Wednesday, 7 June 2017

Reflections on Theresa May's human rights comments

Speaking to voters in Slough on Tuesday 6th June, the Prime Minister (Mrs Theresa May) said that she will make it easier to deport foreign terror suspects back “to their own countries” and would “restrict the freedom and movements of terrorist suspects” if re-elected on 8 June - The Independent 7th June 2017.  Mrs May referred to changing laws if they impeded efforts to fight the increasingly “complex” terror threat.  It was essential to ensure that the Police and Security services have the powers they need as the threat changes, evolves and become more complex.  Mrs May went on to say: “I mean longer prison sentences for people convicted of terrorist offences. I mean making it easier for the authorities to deport foreign terrorist suspects back to their own countries. And I mean doing more to restrict the freedom and the movements of terrorist suspects when we have enough evidence to know they are a threat, but not enough evidence to prosecute them in full in court.  And if our human rights laws stop us from doing it, we will change the laws so we can do it."

Allowing for election campaign rhetoric there was nothing exceptional in any of this until Mrs May referred to human rights laws.  After all, as discussed in my previous post, one would expect there to be a review and that such a review might lead to some changes. So, had Mrs May binned her party's manifesto?   What exactly did Mrs May have in mind?  We were left to guess!  Here are some thoughts.

The manifestos:

The Conservative manifesto said that the UK will remain a signatory to the European Convention on Human Rights "for the duration of the next Parliament."  While the process of Brexit is underway, the Human Rights Act 1998 will remain in place but the human rights legal framework will be considered when the process of leaving the EU concludes.  That could be as early as 2019 - i.e. 2 years after the UK's Article 50 notification.

The Conservative manifesto also contained a statement that under a future Conservative government  "British troops will be subject to the Law of Armed Conflict which includes the Geneva Convention and UK Service, not the European Court of Human Rights."  The manifesto gave no further detail as to how this might be legally achieved but perhaps the Party envisages a derogation in the event that troops are committed to action abroad. 

The Liberal Democrat manifesto commits to voting against any attempt to scrap the Human Rights Act or to withdraw from the Convention.  The Labour Party will retain the Human Rights Act - see their manifesto.


This is a legally complex area and some deportation cases have been very difficult.

The Abu Qatada case was one in which Theresa May invested a lot of political capital during her time as Home Secretary.  It was a long and complex matter but Abu Qatada (a Jordanian national) was deported to Jordan on 7th June 2013 following a Treaty between the UK and Jordan which prevented the use of evidence at a trial in Jordan if the evidence may have been obtained by torture - ("torture evidence"). The prohibition against torture (or inhuman or degrading treatment) is Article 3 of the European Convention on Human Rights and it is not permissible for a signatory State to derogate from Article 3 - (see Article 15).  Throughout its involvement with Abu Qatada, the European Court of Human Rights considered it necessary to prevent the use of "torture evidence" since that was a necessary step toward upholding Article 3.

It is commonly and erroneously said that EU nationals may not be deported.  In fact, deportations of EU nationals is governed by the EU Treaties and Chapter VI of Directive 2004/38/EC.  See also the UK's Immigration (European Economic Area) Regulations 2006.     Essentially, a deportation has to be based on a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.  It is entirely fair to say that this sets a high bar for such deportations.

Derogations from the European Convention on Human Rights:

It may be that when making her remarks in Slough, Mrs May had some form of derogation in mind.

Derogations are permitted by Article 15 of the Convention which refers to time of war or other public emergency threatening the life of the nation.  Derogation is not permissible in respect of certain Articles - i.e. Article 2 (except in respect of deaths resulting from lawful acts of war), Articles 3, 4(1) and 7. 

The UK derogated from Article 5 of the European Convention when the Anti-terrorism, Crime and Security Act 2001 was enacted.  The government claimed that there was a public emergency threatening the life of the nation.  This derogation was withdrawn in 2005.  See this Parliamentary report.  The government's claim that there was such an emergency was accepted by the Council of Europe.  In the Belmarsh case, the House of Lords, by a majority, upheld the Government's argument that there was a public emergency threatening the life of the nation, largely on the basis that the court was not in a position to challenge that assertion, but held that the other condition of a lawful derogation, that the measure in question must be "strictly required by the exigencies of the situation", was not satisfied. The European Court of Human Rights, when it considered the Convention compatibility of the 2001 legislation, similarly deferred to the Government's assertion that there existed at the time of the derogation a public emergency threatening the life of the nation.

Leaving the European Convention:

The European Convention permits a State to "denounce" the Convention - see Article 58.  A Member State may also "escape" the clutches of the Convention by leaving the Council of Europe - see Article 58(3).  The Conservative Party clearly envisages leaving the Convention but not during the life of the Parliament to be elected in June 2017.  It remains to be seen whether, if elected, a government led by Theresa May will retain that stance.

It is an odd thing that the Council of Europe does not appear to require a member state to be a signatory to the Convention.  The European Union does require that for membership of the Union.

Terrorism Prevention and Investigation Measures (Tpim):

These measures replaced control orders - see Home Office 25th October 2016

The Terrorism Prevention and Investigation Measures Act 2011 was enacted during the time of the coalition government (2010-15).  The government published on 1 September 2011 draft emergency legislation - the Enhanced TPIM Bill.  The Enhanced TPIM Bill provides powers for the Home Secretary to impose enhanced TPIM notices specifying more stringent restrictions than those available under the TPIM Act, if approved by Parliament. These include the power to relocate the individual without their consent to a different part of the country, geographical boundaries, and tighter restrictions on association and communications.

It seems highly likely that a Conservative government, if elected on 8th June, will seek to amend the law in this way.


Theresa May's remarks, albeit on the campaign trail, raise profound questions about the UK's future stance on human rights protection.  It will be the ultimate tragedy if those rights are abandoned for the majority because of the appalling criminal behaviour of some.  The Convention was forged in the aftermath of a World War that truly had threatened the life of the nation.  The Convention sets a standard by which governments, with their inevitable tendency to autocracy, are expected to treat their citizens.  It is of immense value to the majority and it does not in fact prevent the State from taking necessary and proportionate measures to deal with serious crime. It is NOT a criminal's charter.  I acknowledge that there are difficulties but the Convention is an essential document for enshrining basic human entitlements and freedoms which, without doubt, still require protection today. It must not be abandoned unless, of course, the terrorists are to be allowed to succeed.

Other views:

The Guardian 6th June - May: I'll rip up human rights laws that impede new terror legislation

The Guardian 7th June - Keir Starmer - UK human rights law does not prevent capture of terrorists

David Anderson QC 7th June 2017 - Terrorism and Human Rights

The Guardian 7th June - What's in Theresa May's new anti-terror package

Full Facts - Human Rights - Criminal's Charter

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