In Britain they first came for the foreigners…

At the end of a week in which the Human Rights Act has come under an unprecedented assault, both in the press and from senior politicians, including the Prime Minister, Tony Blair, and the Leader of the Opposition, David Cameron, it has taken the Telegraph to provide the neatest and most succinct example, to date, of everything that is fundamentally wrong about this whole debate:

The Afghans who hijacked a civilian airliner are rewarded with a judgment that they are entitled to stay in Britain at the taxpayer’s expense.

Foreign terrorists who reportedly plot the murder of hundreds of British civilians cannot be deported back to their countries of origin, nor may they be detained here. Murderers and rapists are entitled to have any decision to keep them in prison reviewed by a judicial hearing, at which they must be represented by a lawyer – and as a result, an intimidated Probation Service frees killers who go on to murder fresh victims.

I’ve already dealt with the matter of the ‘Stansted Nine’ here, but would also like to point readers to the thoughts of Brian Barder and Tony Hatfield, both of who bring the wisdom of years and an incisive legal mind to bear on this matter and on the matter of the Human Rights Act in general.

However, I would like to add one simple observation here – as far as I can see, not only are there no legitimate grounds on which to deport the Stansted Nine at the present time but the sole reason I can see for the government pursuing the deportation with such vigour derives from the fact that, at the time of the actual hi-jacking, which is now getting on for six years ago, the Home Secretary of the day, Jack Straw, made a great show of ‘promising’ that these men would be deported – this was long before their case had even been properly investigated let alone brought before a jury.

It does seem to me the, in this matter, the government are motivated exclusively by political considerations and not by the considerations of justice or the proper application of the law, which is about as shameful as it gets. One of the key rationales for separating the powers of the executive, legislature and judiciary is to prevent politicians playing god with people’s lives in the interests of political gain and their own public image, and yet it seems to me that an attempt at ‘playing god’ is exactly what is going on here.

As regards the ‘foreign terrorists’ who cannot be deported or detained here, these are, of course, the alleged foreign terrorist suspects who were formerly detained in Belmarsh Prison and who are now held effectively under house arrest using control orders, which were introduced to replace the system of arbitrary detention without charge after this was ruled unlawful by the High Court.

These men cannot currently be deported to the countries of origin because each has an extreme poor human rights record which includes the routine/semi-routine use of torture. While the prohibition on deportation in these circumstances is enforced in the UK courts under the Human Rights Act, it actually derives not from the Act itself but from the case of Chahal -v- The United Kingdom, which was heard by the European Court of Human Rights and the decision, in this case, in binding on the UK courts with or without the Human Rights Act to back it up.

The government’s response to this has been to work towards trying to bypass the ruling in Chahal by obtaining a memorandum of agreement from these states; which include Algeria, Egypt, Libya and Jordan, amongst others, in which the state gives an undertaking not to torture these people if they are sent back to those nations – except that the considered opinion of most of those who do concern themselves with Human Rights law is that such memoranda will not be worth the paper they’re written on, a fact underlined by the government’s efforts to place the responsibility for monitoring Libya’s compliance with the agreement it has already signed into the hands of a ‘human rights charity’ run by the son of Colonel Qaddafi.

Both these cases are rooted in article three of the European Convention on Human Rights, which provides for an absolute prohibition on the use of torture from which there is no room for derogation. As the Telegraph points out, correctly, to override the decision of the courts in these matters would require not only the repeal of the Human Rights Act but Britain’s withdrawal from the European Convention, which it signed in 1953. What the Telegraph neglects to mention however, is that we would also have to withdraw from the United Nations Convention Against Torture (UNCAT), which we signed in 1985 and ratified in 1998, at the same time – this would put into a select little band of nations that are outside this convention, which includes North Korea, Iran, Iraq and Syria – nice company we’d be keeping, eh?

On this matter, the Telegraph has this to say:

The only way to remedy judicial decisions that "defy common sense" (to use the Prime Minister’s apt phrase) is to opt out of the European Convention altogether: there would be few if any harmful effects. There may be claims that it would set "a bad example" – but Britain is not responsible for the legal systems of other countries.

I find it difficult to understand quite how the Telegraph can take the view that isolating the UK not only from Europe but from, in effect, the rest of the civilised world would have ‘few if any harmful effects’, not least as  it is highly likely that such a withdrawal from ECHR would also require Britain’s wholesale withdrawal from the European Union, a move which would most certainly have considerable harmful effects, at least in the short-term, on the UK economy, amongst other things…

…well, actually, it’s not so difficult as this can readily be explained in one of three ways:

1. The Telegraph simply haven’t thought through, in full, the implication of such a move,

2. The Telegraph has thought it through and decided this would be a hand backdoor route to forcing the UK to leave the EU, or

3. The author of this editorial is a complete and utter half-wit.

As things stand, any of the three seem equally plausible.

Before leaving this matter, we should also consider the one question that the government seem studiously keen to avoid – if these men have been plotting ‘the murder of hundreds of British civilians’ then why have they not been brought to trial? Conspiracy is by no means the easiest case to prove but it is a criminal offence and could be taken before a court.

The answer, so far as we have been able to glean one, seems to have to with the absence, in these cases, of any credible evidence that might reasonably be admissible in a British court, some of which, it has been suggested, may have been obtained by torture – ironically in the very countries with which the government intends to have memoranda promising that torture if we deport these people.

So who is really to blame for this situation? The Human Rights Act? Or the government and security services who, by cutting corners, lowering standards and interning people on the basis of ‘evidence’ which is not admissible in a British court, now find themselves stuck with a group of people they can legally do almost nothing with?

As a final note on this issue, the one thing that seemingly has been forgotten in the all sound-bites and fury this week is that article 3 of ECHR not only prevents Britain from deporting foreign nationals to countries which practice torture, it also prevents Britain extraditing its own citizens to such countries, and to those that still make use of the death penalty, where there is no express undertaking that such a penalty will not be applied (and, of course, where such an undertaking can reasonably be relied upon).

The second part of the Telegraph’s opening gambit relates, of course, to the case of Anthony Rice.

Now unlike, I suspect, most of the tabloid hacks who’ve been screaming about this case for the last few days and, in particular, blaming the Human Rights Act for the failings of the parole and probation systems, I’ve actually read the report of the Chief Inspector of Probation, Andrew Bridges, in full – and it really is worth reading in full as the picture that emerges is very different to that painted by the press and by senior politicians, not one of the ‘rights of criminals’ being put ahead of public safety but rather one in which those charged with such considerations on our behalf were, and maybe still are, lacking in the basic competencies required to fulfill their duties successfully.

One can, perhaps, understand how this false picture has emerged when one considers that the report contained around 15-20 references of similar character to this one::

This whole process is additionally complicated by the human rights considerations in each case which have grown in importance following a series of Court judgments. Prisoners are now legally represented at Parole Board hearings, often by counsel, who also have recourse to judicial review. It is a challenging task for people who are charged with managing offenders effectively to ensure that public protection considerations are not undermined by the human rights considerations.

Of course, however, the key line in this paragraph is this:

It is a challenging task for people who are charged with managing offenders effectively to ensure that public protection considerations are not undermined by the human rights considerations.

Which, translated into English from bureaucratic bullshit, actually means that there have been systemic failings in the workings of the Parole Board and Probation service, failings that are the direct result of a wholesale’ lack of competence in the area of Human Rights law compounded by a desire, at seeming all costs, to avoid cases being brought to judicial review, where they can be dealt with appropriately by a competent authority.

The key to sifting the real problems in this case from the semi-exculpatory smoke-screen being thrown up by the report having so heavily cited the Human Rights Act, lies in this section covering the circumstances of Rice’s release on licence:

Principal Finding 3: Management of release on Licence

1.3.1 Based on the reports received about the progress that he had made during his sentence and his proposed resettlement plan, the Parole Board made a final decision in 2004 that Anthony Rice, who was five years past his ‘tariff date’, was safe to release. We consider that in doing so they gave insufficient weight to the underlying nature of his Risk of Harm to others, and we think this happened for a combination of reasons:

They did not have full knowledge of his past offending behaviour, in particular that he had been an offender against children.

They received cautiously encouraging but ultimately over-optimistic reports of Anthony Rice’s progress under treatment.

Their own earlier decision in 2001 to transfer him to open prison conditions in our view set in motion a momentum towards release. As we see it that Parole Board decision created in this case a set of expectations that release had now become a matter of ‘when’ not ‘if’. (We believe it has a similar effect in other ‘Lifer’ cases.)

It was also from 2001 that in our view the people managing this case started to allow its public protection considerations to be undermined by its human rights considerations, as these required increasing attention from all involved, especially as the prisoner was legally represented.

1.3.2 A crucial dimension to our finding is that the 2001 decision was in a sense the key decision that made the eventual release decision more likely, because the momentum towards release started from that point. Accordingly in this report we treat the entire period of open prison conditions as being part of the ‘release decision’ phase rather than the ‘period in custody’ phase of the case.

1.3.3 Hence we find a problematic ambiguity in the role of the open prison conditions phase for a life-sentenced prisoner that we believe needs to be addressed. In theory the idea is that a spell in open prison conditions provides an opportunity for the prisoner to be tested both on what he has learned from his treatment and on how he consequently behaves – leading to a final decision about his release. We understand and certainly support this principle. But we consider that in practice the expectation by the prisoner is often significantly different from this: You are now in the last phase before release, and unless you blow it completely you will be out before long.

What this tells us is not the Human Rights Act was at fault in this matter, but that it was a largely peripheral issue that, at worst, caused the Parole Board to momentarily take their eye off a ball that had already been dropped. of much greater concern in this matter should be the manifest failings of the parole system, itself, which meant that those considering whether Rice continued to present a risk to public safety were not adequately appraised of his past offending behaviour and were provided with ‘encouraging but ultimately over-optimistic reports of Anthony Rice’s progress under treatment’, matters which would have cast any human rights considerations in his case into an altogether different light.

This seems to me the central issue in this whole case – why was Rice released in the first place – and it is certainly the one in which the public has the greatest interest as everything that followed proceeded from this one decision.

What needs to be noted here is that:

a) The Parole Board that met and approved Rice’s release under licence would have consisted of a chairman, who is always a judge, a psychiatrist and an independent lay member, and

b) The test that a Parole Board is required to apply in considering an application, such as that submitted by Rice is:

"whether the Lifer’s level of risk to the life and limb of others is considered to be more than minimal”.

All things being equal, it would seem to me that human rights considerations should only come into play after the Parole Board as reached a conclusion on whether a prisoner satisfies this test – in this case, hindsight tells us that Rice did not but that, crucially, the Parole Board reached its decision based on incomplete and inaccurate information, which has nothing whatsoever to do with consideration of Rice’s human rights at all.

This being the case, there is no need for a change in law to address this issue, as this a simply matter of ensuring that Parole Boards apply the correct procedure in the right order and are provided with the right information and any talk, by politicians, of the need to revise the Human Rights Act arising out of this case would be no more than the usual political grandstanding to the tabloid press.

While this report is by no means a whitewash, the key issues it raises – those relating to the systemic failures in the parole system that led to his being released in the first place – have been almost entirely lost in the media-generated furore surrounding the supposedly malign influence of the Human Rights Act in this case, which politicians have, of course, seized upon for either the own political gain (Cameron) or to deflect attention from incompetence and maladministration for which they are ultimately responsible (Blair). It would be easy to be cynical about the dual-pronged assault on the Human Rights Act that has been made by the right-wing press and senior Labour/Tory politicians, to respond simply by observing that ‘they would say that, wouldn’t they’ were it not for the fact that this report lays open a growing and disturbing trend amongst those working in the criminal justice system in which public servants are as much inclined to blame the Human Rights Act for their failings as their political masters.

Reading Bridge’s report one cannot fail to be struck by the extent to which it offers a rather political commentary on the circumstances of the release of Anthony Rice, most strikingly in this passage in the final section section of the report:

If our analysis of how Anthony Rice came to be released is accepted, some people will ask: “Does this happen in other cases too?” The answer is possibly yes. We know that over the last 15 years there has been a series of test cases and judgments that have eroded the Home Secretary’s powers to determine release decisions for lifers by executive action. We observe that life-sentenced prisoners now have the right to be heard and to be represented at Parole Board panel hearings. We note that they are regularly represented by counsel, while the interests of the public, victims, and Home Secretary are represented by a Prison Service official. In this context we are not alone in identifying the increasing challenge for all involved in managing offenders to ensure that public protection considerations are not undermined by the human rights considerations of each case.

Yes, the Home Secretary’s executive powers in relation to release decisions for individuals serving discretionary life sentences have diminished over the last fifteen years as a consequence of judicial rulings, the main body of which either pre-date the introduction of the Human Rights Act or, as with the present legal constraints on deportation of foreign nationals, derive from rulings made in the European Court of Human Rights and not by a UK Court acting on the provisions of the Human Rights Act – and with good reason. In handing down these rulings, what the courts have correctly recognised is that the practice of assigning responsibility for judicial decisions on the release of prisoners from custody to a politician is entirely inappropriate and inconsistent with the demands of a fair and equitable criminal justice in which individual cases are treated entirely on merit. It should be obvious to anyone with a modicum of common sense that the practice of assigning responsibility in such matters to a politician introduces an unacceptable conflict of interest into the consideration of exactly how long a prisoner should be detained, having been given a discretionary life sentence, and when they should be considered eligible for release – in short it is all too easy for a politician to be swayed in their judgment by the question of how a decision to release a particular individual might play in the press and whether it might leave them open to a charge of being ‘soft on crime’ from political opponents, rather than treat such a case sole on its merits, a risk that increases substantially in cases where a prisoner has attracted particular public notoriety.

Bridge’s reference to the powers of the Home Secretary having been ‘eroded’ is, to say the least, unfortunate and gives a wholly biased view of the actual situation; one in which the authority of the system in dealing with the release of prisoners from discretionary life sentence has not been eroded at all, merely transferred from a politician (the Home Secretary) to an independent body (the Parole Board) – in fact his central complaint throughout seems to be that the buck has been passed to a system that is currently ill-equipped to cope with such complex and difficult decisions and that it is, therefore, somehow unfair to expect the Parole Board and Probation Service to ‘carry the can’ for its failings this case. To be fair, this may not be quite what Bridges intended – one cannot entirely tell – but it is certainly what has been made of his report over the last few days and, as such, he has to be bear some responsibility for what is, at best, a lack of care in his choice of how to present certain matters; for example the passage cited above could be readily interpreted as a call for the restoration of the Home Secretary’s executive powers in relation to the release of prisoners serving life sentences despite the fact that what is actually required to address many, if not most, of the ‘legal’ issues raised in the report is merely that the system ensure that such decisions are dealt with by a competent authority.

In actual fact, the obvious and, to my mind, most effective response to that Bridges raises here would be simply to ensure that the interests of the ‘the public, victims, and Home Secretary’ are also represented by legal counsel, ensuring a level playing field for both sides, although whether this would have assisted in this particular case is another matter entirely, given the main problem here was the failure to adequately assess the risk that Rice continued to pose, even after 15-16 years in prison.

Bridges’ report seems, to me at least, to consistently overplay the significance of the Human Rights Act in relation to this case and as a result one cannot quite shake the feeling that there is more to this than meets the eye. There is a growing culture both within and outside the criminal justice system which seems to hold that ‘it’s because of the Human Rights Act’ is an acceptable response to any and ever criticism of the system’s failure to live up to public expectations ranging from release of prisoners who constitute a risk to the public to the failure of community police to stop kids playing football in the street – yes, I have actually been a community meeting where a police officer has cited the Human Rights Act in response to just such a question from one householder.

Only today the Sun leads with the usual screaming headline ‘Raped by the Law’ as a result of a case in which a now convicted rapist carried out one of the attacks for which he has been sentence to life imprisonment after being freed on bail while awaiting for two other attacks, and while the Sun’s report makes no direct reference to the Human Rights Act – it’s not as if such cases didn’t happen before the Act was introduced, there have been bad calls on bail applications for as long as the system has existed – the Sun still manages to implicitly link this case by running the following two ‘Sun Says’ editorials one after the other:

Crime Chaos

AS CRIME statistics go, they are truly terrifying.

Each month, 7,846 criminals on probation are committing an average 10,206 new offences.

Worse still, the true figures are likely to be even HIGHER as these numbers refer only to crimes that have been solved.

What is the point of releasing prisoners supposedly under the watchful eye of the probation service if they carry on murdering, raping and robbing?

The Home Office has forgotten it is supposed to protect the public from violent criminals.

If our prisons are too full, there’s a simple solution: Build more.

Former probation officer David Fraser, who has written a book on the crisis, warns: “The service is supervising offenders who are engaged in a constant orgy of re-offending. Why does the Government allow this to continue?”

It’s a good question.

One which new Home Secretary John Reid needs to answer.

Before he sorts out this sorry mess.

And…

Time to Act

AT LAST Tony Blair admits he needs to do something about the ludicrous Human Rights Act.

He wants the Government to have the power to overturn judges’ barmy rulings where a criminal’s so-called rights come ahead of their victim’s.

The PM says this is one of his “most urgent policy tasks”.

He’s not kidding.

While this is certainly a step in the right direction, we’ll wait to see if these pledges turn to action.

And rest assured, The Sun will continue to fight for the scrapping of this disgraceful piece of legislation.

Obviously the full significance of permitting politicians to overrule a decision taken by a court – political interference in judicial matters being one of the hallmarks of a totalitarian state – is completely beyond the understanding of Rebekah Wade et al.

It is categorically not the ‘Human Rights culture’ that British citizen’s should be concerned about but the growing anti-Human Rights culture that is being spread by the media, politicians and public servants, a culture that is based on the lie that our fundamental rights and liberties can be neatly packaged and parceled up into contending ‘rights for foreigners/criminals, etc’ and the rights of everyone else – the two are one and the same as people will inevitably find out the hard way if we permit things to continues down the road that politicians and the press seem, currently, to be set upon.

At times like this we would all do well to remember the words of Pastor Martin Niemoller*

When Hitler attacked the Jews I was not a Jew, therefore I was not concerned. And when Hitler attacked the Catholics, I was not a Catholic, and therefore, I was not concerned. And when Hitler attacked the unions and the industrialists, I was not a member of the unions and I was not concerned. Then Hitler attacked me and the Protestant church — and there was nobody left to be concerned.

* This version of Niemoller’s oft-quoted speech appears in the Congressional Record, 14, October 1968, page 31636, which appears to be the only contemporaneous record of his having made this statement. However even the accuracy of this version has been disputed by an employee of the US House of Representatives who claims that "stuff is just put into it [the Congressional Record] by Members of Congress and is not checked for accuracy, or even truth.".

Niemoller’s comments are more commonly cited in this form:

In Germany they first came for the Communists, and I didn’t speak up because I wasn’t a Communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists,
and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics, and I didn’t speak up because I was a Protestant. Then they came for me – and by that time no one was left to speak up.

The source claimed for this version is a speech by Niemoller at Columbia Theological Seminary in Decautur,  Georgia in either 1959 or 1960 and is frequently cited as the definitive version on the basis that the order given; Communist – in some versions given as ‘socialist’ or followed by a separate reference to the Nazi’s coming for the socialists – Jew, Trade Unionist and then Catholic more accurate reflects the historical order in which these groups were targeted by the Nazi’s.

It seems likely that Niemoller gave this speech on several occasions – why waste a good line – giving rise to these variations on his central theme.

3 thoughts on “In Britain they first came for the foreigners…

  1. No case law of the European Court of Human Rights is binding on the UK courts, nor has it ever been. Under the Human Rights Act, the courts must merely take it into account. Thus, all of the “binding force” of such a case solely derives from the Act giving effect to the convention rights, and the judgment of the ECtHR being a correct interpretation of the convention and its application to the UK situation. It is possible for the ECtHR to make mistakes, as in the case of Osman v UK (where it misunderstood the process of striking out), or Pye v UK where the court essentially offers no reason for its judgment that the law of adverse possession in registered land before the Land Registration Act 2002 is contrary to the convention.

    More important than the status of human rights law in the UK is the fact that Sullivan J’s findings in the case of the Afghan Nine amount to a finding (based on the summaries of the judgment available in the All ER digest and Lawtel) that the Home Secretary had acted for an improper purpose. On that basis, without the Human Rights Act, his actions would still have been quashed. Indeed, it is unclear from the digest (the judgment has not been made available as of last night, nor reported other than as a digest) whether the decision relied on the Human Rights Act at all.

  2. Good piece – but Sun readers would probably prefer Half Man Half Biscuit’s more ironic take on Niemoller in ‘Turn a Blind Eye’: ‘They came for Eamonn Holmes and I’m think I’m right in saying that I applauded’

  3. Pingback: Ephems of BLB

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