Deportation and Human Rights

Comment piece on the dangers of diluting the Human Rights Act

by Trevor Phillips, Chair of the Commission and Geraldine van Bueren, one of our Commissioners and Professor of International Human Rights Law at Queen Mary, University of London

This comment piece appeared in the Sunday Times on 23 May 2010

Deportation and Human Rights

You would expect the Equality and Human Rights Commission, as the legally appointed guardian of our human rights legislation to take a dim view of suggestions in recent days that it should be diluted. But this isn't because we fear for our own status or position; it's because we believe that it plays straight into the hands of the enemies of freedom. Osama Bin Laden will be chuckling at the reaction to the Special Immigration Appeals Commission’s decision not to deport Abid Naseer, a Pakistani student suspected of terrorist activity.

Critics of the Human Rights Act have seized the opportunity to repeat their calls to bin it. They may, for the moment, have been thwarted by the decision to launch a government commission.  But we think it's important to explain that those who stand on the other side of this argument are just as alive to the threat to our security.

The core strategy of the terrorist has never been to win a military victory. They are smarter than that. From the Russian 19th century anarchist, through the Baader-Meinhof Gang to today's Islamist hardliners, the aim has always been to undermine the self-confidence of a free society to such an extent that its citizens voluntarily abandon their own freedoms. Nothing could more fully represent their triumph than this country being panicked into weakening its legal protection for human rights.

Those who support Al Qaeda would trumpet the choice of fear over freedom as their biggest coup yet - their internet blogs would call it the first step towards the European Caliphate they desire.

None of us in the Commission is under any illusions about the terrorist threat to our country's way of life. We know that our freedoms have to be protected, often against people who do not play by our rules. 

And for us this isn't an abstraction.  The reports of the plans of Naseer and his gang suggest that one their planned targets would have been the Arndale Centre, which houses our own office in Manchester; a successful attack could have murdered or maimed  of over two hundred of our own colleagues.

So our abhorrence for, and opposition to, terrorism are absolute. But we do not believe for one moment that abolition or weakening of the human rights act will do anything to protect us.

It is of course ahistorical to look at human rights primarily through the prism of terrorism.  The original point of the European Convention on Human Rights, parent to the Human Rights Act, and drafted in part by British lawyers fresh from the conflict with Nazism, was to protect a British tradition of individual liberty that stretches back to Magna Carta. 

Today, Britain’s Human Rights Act defends freedom of association and expression.  It has helped secure dignified and decent treatment for some of society’s most vulnerable people.  It forms the basis of the legal arguments which have for the moment suspended the extradition of Gary McKinnon accused of computer hacking in the USA.

The Act has even played a role in supporting our armed services in their battle against terror.  The recent legal case of Private Jason Smith, supported by the Commission, has underlined the right of soldiers in the front line to decent training, equipment and medical care. 

We would squander this legacy to our great cost.  Indeed, we in the Equality and Human Rights Commission believe that if there is to be any reform of this country’s rights framework, the right response to terrorism is to strengthen and build on what we have in place already - to aim for 'Human Rights Act plus.'

Scrapping the Human Rights Act is precisely what Al-Qaeda and their ilk want.  In as much as they have a coherent agenda, hardline Islamists dream of establishing a Caliphate in this country.  What better way to start than by provoking us to scrap our historic legal protection for freedom of conscience? Their great victory would be to make us resemble a little more the kind of repressive theocracy they favour.

None of this is to deny that the deportation decision leaves us with a significant problem.

In truth, the tribunal had little choice. Every survey of public opinion we have carried out tells us that the British public support an absolute ban on torture by a massive majority.  The United Nations Convention Against Torture, which has been legally binding on us for over 20 years, forbids deporting people to another country when there are grounds for believing they might be tortured. 

But whatever the legal imperatives, it simply cannot make sense to have a person freely walking the streets who, in the judge's own words, is an al-Qaeda operative and 'a serious threat to the national security of the United Kingdom.'  The depth of public outrage is understandable.

The hard question for those of us who want to defend human rights is whether – if, as authorities appear to have decided, prosecution is not a viable option - the preservation of the Act is consistent with an effective response to the threat of terrorism. 

The answer is yes.  The majority of the rights enshrined in the Act are not absolute, they are qualified.  Where it is proportionate to do so, it is legitimate to modify the way that some of the rights of some individuals are protected in order to protect society as a whole.  No-one would argue, for example that the state should not be able, after a fair trial, to deprive dangerous or harmful individuals of their liberty.

In the case of contemporary terror, some of the evidence that security services rely on is not admissible in court.  To date, government’s favoured means for dealing with this dilemma are control orders. However, the goal should be a solution that is both robust and consistent with the principle of human rights.  It should not be beyond our collective imagination.
But whatever we do, the bottom line is this: a response to a contemporary challenge must not undermine the centuries-old struggle for liberties. 

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