Rights and Wrongs

Jon Holbrook writes:

In 1997, the then UK Lord Chancellor, Lord Irvine, introduced the Human Rights Bill into parliament. In a lecture given at the time he claimed the bill would be of major significance ‘protecting the individual citizen against erosion of liberties’. Lord Irvine’s words were shared by many who considered themselves to be champions of liberty.

The events of 9/11 were soon to put Lord Irvine’s claim to the test. In 2001, the New Labour government introduced detention without charge but then replaced it, after legal challenges, with control orders in 2005. The Liberal-Conservative coalition government has now announced, after several more legal challenges, that control orders are to be replaced with what many are calling ‘control orders lite’. But contrary to Lord Irvine’s claims, the Human Rights Act has not protected the individual citizen against an erosion of liberties. In fact, it has empowered the courts to become closely involved in shaping the curtailment of liberty.

Detention without charge was promptly challenged by detainees relying on the Human Rights Act. The Anti-Terrorism Crime and Security Act 2001 allowed foreign nationals who were ‘suspected international terrorists’ to be detained indefinitely. This provision was a gross breach of civil liberties: detention on an indefinite basis, detention without proof of any crime, detention on the basis of a suspicion, and detention without the detainee having to know either the case or the evidence against him.

So when several of the detainees in Belmarsh prison challenged their indefinite detention, by relying on the Human Rights Act, Lord Irvine’s claim was put to the test. The detainees won the case but not on any basis that struck a blow for civil liberties. The House of Lords, in what became known as ‘the Belmarsh case’, found the detention unlawful on the basis that it was disproportionate to the state’s needs, which was human rights speak for saying that it was not wrong in principle. As the court put it, the measure went further than was ‘strictly required by the exigencies of the situation’.

In so far as any clear principle can be distilled from the 100-page judgment from nine judges, it is that the measure was discriminatory because it could only be applied to foreign nationals. Baroness Hale made the discrimination point by hypothesising about the injustice of legislation that proposed to lock up black, disabled, female or gay suspected international terrorists but not white, able-bodied, male or straight suspected international terrorists. As another judge pointed out, this gave ‘the impression that all that was necessary was to extend the power [to detain] to United Kingdom citizens as well’. The House of Lords came close to holding that an erosion of civil liberties would be tolerated so long as the erosion was non-discriminatory.

The government took its cue from the House of Lords and introduced new provisions, under the Prevention of Terrorism Act 2005, which did not discriminate on grounds of nationality. Control orders, as they are called, can be made against foreign and British nationals. Unlike detention without charge, control orders do not provide for detention in prison, but the controlee can be subjected to any number of restrictive measures that render him subject to a form of house arrest. Typically, the controlee is required to live at a particular address, is subject to a curfew, and his associations are restricted.

Control orders constituted a further erosion of civil liberties: control on an indefinite basis, control without proof of any crime, control on the basis of a reasonable suspicion, and control without the controlee having to know either the case or the evidence against him.

Control orders have resulted in further legal challenges, but none of them has found the control-order regime to be unlawful. Following three House of Lords rulings in 2007 in which several controlees relied on the Human Rights Act, the then minister of state for security, Tony McNulty MP, was correct to claim that the courts have ‘endorsed the principles of the control-order regime’. The then home secretary, Jacqui Smith, claimed in the wake of the judgment that she was considering strengthening some of the existing restrictions.

Having resolved the issue of principle in favour of control orders, subsequent cases have shown the extent to which the courts have become involved in shaping the nature and extent of the controls. The personal nature of this type of enquiry is readily apparent from the Supreme Court’s most recent consideration of a control-order case. ‘AP’ was a controlee who was subject to a 16-hour curfew and was required to live at a specified London address until the home secretary required him to live in the Midlands, some 150 miles from his family. The Supreme Court grappled with the fact that on being moved to the Midlands ‘his mother has not visited him at all’, which ‘is just as upsetting for his mother as it is for him’. Apparently, the mother could not visit her son ‘because she has never left London alone’.

The judgment noted ‘another significant hardship for AP [in that it] is difficult for him to feel part of the local community [and] no one in the mosque has welcomed him into the community, or asked him how he finds the area or even what his name is’. And although AP, an Ethiopian, ‘has spotted the occasional Ethiopian… he has not tried to befriend them because he does not want to burden them with his problems. He goes to the gym, but people there see his tag and naturally think that he is a criminal’.

The court’s detailed consideration of AP’s welfare needs shows the extent to which issues of principle about civil liberties are not relevant to the court. Under the Human Rights Act, avoiding social isolation is far more important to the courts than upholding civil liberties.

The Lib-Con government’s Review of Counter-Terrorism and Security Powers carries on from where courts have taken the argument. The review notes the ‘extensive litigation’ which has considered the human rights of a right to liberty (Article 5) and a right to a fair trial (Article 6) and notes that ‘a number of [control] orders have been imposed and upheld by the courts’. The point that troubles the government about control orders is the one that troubled the Supreme Court in the AP case – namely the ‘significant impact on an individual’s health and personal life and their ability to go about their normal lives’ and the fact that ‘relocating an individual to a different part of the country raised particularly difficult issues’. So in forthcoming legislation we can expect control orders by another name, which continue to curtail a person’s liberty without proof of any crime, on the basis of a reasonable belief that the person has been involved in terrorism-related activity, and without the person having to know either the case or the evidence against him. Whatever these orders end up being called, it is clear that they will have been shaped by lawyers and judges wielding the Human Rights Act.

It is not surprising that the UK Human Rights Act has been an ineffective tool in safeguarding civil liberties as there is no provision in the Act, or the European Convention on Human Rights, which the Act gives domestic force to, to outlaw control orders or their intended successors. The Act requires the courts to be satisfied that a particular measure is ‘proportionate’. But ‘proportionality’ causes courts to shape the scope of restrictive measures rather than to declare them unlawful.

Civil liberties are important because of what they establish about freedom. They create a framework within which the individual has freedom such as the freedom to speak, associate, live or work as he chooses. These freedoms are so important that their curtailment by the state should require the sanction of a judge and jury, satisfied of guilt beyond reasonable doubt, sitting in a criminal court. Control orders foster a culture in which personal freedom and liberty are seen as less important, as something that can be taken away providing the secretary of state and a judge find it proportionate.

Civil liberties and human rights have different qualities. Civil liberties are directed at curtailing the state’s power, whereas human-rights claims invariably seek to invoke more state power. Civil liberties aim to protect individual freedom, whereas human-rights claims invariably aim to regulate human behaviour. Civil liberties are premised on a belief in human rationality, whereas a human-rights culture and the legal regulation that flows from it are invariably premised on the belief that individuals are vulnerable and not resourceful. This can readily be seen in the AP case where AP and his family were treated as so lacking in resourcefulness that the Supreme Court seemed concerned solely by the alleged difficulties that AP had in making friends and going to the gym and that his mother had in getting a train to the Midlands.

‘Control orders lite’ may turn out to be a less intrusive form of control order. But this will be a reform induced by a concern about the welfare, vulnerability and perceived weaknesses of controlees. This reform will not be a shot in the arm for civil liberties.

No doubt further legal challenges involving the Human Rights Act will be brought against ‘control orders lite’. But whatever the outcome of these legal claims, the real fight for civil liberties will not take place in the courtroom and it will not be won by learned counsel with erudite arguments before judges. A human-rights culture may enable AP to make trips to the gym, but it will not protect the individual citizen against an erosion of liberties.

These rulings, like those of the ECJ or the ECHR, should have no effect in the United Kingdom unless or until ratified by resolutions of the House of Commons, itself elected by a more representative system from among candidates selected in a manner involving the whole electorate.