This week Frances Lawrence, widow of the courageous head teacher murdered by Learco Chindamo in 1995, called for the revision of our human rights laws. Her frustration will be shared by many: ‘Chindamo is being given every help while my family is hung out to dry’.
The cruel irony of our perverse law is that Chindamo blocked deportation by claiming the right to family life – having shattered the lives of the Lawrence family. He promised to lead a clean life and help his ailing mother, but was recalled to prison within months of release after allegations he mugged someone at a cash point.
Meanwhile, Mrs Lawrence was asked by probation officers in 2001 to apologise for publicly criticising Chindamo’s lack of remorse. Apparently, he found this hurtful. Then, this year, when she asked for general information about where he was living – so her family could avoid the neighbourhood – she was rebuffed, again to avoid infringing Chindamo’s privacy rights. Our justice system is out of kilter. So, how can we sensibly respond to Mrs Lawrence’s call, without resorting to knee-jerk reactions?
First, by understanding the problem. The 2007 Chindamo ruling on deportation was made under the EU Citizens Directive, but the court said that its analysis under the Human Rights Act (HRA) was the same. The Directive is a classic example of an EU law badly negotiated by Labour in 2004, with Britain overruled by qualified majority based on changes introduced by the Nice Treaty. However, the wider exploitation of the ‘right to family life’ to block deportation cannot be blamed on Europe. In 2009, the House of Lords made crystal clear that the European Court of Human Rights may have blocked deportation to prevent return to torture (the notorious Chahal ruling), but Strasbourg had never upheld a bar to deportation to prevent interference with family life. That was an innovation made by the UK courts in 2008 under the Human Rights Act.
The human rights lobby claim that replacing the Human Rights Act with a Bill of Rights would make no difference, unless Britain pulls out of the European Convention on Human Rights (ECHR). That is defeatist nonsense. The fetters on deportation, where it disrupts family ties, are a direct result of judicial legislation under the HRA – a clear example of a home-grown problem we can address without pulling out of the ECHR. An investigation by the Sunday Telegraph in 2009 revealed that in most cases where deportation is blocked on human rights grounds, the claim is not fear of torture, but disruption to family life.
So what can we do about it?
First, in the Chindamo case, the government should order a review by Her Majesty’s Inspector of Probation into the conditions of his licence on release. Andrew Bridges, the Chief Inspector, has been here before. He reviewed the tragic murder of Naomi Bryant, by serial violent offender Anthony Rice. His 2006 report highlighted the impact of judicial legislation under the HRA, pointing to the expanded definition of privacy rights. He stated:
‘It is a challenging task for people who are charged with managing offenders effectively to ensure that public protection considerations are not undermined by the human rights considerations.’
We need to know whether these lessons have been learnt.
Second, politicians should avoid making matters worse. The EU common asylum policy expands the restrictions on border controls exponentially. Britain will come under pressure to ‘opt in’ by 2014, when we must decide whether or not to join wider EU policing and criminal justice measures. We must stay out.
Third, tackle the HRA. The coalition agreement pledges to set up a commission to review the HRA and the proposal for a British Bill of Rights. I have long favoured a Bill of Rights, but I recognise we are unlikely to get one under the current coalition. In the meantime, a reasonable – and temporary – compromise would be to amend sections 2 and 3 of the HRA. Section 2 could be amended to stop UK courts slavishly following Strasbourg case-law – there is no international obligation to do so. Section 2 states that UK courts must merely ‘take into account’ Strasbourg case-law. But led by the HRA’s cheerleader, the late Lord Bingham, the Law Lords interpreted that to mean following Strasbourg jurisprudence as if it were binding precedent.
Next, amend section 3 which, as one Parliamentary Counsel described, ‘instructs the courts to falsify the linguistic meaning of other Acts of Parliament’ – giving domestic judges a broad licence to re-write British law and expand the scope of novel rights. Both changes would help stop the rot – and enable us to tighten the rules on deportation.
Fourth, Britain should seek a wider international consensus amongst its European partners to amend the ECHR and EU Citizens Directive. We need to impose greater quality control on the selection of Strasbourg judges (who behave like politicians), constrain the scope for judicial activism (as Lord Hoffman and a growing chorus of UK judges now recognise), and if possible devise a new set of international rules for deportation cases.
Finally, when we get perverse edicts from Strasbourg – like the demand for prisoners to vote – there is a simple answer. Ignore them. The human rights lobby will claim that this would damage the international rule of law. But, half of the Strasbourg judges had no prior judicial experience. And the real challenge to the rule of law now comes from judges behaving like unelected legislators.
On prisoner voting, Parliament should debate three options: the current blanket ban, votes for all prisoners and a middle option. If, as I suspect, Parliament voted to retain the current ban, Britain would have met the challenge of the Strasbourg Court, which complained the blanket ban lacked democratic legitimacy. What would we have to fear? Who is seriously suggesting that Britain would be kicked out of the Council of Europe, whilst France deports Roma en masse and the Strasbourg Court is backed up with serious human rights violations committed by the Russian, Bulgarian and Romanian governments?
After all, what is the point in having a Supreme Court, if Strasbourg can overrule it? In Germany, the constitutional court is posing the greatest challenge to the euro and European federalism in years – pushing back, in the name of national sovereignty. That is the kind of European precedent Britain should follow.