In the UK today, the idea of human rights is under attack from politicians and some sections of the media. The criticism largely relates to the application of human rights law within the UK, rather than the pursuit of human rights objectives through UK foreign policy. Indeed, there is often a serious disconnect between attitudes towards the two. The same UK newspapers and politicians that denounce human rights violations in Syria, Libya or Zimbabwe – and propose tougher action to address them - can be scathing about the relevance or application of human rights law and principles to UK domestic policy.
The critics appear to suggest that the UK’s protection of basic liberties is already sufficient through domestic laws and institutions and that it is somehow inappropriate or insulting to use a similar framework – that of human rights – to consider the treatment of people by the state in the UK, as we might for those living under dictatorships. They also argue that measures to promote human rights, notably the Human Rights Act, benefit the undeserving at the expense of society as a whole, including criminals seeking to evade punishment or foreign terrorists wishing to avoid deportation.
Much of this criticism is muddled, based on myth, distortion and anecdote rather than fact. It displays a worrying ignorance about what human rights are, as well as the extent to which UK lawyers and governments have contributed, over the last sixty years, to the development and advancement of human rights law internationally. These attacks are also deeply damaging, both to the protection of human rights for people living in the UK and to the cause of human rights across Europe and further afield. The UK cannot be a strong and credible champion for human rights across the world – as it claims to be – when many of its politicians and its newspapers seek to weaken the application of human rights law and to undermine the institutions that safeguard human rights for people living inside its borders.
This Q&A aims to address some of the more common criticisms and frequently raised questions about human rights issues within the UK, including the role of the Human Rights Act and the European Court of Human Rights, issues around the deportation of terrorism suspects and foreign criminals, how best to address allegations of UK complicity in torture and abuse by the UK security services and the armed services, and new UK government proposals to hold court sessions behind closed doors.
1. Would the UK be better off if the Human Rights Act was replaced by a Bill of Rights?
2. Should the UK be able to deport foreigners suspected of terrorism to their countries of origin if it obtains assurances that they won’t be tortured?
3. Should the UK be able to deport foreigners convicted of serious crimes in this country?
4. Should the European Court of Human Rights be able to overrule the UK Parliament and the UK courts?
5. Does the European Court of Human Rights need reform?
6. How should allegations of UK involvement in torture and rendition be investigated?
7. Should the Human Rights Act apply to the actions of UK armed forces overseas?
8. What's wrong with having court hearings behind closed doors?
In theory, a Bill of Rights could provide additional human rights safeguards or entrench a wider set of rights entitlements for those living in the UK, beyond those already set out in the Human Rights Act (1998) which allows those in the UK to assert their human rights in the domestic courts and obliges UK government agencies and the courts to respect human rights.
But most of those who advocate for such a Bill appear to be interested in diminishing not increasing human rights protections. They argue that the Human Rights Act is somehow alien to UK society and culture, and that it has led to the misinterpretation and distortion of human rights in ways which have brought few if any benefits to ordinary UK citizens, while making it harder to deal with problems of crime, illegal immigration, asylum and terrorism. It does this, in their view, by enhancing the power of unelected judges at the expense of Parliament, which is accountable through elections to the UK public, and by forcing UK judges to apply misguided rulings on human rights made by the European Court of Human Rights.
Much of this criticism of the Human Rights Act is ill-informed. The Act incorporates into UK law the European Convention on Human Rights (ECHR). This document – drafted in the 1950s with the support of Winston Churchill and very extensive UK involvement – is itself heavily influenced by UK legal traditions. The convention reflects the global standards on human rights such as the UN Declaration of Human Rights, that the UK helped shape and the international treaties that the UK has freely signed up to, along with most other countries across the world. The alleged “alien” nature of the Act is therefore particularly misplaced.
The Act gives effect to the rights in the ECHR, making it easier for those living in the UK to secure their basic liberties through UK courts rather than having to seek redress at the European Court of Human Rights, a process that can take years. The liberties in question are ones long valued in the UK, such as the prohibition of torture and inhuman treatment, free speech and peaceful protest, equal rights under the law, the presumption of innocence and the right to a fair trial.
The Act has already brought some clear benefits to people living in the UK. For example, it has been used to stop elderly couples from being separated and placed in different residential care homes, to secure accommodation for the survivors of domestic violence, to tackle discrimination experienced by homeless people and to prevent degrading practice in psychiatric hospitals, as well as in many other cases.
Far from giving UK courts the power to override Parliament, the Human Rights Act only permits courts which find domestic law to be in conflict with human rights to note that incompatibility to Parliament. It is for Parliament to decide whether and how to change the law.
The UK and, therefore UK citizens, actually have rather weaker judicial protection of their rights than in many, if not most other democracies, especially those with written constitutions. If the UK was to have a Bill of Rights like that contained in the US Constitution and its amendments, the British Supreme Court would be able to actually strike down laws.
A separation of powers between the executive and judiciary is a defining feature of a liberal democracy. Are the critics of the Act really suggesting that UK judges should not be able to constrain the government of the day when it seeks to act in ways that contravene its own legal obligations?
There is another critical question for the critics of the Act and the advocates of the Bill of Rights to answer. If the former is too broad, which rights from the ECHR are they proposing to delete?
The current UK government, like its predecessor, is a strong supporter of Deportation with Assurances – a policy which aims to allow the deportation of foreign terrorism suspects to countries where they would otherwise face the real risk of torture. Deportation of persons to torture would be a clear breach of the UK’s obligations under domestic and international law. The UK has agreed “memorandums of understanding” (MoUs) with Jordan, Libya, Lebanon and Ethiopia to permit deportation based on assurances of humane treatment upon return. It has also used informal assurances to remove terrorism suspects to Algeria and Pakistan.
While the UK courts have blocked some returns with assurances, for example to Libya (under the Gaddafi government) and Pakistan, on the grounds that they were unreliable, they have upheld deportations to Jordan and Algeria on the basis of similar assurances despite well-founded concerns about torture and other abuse of detainees. In assessing alleged threats to national security and risks to individuals on return, the UK government has relied on secret evidence not disclosed to the defendants or their lawyers of choice.
Human Rights Watch strongly rejects the use of Deportation with Assurances. We believe that assurances not to torture - given by governments of countries where torture is widespread and well documented - lack credibility and cannot be relied on. The risk that people sent back to these countries will be tortured and abused is a very real one. No country admits to torture, even or especially those countries where torture is widespread.
Furthermore, torture is committed behind closed doors, and many forms of torture are hard to detect, making it hard to determine when a country has failed to respect its promises. Moreover, both the UK and the countries to which people are sent have a disincentive for any information of ill-treatment to come to light. The UK government points to post-return monitoring arrangements, contained in the MoUs, as additional safeguards against abuse, but it fails to explain how such monitoring can prevent the risk of reprisals against them or their families in the event that detainees do report abuse.
The UK government has a MoU with Jordan, for example, and has sought since 2004 to deport the high-profile terrorism suspect Abu Qatada to Jordan. But Human Rights Watch has documented torture and ill-treatment there by the country’s General Intelligence Department since 2006, as well as torture in regular prisons and holding centres. The Jordanian authorities have continued during this period of documented abuse to deny that they practice torture, further weakening the value of any assurances given by them. In our judgment, findings by the UK courts and European Court of Human Rights that Qatada can be safely returned fail properly to engage with the flaws in the MoU system, and give undue weight to the assurances offered by Jordan.
A far better way of addressing this problem is to prosecute terrorism suspects like Abu Qatada in UK courts. Qatada has already spent more than 7 years in UK custody without charge or trial, the equivalent of the average time served under a 14-year jail sentence. If there is evidence against a suspect this should be tested in a court of law, with the court process leading to a conviction or the suspect's release. Another option is to extradite suspects to a third country where they could face a fair trial. At the same time, the UK should be working with countries that have poor records on torture, to help bring about far-reaching reforms to actually end the use of torture and ill-treatment and thereby make safe returns possible.
The UK has legal powers to deport foreigners convicted of a serious criminal offence, with a judge ordering deportation of a foreign national during the sentencing process. These deportations occur after the person has served his or her sentence in the UK. Human rights law only becomes relevant (with the courts intervening to prevent deportation) in three circumstances. Firstly, the UK courts can and should block deportation where the prospective deportee would face a real risk of death, torture or ill-treatment in the country of destination. The protection of these rights is so important that they should always override other considerations.
Secondly, the courts will and should intervene to prevent deportation on human rights grounds if the person has no prospect of a fair trial in the receiving country. The same principle applies in cases where a person’s extradition is sought to another country to stand trial there. The assessment of whether a fair trial is possible should be based on the individual case but also the receiving country’s record in respect of criminal justice. Ensuring the right to a fair trial is a cornerstone of a society based on the rule of law, as well as a long-established principle of the UK’s constitutional system.
Thirdly, human rights law can be invoked by the courts in respect of the right to a family life (i.e. the impact of deportation on the deportee’s partner or dependents or their long-established links with this country). In a very limited number of cases, the courts may decide to block deportation on this basis using human rights law. But it is important to note that this is not an absolute ban. The courts apply the principles of fairness and proportionality in reaching their decisions, weighing the potential harm to the individual, the individual's family, and the impact on society if they are permitted to remain, taking into account the seriousness of any crime they have been convicted for. This is appropriate and how it should be in a country governed by the rule of law and with a separation between government and judiciary.
Some proponents of replacing the Human Rights Act with a Bill of Rights argue that it would allow the UK to override these principles in order to remove foreign nationals convicted of serious offences, or to strike a different balance than the one called for in the European Convention on Human Rights. This argument ignore the fact that the prohibition of returns to death or torture and the requirement to assess the risk of unfair trial or interference with family life also exist in the international human rights conventions, like the International Covenant on Civil and Political Rights. The UK is legally bound by these treaties in much the same way as the European Convention on Human Rights
The UK is a founding member of the Council of Europe and one of the earliest signatories of the European Convention on Human Rights (ECHR). Indeed, the UK government in the early post-war years was instrumental in the creation of the former and the drafting of the latter. Like other members of the Council of Europe, the UK government is obliged to uphold the rights set out in the Convention. These rights also reflect international standards, set out for example in the UN Declaration on Human Rights and International Covenant on Civil and Political Rights.
The rationale for a European-wide convention and accompanying European Court of Human Rights is precisely to set high standards on human rights that apply to all across Europe, and standards that can be given practical effect. After the horrific human rights abuses in Europe in the inter-war years, such an institution was seen as a way to help safeguard essential liberties for all European citizens. And over the last fifty years, it has proved its worth, protecting and promoting rights for people across 47 countries in Europe.
The case law of the court has contributed greatly to ending commonplace torture in custody, in moving towards equal treatment for women and for lesbian and gay people, ending corporal punishment in schools, and in upholding the freedom of the media to publish articles in the public interest against the wishes of the authorities.
To suggest that the European Court of Human Rights should never be able to override rulings in national courts amounts to a call for its abolition. This would be a very extreme and retrograde step, welcomed by Europe's remaining autocrats and authoritarians, but removing a vital form of human rights protection for millions of Europeans. Most of the UK critics of the European Court and European Convention therefore stop short of this position, instead calling for radical "reform" of the Court and stricter limits on its powers and authority.
There is a case for reform of the European Court of Human Rights. In particular the court has a significant backlog of cases (more than 150,000). For that reason, the court itself has led the calls for reform and a reform process is well underway, designed to strengthen the work of the court by improving the implementation of judgements by national authorities (which can help reduce the large number of applications addressing similar issues) and addressing the very large backlog of cases. This process is a sensible one and deserves support.
But it is clear that some of governments in the Council of Europe see the reform process as an opportunity to limit the court’s jurisdiction or weaken its authority. An April 2011 declaration at a Council of Europe summit, for example, suggested that the court should refrain from hearing immigration cases other than in exceptional circumstances.
Some of the proposals put forward by the UK government, during its recent presidency of the Council of Europe, fell into this category and would have weakened not strengthened the court’s work in upholding human rights, limiting its ability to hear cases even when important human rights issues were at stake (especially worrying for Council of Europe countries like Turkey, Azerbaijan and Russia, where the national courts have a poor record of protecting human rights) and giving governments greater latitude to decide for themselves how human rights should be applied. Thankfully neither proposal secured enough support from other governments to be adopted. But the political and media pressure on the court over the past few years in the UK may have long-lasting and negative effects, inspiring wider pressure and attacks on it by other countries.
In assessing reforms to the European Court of Human Rights, it is vital to keep in mind that for many victims of human rights abuse in Europe, the European Court offers the only real chance for justice. Tackling the backlog by limiting access to the court for those who need it would undermine the very purpose of the court itself.
Human Rights Watch believes that there needs to be an independent inquiry into the UK's involvement in rendition and torture. We welcomed David Cameron’s announcement in 2010 that an inquiry would be established to look into this issue. However, it soon became clear that the inquiry lacked the necessary independence and the requisite powers to really get to the truth about the UK's role. The Gibson Inquiry, named after its chair, the retired judge Peter Gibson, suffered from two key defects. First, members of the security services (with the exception of the MI5 and MI6 chiefs) were to give evidence behind closed doors. This meant that there was no meaningful opportunity for those who were subject to torture, rendition or illegal detention (or the groups that documented these abuses) to challenge the official version of events. Second, the inquiry wasn't authorised to decide which documents or evidence to publish, with this power resting with government. It was because of these serious deficiencies that Human Rights Watch – together with the other organisations working in this issue and lawyers acting for the victims - decided not to cooperate with the inquiry.
Human Rights Watch welcomed the decision by the government in January 2012 to halt the Gibson Inquiry. The decision was in large part prompted by Human Rights Watch's discovery of key documents in the abandoned headquarters of Libyan Intelligence. These documents appear to show direct UK involvement in the rendition to Libya of two opposition figures and their families, where they then allege torture at the hands of Gaddafi's security forces. Criminal investigations are now underway in relation to both cases. But in addition to this process, it remains essential that the UK government should institute a credible, judge-led inquiry into the policy framework and failures that may have led to the UK's involvement in torture and rendition. References to the Gibson Inquiry and issues surrounding it in the 2012 annual Foreign and Commonwealth human rights report suggest that the government has yet properly to engage with the criticisms and concerns with the structure of the inquiry. Establishing a second inquiry on the same terms will produce the same flawed outcome. Human Rights Watch will continue to press strongly for an effective reconstituted inquiry with greater independence and stronger powers, as an essential step to restoring this country's moral authority and to prevent the recurrence of abuses that continue to stain the UK's reputation.
A number of cases of abuse over the past decade demonstrate clearly why the actions of UK armed forces overseas should be bound by the Human Rights Act and by the UK’s wider international human rights commitments. The most high-profile of these cases was that of Baha Mousa, who died in Basra, Iraq in 2003. Baha Mousa was healthy when taken into UK custody, but died there with multiple injuries from beatings. A postmortem showed Mousa had at least 93 injuries, including a broken nose and fractured ribs. An inquiry into his death condemned the lack of leadership, loss of discipline and moral failings of the 1st Battalion the Queen’s Lancashire Regiment in Iraq. While the inquiry’s highly critical findings were welcome and it made some important recommendations, it is important to note that this was not an isolated incident. There will be another inquiry (due to begin soon) into the alleged torture and killing of up to 20 people in UK detention in May 2004, whereas legal action continues under the Human Rights Act to force the government to hold a single public inquiry into the hundreds of other allegations of serious abuse by UK forces in Iraq.
This UK government and its predecessor have rejected the 2008 recommendation made by the UN Human Rights Council as part of the UK’s Universal Periodic Review (UPR), which said that they should “consider that any person detained by its armed forces is under its jurisdiction and respect its obligations concerning the human rights of such individuals.”
More significantly still, the European Court of Human Rights issued two judgements in July 2011 that affirmed the extra-territorial application of the European Convention on Human Rights. In the case of Al-Jedda v. the UK, the Court applied the Convention to rule that the UK had arbitrarily detained an Iraqi civilian for over 3 years in a UK-run detention centre in Iraq. In the case of Al-Skeini and Others v. the UK, it ruled that the UK violated the European Convention on Human Rights by failing to properly investigate the killings of five Iraqis by its forces there. The Court rejected the arguments put forward by the UK government that because the deaths occurred outside its territory it was not obliged under the European Convention on Human Rights to conduct an independent and thorough investigation into the circumstances of the killings.
Yet despite these landmark rulings, the UK government has yet to formally accept that human rights law applies to its acts anywhere in the world or to ensure a proper, independent inquiry into all these killings. It should do so - to bring its law and practice into line with the court’s ruling and to provide greater protection against future abuses.
The UK government is attempting to introduce far-reaching and disturbing reforms through the Justice and Security Bill. The Bill, which is before Parliament as this is written, would widen the use of secret hearings in the civil courts when national security grounds are invoked, excluding the person affected and his or her lawyer from the courtroom, thereby undermining a basic principle of justice: the ability to know the case against you. The Bill would also prevent disclosure of material showing UK involvement in wrongdoing by other countries. Earlier proposals from the government to permit inquests into suspicious deaths to be held in secret and to allow secret hearings on even broader “public interest” grounds have thankfully been dropped. But the proposed law remains highly problematic.
The proposals were first announced by David Cameron in July 2010, alongside plans for an inquiry into UK complicity in torture and rendition (see above), plus changes to the guidance given to security services about interrogating suspects held outside the UK. In making the case for these reforms, the Prime Minister said they were needed to because the security services were being “paralysed by paperwork” and that the UK’s relationship with the US was being put in danger by public disclosure of US intelligence material shared with London.
However the detail of the Bill makes clear that the intention of the government is to ensure that if abuses are repeated in future they will not see the light of day in UK courts. This approach mirrors that of the last government which fought tooth-and-nail for the British courts to prevent the publication of seven paragraphs of a court judgement in a civil case brought against the Foreign Secretary by former Guantanamo detainee Binyam Mohamed. The material that the UK sought to block had already been made public in the US courts. When it was published, the real reason for the strength of the UK government’s objections became clear – the paragraphs showed that the UK knew early on that Binyam Mohamed was being tortured, a deeply embarrassing revelation for the government.
It is possible that material might be considered by a UK judge in a future case heard under the act, but neither Binyam Mohamed’s lawyers, nor the media (who helped challenge the UK government’s efforts to block the earlier disclosure), nor the public would ever be aware of it.
Evidence continues to mount that the UK government was complicit in torture and rendition overseas. Yet if the government gets its way with this bill, such cases will be held behind closed doors, with the victims and their lawyers, journalists and the public excluded. This is not justice and, for this reason, Human Rights Watch strongly opposes these measures.