CROOKS' CHARTER
Churchill’s vision was for a law to shield the weak. So has human rights law worked, or is it a weapon for the dregs of society and a veritable...
ON December 5, 1999, handsome 18-year- old Barry Wallace, who worked in a Kilmarnock supermarket and had hopes of a career in the Royal Navy, failed to return home after a festive night out with workmates.
On October 12, 2001, despite determined efforts to elude justice, including escape to the Netherlands, sometime college lecturer William Beggs, 38, was convicted of the youth’s murder.
Somehow Mr Wallace had been lured back to his flat, handcuffed by the wrists and ankles, stabbed repeatedly with a needle and assaulted in ways too brutal and disgusting to detail in a family newspaper. Chunks of him ended up in Loch Lomond, while his severed head was tossed almost casually off an Irish ferry.
On Tuesday at the Court of Session in Edinburgh, Judge Lady Stacey ruled that Beggs’s human rights had been violated by prison staff who opened his mail. She found for the ‘Limbs in the Loch’ murderer by the lights of the European Convention on Human Rights (ECHR), enthroned by the Labour Government in 1998 as the Human Rights Act, which guarantees everyone the right ‘to respect for his private and family life, his home and correspondence’.
The judge declared ‘that the prisoner’s rights under Article 8 have been breached, that he is a victim; and I will hear counsel on whether a declaratory or any other remedy is necessary at a date to be fixed’.
Nobody mentioned Barry Wallace. And for most of us the idea that any letters sent to a convicted criminal serving a prison sentence, other than from his lawyer, should be held sacrosanct comes as a shocking surprise.
Yet Lady Stacey’s judgment is just the latest to bring the ECHR into disrepute in Britain. The long and baleful struggle against deportation of Abu Hamza, for instance, devoured year upon year and cost the public a fortune.
Hamza is not even British. Born in Egypt in 1958, he arrived here in 1979 on a student visa, later enthusing over the United Kingdom as ‘a paradise, where you could do anything you wanted’.
He duly vaunted his gratitude, from his 1997 appointment as imam of the Finsbury Park mosque, by denouncing British values at every opportunity. When he was quite properly removed, at the behest of the Charity Commission, he continued to preach hate outside its gates.
The hook- handed cleric praised Osama bin Laden and gloried in anti-Western atrocity. In 2006, Hamza was convicted of 11 criminal charges, including incitement to racial hatred, soliciting murder and possessing assorted handbooks in practical terrorism, and was sentenced to seven years in prison.
THE shambling warmonger had ‘helped to create an atmosphere in which to kill has become regarded by some as not only a legitimate course,’ declared Mr Justice Hughes, ‘ but a moral and religious duty in pursuit of perceived justice…’
From May 2004, the American authorities had been seeking Hamza’s extradition on further, still more serious terrorist charges, yet time and again his lawyers invoked the ECHR. His removal to the US was duly blocked in July 2010 and again in September 2012.
It later emerged that Hamza had lied about his means to win legal aid and spent thousands on the private education of his children. By 2009, it was reliably calculated that the longsuffering taxpayer – between legal costs, council housing, child-benefit and so on – had already bankrolled Hamza and his family by some £2.75million.
It was October 5, 2012 before Abu Hamza was at last put out of our misery and flown to the United States. In January this year, he was sentenced to life in prison without possibility of parole after conviction on 11 grave charges.
Yet even this was the express checkout when you remember just how long it took us to kick out Abu Qatada, first detained in 2001 and finally removed to face charges in Jordan in July 2013.
The cost to the public purse has been reckoned between £20million and £30million. It had taken six successive Home Secretaries and more than a decade to get rid of him.
And that was scarcely the first outrage. In June 2004, an immigration court ruled that nine Afghan asylum seekers must stay in Britain as, under Article 3 of the ECHR, they could not be returned to Afghanistan and perhaps exposed to ‘inhumane or degrading treatment’.
It apparently did not matter that the Taliban (from whom these people professed to be fleeing) had been toppled two years earlier by British blood and treasure, nor that they had hijacked a plane, with guns and high explosive, to fetch up here in the first place.
Even Tony Blair, who in 1998 happily enshrined the ECHR in our law, professed to be ‘ in despair’. Charles Clarke, the Home Secretary, was adamant they should not be given leave to stay, saying it was a ‘licence to hijack’. But on final appeal in 2006, the Afghans and their families won permanent residence in Britain and the Home Office was rebuked by the court – and ordered to pay enormous legal costs.
In Scotland we have seen several dramas that have helped to reinforce cynical public perception of the Human Rights Act as a ‘crooks’ charter’. We have had protracted legal action over the enormity of occasional bucket sanitation in our older prisons (‘slopping out’), and the bid for jailed offenders to be allowed to vote.
The Act was expressly embedded i n the l egislation that established devolution and the Scottish parliament – one reason why, given the SNP insurgency, the Prime Minister and his government have soft-pedalled a manifesto commitment to replace it with a straight Bill of Rights.
But there are cases more repugnant still. In November 2003, 12-year-old Amy Houston was run over in Blackburn, Lancashire, and left to ‘die like a dog’ under the wheels of a car driven by Aso Mohammed Ibrahim, an illegal immigrant.
The Iraqi – driving while disqualified after five previous convictions – ran away, not even raising the alarm. His asylum case had l ong since been rejected. He served only four months for killing Amy – and on release committed yet further offences. Yet efforts to deport him took so long that he managed to father two children.
EVENTUALLY immigration judges ruled that Ibrahim, on account of his fecundity and despite his inability to speak English and his incessant offending, could not be thrown out of Britain because, under ECHR, it would ‘ breach his right to a private and family life’.
Paul Houston, who had lost his only child and whose own family rights counted for nothing before the courts, denounced the judgment as ‘an abomination to a civilised society’ and
the Human Rights Act as ‘nothing more than a charter for thieves, killers, terrorists and illegal immigrants’.
The European Convention on Human Rights is frequently associated with the European Union, but in fact it is quite distinct and significantly older. The 18 articles of this international treaty detail the inalienable r i ghts and freedoms afforded to all.
It was drafted in response to exuberant demands by Winston Churchill in 1948 for unequivocal rights ‘guarded by freedom and sustained by law’, and was strongly coloured by the recent and dreadful experience of Nazi Germany and the Second World War.
The convention is guaranteed by the European Court of Human Rights and overseen by the Council of Europe, wholly separate from the EU. Britain was instrumental in establishing the council and drafting the convention. The problem lies in the way it was incorporated into British law.
Given our doctrine of Parliamentary sovereignty, which prevents any Parliament from ‘binding’ a successive one, or judges from overruling its legislation, there has been much unease in high places about the carelessness of the 1998 Act and i ts easing of ‘ j udicial law-making’.
For centuries before ECHR, from Magna Carta to the Glori- ous Revolution, Britain has had strong traditions of popular liberty and limited government, and accordingly has met with very few defeats in the Court of Human Rights – just over one in a hundred of all actions raised. Of the 12,000 applications made against the UK since 1999, only 3 per cent were even deemed admissible by the European Court of Human Rights.
WE can now see that, in some key regards, ECHR has impacted on our land for the better. It has prevented our police from storing in perpetuo the DNA of innocent people, and denied them indiscriminate powers of stop and search. It put an end, three decades ago, to corporal punishment in our state schools.
It has outlawed servitude (such as the ‘bonded labour’ of British agriculture, even in living memory), underpinned elementary gay rights and guaranteed some very important journalistic ones, such as the protection of sources.
But there are three problems. One is the ‘function creep’, perhaps inevitable, of legislation drafted nearly 70 years ago amid the rubble of the Third Reich. Article 8 must be understood in the context of appalling Nazi totalitarianism that, for instance, forbade interracial marriages, allowed the State to seize children f r om t heir parents or even to recruit them to spy within the home.
It was never envisaged that ECHR might be interpreted to underpin the British sweet life of so disgusting a criminal as Aso Mohammed Ibrahim or, as is happening right now, to be hauled into unconvincing plea in Italy to force that country to accept same-sex marriage.
Nor could Churchill and his contemporaries have foreseen what is now a veritable industry in human rights law, in a generation far more concerned with its liberties than its duties, and its r i ghts r ather t han its obligations.
Who among us has not been pestered, via text message or telephone or email, by shady organisations offering to win us compensation for an ‘accident’ we cannot even remember?
Yet all this has come to pass because of ECHR. And it is because we in this country are free from compulsory military service, the need to carry identity cards and other inconveniences inflicted on our Continental cousins that most of Britain’s real scrapes with the ECHR have centred on our prisons and convicted criminals.
In recent years the SNP has emerged as a particularly vocal supporter, partly because the Nationalists since the early 1980s have enthused over any- thing European and because it suits immediate SNP interests to paint the Cameron administration in as illiberal, Rightist and authoritarian a light as possible.
The Nationalists, besides, rely cynically on a dog-whistle approach to the general public, hoping that ordinary Scots will hear only a distant Tory bid to take away ‘rights’.
Last October, when Chris Grayling outlined Tory plans to replace Labour’s Human Rights Act, the SNP’s perennially unimpressive Pete Wishart declared: ‘The proposals fail to even mention or explain how they would apply to Scotland.
‘A Tory government at Westminster, unelected by Scotland, will attempt to force this on the people of Scotland and we cannot allow that to happen.
‘Human rights are central to the laws of Scotland – and we should be doing everything we possibly can to ensure that the threat posed by these Tory plans is ended and human rights remain in place for everyone…’
SUCH scaremongering apart, Mr Wishart blithely ignored what is now grave and wholesale concern. Hamza, Ibrahim, the court’s war on whole-life sentences and the besought enfranchisement of felons have served to bring the ECHR into disrepute, to make our courts look ridiculous and gravely undermine public confidence.
The previous Coalition government’s flailing inability to get Abu Qatada out of the country (the French, one suspects, would have curled a lip at ECHR and simply bundled him onto an aircraft regardless) only served to suggest that Parliament and our politicians are powerless.
What was soberly erected as a bulwark against the worst excesses of the corporate state has somehow mutated into a weapon for essentially unaccountable judges and the worst follies of judicial activism – and the more so in Britain, where we lack a written constitution.
So far the Cameron administration, perhaps startled by its unexpected overall majority, is moving with uneasy caution. Any adjustment of the devolution legislation is self-evidently fraught. The sort of self- conscious, right- on liberals who one can trust to be wrong about any given subject are already chaining themselves to the railings of ECHR, and there may not be a majority for reform even on the Tory benches.
Few anticipate any action this side of the EU referendum. But there is a desperate need for wholesale reform of the 1998 legislation – ideally, its repeal, and prompt replacement with a detailed Bill of Rights (and delineated responsibilities).
The fundamentals of ECHR would be ring-fenced, while clear criteria would end its more ludicrous abuses in court.
It is high time to give rights back to the great, law-abiding majority who have done nothing wrong – and put a firm end to a human rights industry that has grown sleek and fat in vaunting the comfort of criminals over the safety of the British public.