present in some. I have a nagging suspicion that when you advocate “a few firm decisions” in individual cases designed to deter others from exploiting the HRA, you really mean repressive and inhumane, not just firm, decisions, and I don’t at all buy the ‘logic’ of that proposition — i.e. that it’s OK to execute the occasional admiral pour encourager les autres. Nor do I agree that the courts should be influenced in their decisions by the fear that any evidence of humanity will be exploited by the feral tabloids to incite popular disapproval and thus “bring the law into disrepute”. There are solid grounds for endorsing this particular decision on the future of the Iraqi Kurd’s family, or for acknowledging its validity even if you disagree with it, and it’s the duty of a political leader with any guts to explain its rationale and rebut misrepresentations, not to pour additional fuel on the flames as the prime minister has seen fit to do. Sorry!

  4. Phil says:

    The Labour leadership seems to have taken a position firmly to the Right of the Coalition on prisoners’ rights, as I’ve blogged here. I’m still hoping that Ed M will eventually take wiser advice, but so far the signs aren’t good.

    Brian writes: Thank you for this grim news. Your blog post should be compulsory reading for all Labour people who care about human rights and civil liberties. On top of this it seems that Sadiq Khan as shadow justice secretary (and Ed Miliband’s campaign manager) has been denouncing coalition plans for either abolishing or reforming the totally unacceptable and indefensible control orders régime, although I don’t have chapter and verse for this and I hope it will turn out to be untrue. If Labour under its new leader and in its new parliamentary, financial and economic situation carries on like this, I for one shall be taking a pair of scissors to my party card and applying to join the Greens. I trust that many others will be doing likewise.