Does the Human Rights Act really protect our Freedoms?

This blog was first published on Big Brother Watch on 28.9.2010.   A longer version is included as a chapter of The State of Civil Liberties in Britain, Biteback Publishing, 2010.

The recent, sad and untimely death of Lord Bingham, one of this country’s finest jurists, calls for a reflection on the importance of the rule of law, about which he wrote so recently. Most importantly, what lessons can we learn from three decades in which Lord Bingham sat as a judge?

It is right to speak with pride of the legacy of Britain’s common law system. Its principles are the foundation of legal system throughout the world protecting the individual against the State. The common law experience shows the merit of laws derived not from the codification of abstract principles but through the resolution of real conflicts and disputes. Yet anyone who watched the BBC’s brilliant Garrow’s Law will have had an insight into how little protection was trial by jury in a world without a fair police force, thorough investigation and  strict rules of evidence and disclosure.  As we all know, the experiences of the Birmingham Six and Guildford Four demonstrated how inadequate protection against such abuses lived on into the late 20th century.

The recent general election again brought into the fore debate about the effects of the Human Rights Act 1998 (‘the HRA’) and the European Convention on Human Rights (‘the ECHR’) it incorporated. As a criminal barrister, though, I would rather start with one of the finest pieces of legislation of the 20th century, the Police and Criminal Evidence Act 1984 (‘PACE’). It is through this Act that suspects’ interviews must be tape recorded, identification parades held and evidence obtained through oppression excluded. These parts of the criminal justice process may not appear particularly important to a layman but they are critical. Fine principles are toothless without carefully drafted rules (whether from statute or case law) to ensure a process that appears fair isn’t corrupted at critical stages, leading to injustice at best but at worst the imprisonment of the innocent for years, even decades.

This experience of the importance of the practical over the principle leads us to consider how far the HRA has really protected the fairness of the criminal process. Certainly the HRA has had a significant effect on public, criminal and family law.  Not least of these was the landmark case of A & Others v the Home Secretary (2004) where Lord Bingham found that the provisions of the Anti Terrorism, Crime and Security Act 2001 allowing the detention without trial of foreign terrorist suspects were incompatible with Article 5 of the ECHR. Elsewhere, the HRA has allowed lawyers to rely on articles of the ECHR in areas as widespread as planning applications (Article 8: Coster v UK [2001] 33 EHRR 20), housing law (Article 8 – right to private and family life; and Article 14 – prohibition against discrimination) and immigration law (most frequently Articles 2 – the right to life; 3 – protection against torture; and 8).

Yet we in common law countries know that our freedoms rest on older and surer foundations than the ECHR.  The adversarial process, far from impeding the search for the truth, ensures that an individual presents his case to an impartial judge or jury, not an investigating magistrate whose role is impossible to disentangle from the state that prosecutes him.  The jury system transfers from the state to a defendant’s peers the decision about his guilt.  And the many procedural protections built up by Parliament and the courts ensure, where the criminal process outside the courtroom has prevented the possibility of a fair trial, that the proceedings are stayed.

Indeed, the experience of the twelve years since the HRA passed into law is a troubling one, for it has seen the passing of perhaps the most illiberal body of legislation for two centuries. The DNA database expanded to all arrested, regardless of their guilt or the triviality of their alleged crime; hearsay evidence permitted as a matter of routine; bad character evidence routinely admitted; arrests permitted for any crime, even those that do not carry prison sentences; defendants facing accusations impossible to rebut through witness anonymity (see my writing elsewhere); and a marked increase in minimum sentences, hugely reducing judicial independence.  Away from the strictly criminal sphere, the tabloid paranoia over paedophilia has led to a multi-headed hydra of over-reaction through the Independent Safeguarding Authority (ISA) (a report by Civitas published yesterday argues that any family looking after other people’s children faces vetting by the ISA); the Regulation of Investigatory Powers Act 2000 has allowed local councils to authorise 8,500 acts of covert surveillance in only two years (as an investigation by Big Brother Watch uncovered in May); and, but for doughty campaigners such as Shami Chakrabarti and David Davis, we might have had 90 days detention permitted in the mother country of the common law.

This litany of authoritarianism reveals a worrying gap in the protection we have traditionally expected from Parliament as the guardian of our precious legacy of freedom.  But it also raises an intriguing question.  Why is it that such a sustained attack on freedom has been so exactly contemporaneous with the earliest years of the HRA?

In answering this question, we must remember that the ECHR was designed not for nations with a long tradition of judicial independence but for a continent ravished by war, most of whose nations were emerging from decades of dictatorship – a role repeated after 1989 as former Warsaw Pact and USSR Republics joined the Council of Europe.  Thus, the ECHR is no more than a minimum standard for countries with diverse judicial systems and a hugely divergent history of fairness in criminal and civil proceedings.
Is it actually the case that the HRA has allowed the last government to plead its respect for human rights knowing that the ECHR was ill equipped to protect common law standards unique to Europe in the British Isles?  If that is so, should we think again about the fundamental standards to which all governments should be tied?

It is for this reason that Dominic Grieve has long campaigned for a British Bill of Rights.  Not as an ill-considered response to attacks on human rights law but as a shield defending the common law freedoms essential to a fair criminal process and freedom from state regulation, control and surveillance.  Rather than reducing the protection of the HRA, such a Bill would enlarge it after a similar period of consultation as occurred before the Canadian and Australian Bill of Rights were enacted.  Such a process would indeed protect our freedoms; but it would also persuade the British people to value the freedoms developed thanks to the struggles of their ancestors, the wisdom of our institutions and of the men and women who have influenced them.

As I was saying on Defence

Thankfully, Defence has not been out of the front pages this week. 

Today comes the report of the Defence Select Committee, whose Chairman, James Abuthnot MP, said that the Committee was ‘worried the process was money-driven and not taking time to assess the threats to the UK’ which was ‘potentially detrimental to the defence of the country’.  Concerningly, the Committee talked of an over-hasty, Treasury driven Defence and Security Review with a ‘lack of consultation with the public’ and defence contractors that was likely to lead to ‘serious mistakes’ being made.

On Monday (13.9.2010) news that the Obama Administration has recognised the dangerous signs from the Coalition that they are about to embark on catastrophic cuts in Defence spending on top of the damage done over 13 years of Blair and Brown (as I argued last week).  The Daily Telegraph reports that:

‘It is understood that a senior American official recently called the MoD to discuss “concerns” about the prospect of an even greater spending gap.

‘Michele Flournoy, the under-secretary for policy at the Pentagon, telephoned Tom McKane, the MoD’s strategy director, to raise the issue. “The Americans are sympathetic, but it’s fair to say they have some fairly serious concerns about where we will end up,” said a Whitehall source.

‘Robert Gates, the US defence secretary, has also discussed the coming cuts with Dr Fox. It is understood that he has told the Defence Secretary that the US believes it is vital that Britain retains its nuclear deterrent and its extensive intelligence-gathering operations.’

The irony is that this comes from an Administration that has itself been attacked for following the ‘British example’ through proposing cuts in Defence spending.  Dr Theodore Bromund’s description of the British experience is succinct and cutting:

‘The experience of these wars did not persuade the government that its policy was fundamentally misconceived; instead, it continued to emphasize efficiencies and to dribble out increases to fight the public relations fire of the day. It never treated defense as a serious issue requiring sustained, careful investment at a level that would not damage the nation’s economy, but also at one sufficient to sustain and train the forces of today while procuring for the force of tomorrow.

‘The results of this experiment did not justify the government’s policy. It turned out that it was extremely difficult to secure efficiencies in defense procurement, so while the cuts in defense spending were real, they were not compensated for by efficiency gains. Instead, the cuts forced delays in programs, increasing their overall cost while simultaneously piling up a procurement gap as the military of today consumed the funds that should have built the military of tomorrow.

‘As a result, by October 2009, the Ministry of Defense [sic] estimated its total procurement shortfall through 2038–39 at between £35 billion and £100 billion. This did not stop the government from taking credit for increasing defense spending after 2004, even though these increases did not close the growing gap between planned and required spending.’

It might have been hoped that the Defence Secretary would be using these reports, the papers that have been published, the abundent evidence of the damage done to the national interest by cuts on top of a funding gap of at least £21 billion (over 10 years) and the concerns of our principle ally to fight the Treasury tooth and nail.  Sadly, the evidence of the Defence Select Committee suggests otherwise.  The question is, when will the Conservative Party realise the danger to our country’s long term interests and revive, one hundred years later, the 21st century equivalent of its old cry “We want eight and we won’t wait”?

NB:

I was on The World Tonight on 5th October, speaking about the Defence cuts during the Conservative Party Conference (in the introduction to the programme and at around 22 minutes in).

The Defence of the Realm is not Expendable.

The serialisation of Gen Sir Richard Dannet’s memoirs last weekend shed yet more light upon the Blair Government’s double standards wherever the armed forces were concerned.  Whilst his descriptions of the dying days of the Brown administration are eye opening – in particular his revelation that the only way he was able to speak to the prime minister (as Chief of the General Staff) was to corner him on Horse Guards – Gen Dannet’s account of Brown’s refusal to pay for the defence programme called for by the last government’s own Strategic Defence Review (in 1998) is well known and well documented.  Gen Lord Guthrie recently confirmed that Gordon Brown’s evidence to the Chilcot enquiry was misleading at best, dishonest at worst.  In particular, Mr Brown made two assertions that were quite simply untrue.  Firstly, that Defence spending increased in real terms every year of the Blair/Brown governments: in fact “spending was cut in real terms by 1.5 per cent, or £400 million, in 1999-2000; by 2.1 per cent, or £700 million, in 2004-05; and by 0.2 per cent, or £100 million, in 2006-07” (The Times, link above).   Secondly, Gen Guthrie directly contradicted Mr Brown’s assertion that he provided the armed forces with each of the budgetary requirements for which it asked; he was in a position to know, having made the requests to the Chancellor directly as Chief of the Defence Staff. 

What lessons are there for the Coalition; and, particularly, for a Chancellor apparently determined to give inadequate budget protection to armed forces that have suffered huge cuts in their equipment and manpower for two decades?

Firstly, we need to consider the damage done to the armed forces and that it may suffer in the future due to stagnant spending at best.  The above expenditure statistics measure ‘real’ inflation according to the CPI, the government’s preferred inflation indicator (largely because it is consistently lower – and less comprehensive and therefore accurate – than the RPI).  Thus, they ignore the reality of Defence Procurement Inflation.  Professor William Kirkpatrick recently argued in a United Services Institute paper that procurement costs measured in unit price terms for equipment have inflated at a rate of around 7.5 % throughout the modern era.  Prof Kirkpatrick accepts that this measure ignores the increase in the performance of equipment – Spitfires to Typhoons, Dreadnoughts to stealth Destroyers, etc – but justifies this by arguing that the correct relative measure of performance is not historical but multi-lateral; that is to say that our performance will only have increased if the relative advantage of F111s against MiGs was greater than that of Spitfires against Messerschmitts.   It has been argued by Professor Malcolm Chalmers that his figures are misleading, on the grounds that the expenditure of potential rivals has equally failed to keep pace with unit price inflation.  Whilst this argument has some superficial attraction, it has severe limitations, as Prof Chalmers acknowledges.  For example, regardless of their potential increased power over rival aircraft, a similar number will be required to protect UK airspace.  Likewise, even if future aircraft carriers are larger than the Invincible Class (and aircraft carriers have shrunk as well as grown in size over the past century), the UK will suffer decreased capability unless it is able to sustain the same number of aircraft carrier groups. 

Examples used in both USI papers are largely historical or hypothetical, yet the Army’s current major engagement is an important illustration of the flaws in Prof Chalmers’s analysis.  In Afghanistan, allied troops fight against unsophisticated and relatively poorly armed non-state adversaries.  Yet the use by the Taliban of Improvised Explosive Devises (IEDs) has led to appalling casualty rates on a scale not seen since the Falkland’s Conflict, where the United Kingdom faced the most militarily sophisticated enemy of the past 30 years save Serbia.  There are two means by which this casualty rate could be decreased.  The first and most effective is by an increase in the number of helicopters enabling evacuations that avoid the IED risk.  Whilst the Taliban has some anti-aircraft capacity, the extremely short time span of helicopter evacuations, combined with the limits to this (Taliban) capacity, explains the greatly reduced risk.  The second means of reducing the threat is by supplying the troops with more effective armoured vehicles to replace the tired Land Rovers developed to police Northern Ireland during the Troubles.  Yet the United Kingdom has failed to increase the supply of this essential equipment due to the limitations on its budget and the unwillingness of the Treasury to increase MoD spending to take account of this greater need – unexpected and unaccounted for in previous reviews. Thus, even enemies that have been described as “13th century” can lead to the need for far greater levels of equipment.

The second consequence of recent engagements in Iraq and Afghanistan is one that cannot be measured purely in terms of money.   It is that army units are deployed at ever greater frequency and with ever shorter periods back with their families at home or in Germany.  It is impossible to measure the effect this has had and continues to have on morale amongst all ranks but we surely have a moral obligation, as a nation thankfully increasingly aware and appreciative of the sacrifices made by our soldiers on our behalf, to mitigate these emotional costs of warfare both by adequate expenditure on the equipment they need and by increasing or at least maintaining the size of the army to allow decent breaks between deployment.  In financial terms, though, this is an additional marker of defence inflation of which neither professor took account.

Finally, we must consider our obligations as the only Power in NATO without a semi-detached foreign policy (no prizes for guessing which country) to be able to make a significant contribution to US led military operations.  This is to do no disrespect to Canadian, Polish and Danish troops, who alone amongst NATO allies have joined US/UK troops in serious combat operations in Helmand Province and who have suffered comparable casualty rates to us.  Nevertheless, their respective expenditure on defence is only 1.66, 1.41 and 1.3 per cent of GDP, as opposed to 2.5 and 4.3 per cent by the UK and US respectively.  Those who argue that Britain is no longer a great power and cannot afford to project her interests do not merely ignore the reliance put upon its armed services by the UN in enforcing its Security Council Resolutions in Iraq in 1991 and Afghanistan from 2001 and in preventing genocide in Bosnia in 1999, they belittle British interests that rely upon effective, well equipped and sufficiently large armed forces.  Britain still relies upon Middle Eastern oil, it still relies upon trade routes through the Red Sea, it still has obligations to its citizens in Dependant Territories.  Moreover, Britain cannot expect to retain its privileged status as a Permanent Member of the Security Council without being able to contribute to necessary military action it has the responsibility to enforce.

Of course it is trite to complain that particular policies are not to be implemented in a coalition government.  The synthesis of values and policies coalition government entails will lead to inevitable disappointment on both sides.  Those who make such complaints forget that, for good or ill, David Cameron failed to secure an overall majority and has been forced to accept compromises in some areas.

Yet Britain’s defences and its ability to project its power to protect its interests should never be one of these.  It was deeply alarming that the Conservative Party failed, in opposition, at least to guarantee that Defence expenditure should be immune from cuts.  When combined with its pledge to maintain spending on the NHS –  its own Party research having shown that expenditure on central administration alone had doubled in five years – this policy was difficult to understand.  For the Treasury now to treat Defence almost as any other department (its concession requiring cuts of ‘only’ 10 per cent being derisory) is a direct assault on national interests.  Sadly, the Conservative Party’s history shows that it has all too often failed to appreciate how rapidly Britain’s military needs can change.  John Nott’s Defence Review of 1981 would have led to the scrapping of 20 per cent of the surface fleet and one aircraft carrier but for the Falkland’s War; and it took until 1934 for Baldwin’s National Government to begin rearmament (Correlli Barnett, The Collapse of British Power (London: Methuen, 1972), p. 412).  Will this Government be any different?