Put not your trust in judges

The Human Rights Act looks set to disappoint again, once more failing to ensure open justice

Nick Cohen
Sunday December 16, 2007
The Observer

Allan Chappelow was not an obvious target for the security services. He was an elderly literary gentleman who collected anecdotes about George Bernard Shaw, and even Mohamed al-Fayed would be hard pushed to blame a conspiracy of MI6 agents and Prince Philip for his murder in Hampstead last year.
The charges against the suspect, Wang Yam, include burglary and deception, and it looks as if the prosecution will allege nothing more than a financial motive. If it does it will likely do so in secret. Last week the prosecution asked for a gagging order on the trial.

Inevitably, conspiracy theories followed. Who is Yam? What might he have said in open court to embarrass the authorities? The people who know can’t say, but every lawyer knows what could go wrong. Because publicity is forbidden, potential witnesses can’t read about the case and come forward to provide crucial evidence, like an alibi.
If you read Conservative writers you might believe such authoritarianism is impossible in the 21st century. The Human Rights Act is meant to have brought a terrifying permissiveness, allowing thieving gypsies to rob villagers with impunity and prisoners to be treated like guests at five-star hotels. Read those who defend about our traditional liberties, however, and Britain does not appear a country with a glut of freedom. As they worry about habeas corpus and assaults on the basic principles of the common law, they don’t comfort themselves with the thought that judges quoting the Human Rights Act will stop draconian ministers. The European Convention of Human Rights might never have been incorporated into British law.

‘It’s been a damp squib,’ sighed Professor Ian Leigh, of Durham University’s Human Rights Centre, as he disabused me of the notion that Yam’s lawyers could challenge a secret hearing. The European Court of Human Rights has ruled that national security and the need to protect police informants trump the public interest in open justice. A study by the old Department for Constitutional Affairs last year backed him up. Although the act had brought changes, most notably on the internment of foreign terror suspects, on the whole it had just provided a new way for judges to do what they would have done anyway.

The government’s satisfaction should make anyone who hopes that unelected judges will fight their political battles for them pause. The European Convention of Human Rights has never been a good defender of the liberties the British treasure most. The most glaring modern instance is ID cards. Most oppose them because they will cost a fortune and the computers storing the confidential information of every adult in the country will be ransacked by identity thieves (assuming the computers work, that is).

To a minority, they are an affront to British identity. Britain, America, Australia and the other common law democracies allow citizens to do whatever they want as long as it is not against the law. Continental democracies with their Napoleonic codes tell citizens what they can do as well as what they can’t. Although there aren’t many at the moment who hate the idea that the police should be free to demand you prove who you are when you are not committing a crime or giving them reasonable grounds for suspecting that you may commit a crime, the English romantic in me hopes that an outburst of principled nationalism will do for the wretched idea eventually.

The courts won’t. You can’t expect judges to say ID cards offend rights to privacy when the European Court of Human Rights presides over dozens of countries that see nothing wrong with them.

Nor, I suspect, will the judges stop the Home Office from extending the period in which terrorist suspects can be held with out charge. Ben Ward of Human Rights Watch says that as things stand, detention for the current 28 days is probably in breach of the European convention and 42 days would be in open defiance of it. But as Human Rights Watch is the first to point out, the idea that Britain is out of step with liberal Europe is a myth.

Britain won’t deport foreign terror suspects with no legal right to be in this country because they may be tortured when they reach their home. The French aren’t so scrupulous. A typical recent case was that of Abdelkader Bouziane, whom French intelligence accused of inspiring terrorists and delivering anti-semitic and anti-Christian sermons. If he had been a British resident, he would have had to remain in the country. The French authorities put him on a plane to Algeria, and when the judiciary complained, the law was changed to make deportations easier.

True, France, like other European countries, doesn’t hold terror suspects without charge for as long as Britain, but the difference is more apparent than real. Under Napoleonic law, an investigating magistrate directs police to send a defendant to prison to await trial – a wait that can last years. In Britain, the police and judiciary are separate. Lord Carlile, the Liberal Democrat peer who advises the government on terrorism, is recommending that Britain should adopt the Continental system, and you can see why. If a British version of a European investigating magistrate says a terror suspect should be detained until police are sure there’s no case against him, British and European courts will be happy. Judicial oversight would be in place and that would be that, although as far as the suspect is concerned the new form of imprisonment without a trial would be no different from the old.

All of this is a long way of saying, that in a democracy arguments have to be won before the high court of Parliament and the court of public opinion. If you think Her Majesty’s courts offer you an easier route, you are likely to find that the short cut is a dead end.