Human Rights Act: Some questions for Mr Grayling and Mrs May

Craig Prescott 10.51am

Over the weekend, Chris Grayling, the Justice Secretary and Lord Chancellor, indicated that a Conservative majority government could repeal the Human Rights Act. Meanwhile, Theresa May, the Home Secretary, has suggested withdrawing from the European Convention on Human Rights (ECHR) itself.

These are two very different things, and there is some muddled thinking involved here; but if both were to be pursued the policy could be called ‘Withdrawal and Repeal’.

As Mr Grayling has admitted himself, there needs to be a lot of work put in to the detail (to put it mildly). But as work towards possible 2015 manifesto pledges starts, here are some questions and issues that need to be considered.

  1. Why? It can’t be for political advantage. At the last election, 3.1 per cent of people voted for a political party who advocated ‘Withdraw and Repeal’, namely UKIP. By contrast, a combined 52 per cent of the electorate voted for Labour and the Liberal Democrats, who did not. Whatever Mr Grayling and Mrs May may think, the electorate has shown time and time again disinterest in tinkering with constitutional matters. This does not look like a massive vote winner to me, in face of more pressing matters such as living standards and the broader economy.
  2. Replacement? A British Bill of Rights has been suggested, but to what end? The content of such a Bill of Rights is likely to be similar, if not identical, to the content with one or two additions (such as a right to a jury trial) to make such a document ‘British’. Take a look at the Articles incorporated into English Law by the HRA, the Right to Life, Prohibition of Torture, Prohibition of Slavery and Forced Labour and the Right to a Fair Trial and so on. Would you like to live in a country that does not provide in law for these  protections? As one of the finest judges of recent times, Lord Bingham stated in his book the Rule of Law, countries that do not make such protection in law tend not to the best of places to live. Belarus or North Korea? Another issue is how are the courts going to interpret any such legislation. Experience before the HRA suggests that on the whole, the courts will take notice of the ECHR, as they do of other international treaties and case-law for interpretative guidance.
  3. Leave it to Parliament? If ‘Withdrawal and Repeal’ is pursued, then the position will be more akin to the days before the HRA, but without a route of appeal to Strasbourg. This is a dangerous option, as it risks pitting the courts and Parliament in direct opposition. It is easy to think that human rights began with the HRA, but that neglects the strong - if imperfect - vein in the common law that protected people’s rights before the HRA. One could go back to the 17th century, but during the 1990s the courts began to recognise at common law certain rights as being of ‘fundamental’ status, such as access to justice. This fundamental status means that the courts require strong signals from Parliament before the courts hold that they can be interfered with. This is an open-ended category of right, creating a clear risk of an ongoing conflict between the courts and Parliament, potentially giving more scope to the courts, the exact opposite of what the Lord Chancellor, Mr Grayling, wants. Such an approach would be destined not to end well.

There are other issues to consider. The devolved institutions are required under the devolution framework to comply with the ECHR at all times. Any amendment of this requirement is likely to require their approval, which the Commission on the Bill of Rights indicates will not necessarily be forthcoming as approval of the ECHR is generally seems to be higher outside of England than within it. (This raises concerns that the Conservative Party becoming ever more an English, and not British Party). Further, the EU is engaged in an ongoing process to become a signatory to the ECHR, meaning that even if ‘Withdraw and Repeal’ is pursued, the ECHR will still be a highly relevant to UK law as long as Britain remains a member.

All of the above is not to say that the human rights architecture of the UK and Europe is perfect. Far from it. There are issues over the length of time it takes to hear cases, and the number of appeals possible in human rights litigation are both issues about which courts themselves have voiced concerns. A close look at the process shows that the vast majority of the time, it is these problems which lie at the root of problems with human rights. After all Abu Hamza still got deported to America. Is it really necessary to embark on such a hazardous journey, jeopardising a central tenet of the unwritten constitution that Parliament and the courts respond to each other in a dialogue and understanding, to solve a problem which for the vast majority of the electorate is simply not there?

Ultimately, the problem that Mr Grayling as Lord Chancellor (who has a duty to uphold the rule of law) needs to grapple with is that some human rights are innate in the liberal democracy to which he wishes to belong and to strengthen. Any human rights apparatus constructed does not create rights but merely recognises them.

Craig Prescott is a member of the School of Law at the University of Manchester. Follow him on Twitter @craigprescott

What House of Lords reform tells us (encouragingly) about the House of Commons

Richard Ellis 8.27am

For centuries, the House of Commons had been intent on acquiring power. Blood was spilt and lives lost to secure greater authority for MPs. They became the foremost authority in the legislature and the chief seat of the executive.

Recent years have seen a near-total volte face. The House of Commons has been casting away its powers with an unbecoming incontinence. Whether to the European Union, to quangos or to the courts, MPs have hastened to jettison the rights for which their predecessors fought so long and so hard.

Who has the right to stay in this country? Who may vote? For how long can terrorist subjects be imprisoned? These are tricky subjects and they should be the subject of political discussion. The House of Commons should debate these points, have the necessary votes and pass the appropriate laws – and be subject to judgment at the ballot box.

MPs, sadly, have failed to take that line. Now the final decision on these and many other questions are taken miles away from any ballot box and often miles away from our own shores.

It is little short of pathetic that the Labour party should want a judge to hold an inquiry into the banking system. Banking reform is one of the most pressing issues of our time. Not only should the House of Commons be the prime mover, it should be chomping at the bit to be the prime mover. Labour MPs, however, want to sneak away from the fight and ask the wig-and-gown brigade to do the heavy lifting. Feeble.

The debate over the House of Lords, now delayed by yesterday’s decision to withdraw a timetabling motion that the Government knew it would lose, offers MPs the chance to stop this descent into impotent lethargy. Many of those who oppose this reform say that their main concern is the prospect of an elected House of Lords - with the greater legitimacy of a democratic mandate - challenging the supremacy of the House of Commons. It is a rare treat to hear that supremacy championed.

An elected House of Lords would indeed seek to challenge MPs.  It would, moreover, be right to do so; if you have a democratic mandate you are duty-bound to seek to have your way. Hence this Bill, which passed its Second Reading last night despite a Tory rebellion of 91, would lead to constitutional chaos. That is just one reason why it must be thrown out.

Nonetheless, these reforms may have a positive legacy. It can only augur well if the idea of an elected House of Lords has reminded MPs how important any elected chamber (the Commons included) should be.

If the House of Commons has finally woken up and recovered the will to defend and advance its role in our constitution then we may yet owe a debt of gratitude to Nick Clegg. The European Union, the judges, the media, the bankers all have great power over the British state. They have all got much wrong, none are properly accountable and all could provide much work for our newly-active democratic representatives. A reinvigorated Commons could be just what the doctor ordered.

With any luck these reforms could be a footnote in the history of the House of Lords and a turning point in the history of the House of Commons.

Fingers crossed.

"Words, words, mere words", but Ken Clarke is correct about reforming Britain’s prisons

Nik Darlington 8.10am

The Justice Secretary, Ken Clarke, has an important article in the Guardian today, in which he blames the riots that swept English cities this summer on this country’s “social deficit” between mainstream society and a “feral underclass”.

Some people are dismayed by the language used. Be that as it may, dismay all you wish but I would wager that more people are horrified by the criminal acts in Tottenham, Croydon and elsewhere than some choice words of a popular old hand known for plain speaking. Actions speak louder than words.

For what it is worth, “feral” derives from the Latin ferus meaning “wild”. In turn, “wild” means “uncontrolled or unrestrained, especially in pursuit of pleasure” - an apt description of what occurred in English cities in August.

And Mr Clarke is not playing to any ‘nasty party’ gallery because he is writing in the Guardian, whose readers have not voted Tory since the 1950s; if it had passed you by, the Tory press and the Justice Secretary do not see eye to eye in many things beyond a penchant for beer and cricket.

More importantly, Ken Clarke writes that the underlying nature of the riots and the rioters must be a prompt for “radical reform”. Our prisons are places for punishment, of course, but there must be a heightened emphasis on rehabilitation.

Punishment alone is not enough… Locking people up without reducing the risk of them committing new crimes against new victims the minute they get out does not make for intelligent sentencing.

It’s not yet been widely recognised, but the hardcore of the rioters were, in fact, known criminals. Close to three-quarters of those aged 18 or over charged with riot offences already had a prior conviction. That is the legacy of a broken penal system - one whose record in preventing reoffending has been straightforwardly dreadful. In my view, the riots can be seen in part as an outburst of outrageous behaviour by the criminal classes - individuals and families familiar with the justice system who haven’t been changed by their past punishments.

I am introducing radical changes to focus our penal system relentlessly on proper, robust punishment and the reduction of reoffending. This means making our jails places of productive hard work, addressing the scandal of drugs being readily available in many of our prisons and toughening community sentences so that they command public respect. And underpinning it all, the most radical step of all: paying those who rehabilitate offenders, including the private and voluntary sectors, by the results they achieve, not (as too often in the past) for processes and box-ticking.

I have noticed some people lazily describing the Justice Secretary’s words as lacking depth and an understanding of underlying problems. Evidently, they read the sexy headline (probably chosen by the Guardian) about a “feral underclass” and bypassed the article itself, which if they had bothered to read might have found their answer.

However, reform can’t stop at our penal system alone. The general recipe for a productive member of society is not secret. It has not changed since I was inner cities minister 25 years ago. It’s about having a job, a strong family, a decent education and, beneath it all, an attitude that shares in the values of mainstream society.

Just in case the casual reader thought this was mere rhetoric, replete with the ethos of long-held experience, are coalition government policies such as deficit reduction, welfare reform, work programmes and liberalising our schools.

Rehabilitation must be the watchword of this Government’s penal reforms. After this summer’s riots, in which three-quarters of the tried perpetrators are reoffenders, that fact is staring us in the face more than ever.

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Justice reform: High prison populations are a sign of failure, not success

Sophie Willett 7.58am

The Howard League for Penal Reform welcomes the reforms proposed in the Government’s Green Paper, Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders. The Government is bravely addressing some tough issues that successive administrations since the mid-1990s have ignored.

We have been at the forefront of arguing that pressure on public spending presents an opportunity to re-frame the criminal justice debate in favour of reform. Prison numbers have more than doubled over the past decade. The exponential rise in the numbers sent to prison is nothing to be proud of. By the time somebody has gone to prison it is too late; the damage has been done; somebody has been a victim of crime.

It is perfectly possible to achieve less crime, with safer communities, and fewer people in prison.  During the 1990s in Canada, for example, cuts to public spending saw the prison population fall by 11 per cent. During that decade, crime also fell to its lowest rate for 25 years, including drops ranging from 23 per cent for assault and robbery to 43 per cent for homicide.

Social and economic factors contribute towards crime. The Howard League recently commented about an alcoholic man sent to prison for the seventy-third time for a short sentence. He stole drink to feed his addiction. What use is it to send him to prison for a few weeks over and over again, at an extortionate cost to the taxpayer? Of the 53,333 people jailed in 2008 for six months or less, 74 per cent were re-convincted within a short time of release. Most served an average of six to eight weeks at a cost of £530 million.

Alternatively, community sentences can be more effective and they save money. In 2008, the re-offending rate for community sentences was 36.8 per cent. Lower re-offending leads to lower costs for victims and and criminal justice agencies further down the line. Community orders are also cheaper as immediate solutions. On average, they cost a tenth of what it costs to send a person to prison for one year, which costs around £45,000. Most community orders enforcing unpaid work or directly tackling problems such as accommodation or alcohol cost between £2000 and £3,000 per year.

There should be changes to make community sentences more prompt and intense. While there is isolated good practice, too many community sentences do not take place for weeks or even months after a court conviction. Even then people are only expected to do the odd day here or there for many months, setting them up to fail. The sentences must be proportionate and brisk.

The Government plans to invest in drug recovery and improve links with the NHS to provide mental health services to keep people away from crime and the penal system; additionally, a review of the Rehabilitation of Offenders Act, so that people can get a job and rejoin society once they have lived crime-free; and increased judicial discretion for the sentencing of teenagers.

Prison has its place in ensuring public safety and managing dangerous offenders. Yet ever increasing prison populations are a sign of failure, not success. In recognising that the criminal justice system is a blunt tool, and that lasting solutions to crime lie outside the scope of the prison cell, the Government is taking a major step towards meaningful reform that will shape the way we respond to crime in the 21st century.

Sophie Willett is writing on behalf of the Howard League for Penal Reform, the UK’s oldest penal reform charity, founded in 1866.

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European judges discriminate against women for being better drivers

Craig Barrett 4.01pm

Tom Lehrer, the seminal satirist of the postwar era (still alive and teaching!) once said:

"The usual jokes about the Army aside, one of the many fine things one has to admit is the way that the Army has carried the American democratic ideal to its logical conclusion, in the sense that not only do they prohibit discrimination on the grounds of race, creed and colour, but also on the grounds of ability."

The European Court of Justice (ECJ) has just done exactly the same. Entirely missing the point that risk-based insurance has to be calculated on factors such as gender, age, location etc, they have ruled that, in effect, women must be discriminated against because of their gender. This flies in the face of all the statistics which amplydemonstrate - at the risk of alienating any Clarksonista readers - that women are safer drivers.

I suspect that the UK’s position on this is unique as I am not aware of any other European country which insures drivers rather than vehicles but what this judgement seems to show is how illogical was the approach to this case, as well as how far out of touch the European judicial process is becoming from the views of the British people.

This alienation is something that needs to be addressed, and quickly, before the pendulum swings too far the other way.

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As MPs prepare to vote on prisoners, is voting truly a human right?

Nik Darlington 6.32am

It carries no legally binding obligations. While the Government is being supportive of its intent, ministers do not have to follow it. However, tonight MPs will vote on the following motion:

"That this House notes the ruling of the European Court of Human Rights in Hirst v the United Kingdom in which it held that there had been no substantive debate by members of the legislature on the continued justification for maintaining a general restriction on the right of prisoners to vote; acknowledges the treaty obligations of the UK; is of the opinion that legislative decisions of this nature should be a matter for democratically-elected lawmakers; and supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand."

There are some unhelpful misconceptions doing the rounds about the votes for prisoners controversy, the most disingenuous of which is that the European Court of Human Rights (ECHR) is riding roughshod over British sovereignty by demanding that all prisoners are granted voting rights. The penalty for non-compliance being a raft of compensation claims via Strasbourg.

First, the Government has made it very clear that were it even to contemplate carrying this out - and through gritted teeth - not all prisoners would be allowed a vote. Ken Clarke stated on the Today programme yesterday that it was “nonsense” to think of votes for murderers and rapists.

Secondly, the ECHR ruling is not plenary. David Blackburn at the Spectator's Coffee House wrote yesterday that a number of EU nations strip prisoners of the vote and still observe European law. The ECHR requires clarification, not necessarily the policy itself.

So some sober perspective is desperately needed on this highly emotive issue. Saying that, it is to be hoped that MPs back the tabled motion tonight and the Government follows their lead, because this should not have anything to do with human rights.

Consider control orders, now under the farcical nomenclature of “terrorism prevention and investigation measures”, or Tpims, which sounds like a caffeinated summer cocktail. In vain, I supported their abolition because I believe that they do infringe human rights and natural law. The imposition of a control order - sorry, a Tpim - takes away someone’s inalienable rights.

On the contrary, not granting prisoners the vote does not infringe their human rights because you are not taking any right away. The vast majority of prisoners hold no voting rights now. I will go further than that, even. No single person, not even a prisoner, has a right to vote. It is a philosophical point but an important one. We are not born with a right to vote anymore than we are born with a right to live in a democracy. Incontrovertibly, such a condition is desirable. It is Locke’s ‘civil society’, living under a consensual government. But Locke does not say how we choose that government. We have a natural right to liberty but not to a vote.

Sources on the Conservative backbenches are confident that this motion shall pass. The Prime Minister agreed yesterday, saying, “It’s in our interests for Parliament to say ‘No thanks.’ That helps us.” Even so, that is no guarantee that the Government will maintain the status quo.

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