“If our human rights laws stop us from doing it, we’ll change the laws so that we can do it.”

This was the statement that was met by cheers, applause and approval from a sea of people propping up ‘VOTE CONSERVATIVE’ signs. It was delivered unfalteringly of course, an important part of responding to a series of terrorist attacks that had claimed lives and shaken a nation. Theresa May’s words however went one step beyond reassurance. She did not create a narrative explaining why British-born citizens were pandering to extremist views. She did not explain why the Westminster Bridge, Manchester, London Bridge, Borough Market and Finsbury Park attackers fell through the cracks of her Prevent duty. In other words, she did not look back and evaluate her current policy. She did not attempt to see beyond ‘ideology’ as the undercurrent of these attacks. Instead, she told us that laws were dispensable.

The phrase ‘human rights laws’ is easy to throw around in discourse. The problem is that they become a mystical notion that most do not understand, or know the extent to which they apply. To simplify, May in fact meant the European Convention of Human Rights (ECHR) that the United Kingdom abides by for two main reasons. First, because it is a founding member of the Council of Europe that ratified the convention in 1953. Second, and more importantly, because Parliament passed the Human Rights Act in 1998. Every first-year law student knows that section 3 of the Act reads that in so far as it is possible to do so, “primary and secondary legislation must be read and given effect in a way which is compatible with Convention rights.” This means that Parliament’s words should be construed to go along with the grain of Convention rights. Put it another way, when Parliament drafts legislation, Convention rights have to be a necessary consideration. To make a notable example, the ECHR gave same-sex couples equal tenancy rights to same-sex couples (Ghaidan v Godin-Mendoza [2002] EWCA Civ 1533 [2004] UKHL 30).

Should we think that our human rights laws are an irrelevant impediment for our government? May’s ‘Prevent 2.0’ was proposed on three tenets: greater conferred powers to our police and intelligence agencies; easier restriction of movement for foreign terrorist suspects and longer prison sentences for convicted terrorists. Kier Starmer, former director of public prosecutions, argues that May is disconnected with reality. Both the Crown Prosecution Service and their counter-terrorist teams are unencumbered in their monitoring, apprehending and convicting of suspects. This is believable because the government maintains the power to effect a de-facto travel ban for British suspects, tag their electronics and subject them to limited house arrest. Yet the London Bridge attacker Khuram Butt was disregarded by police after encountering a counter-terrorist campaigner in 2013. Nor did they require enlarged powers or data to investigate him after appearing in Channel 4’s ‘The Jihadi Next Door’ documentary in 2016.

Perhaps May has a strong case on the second tenet. The indefinite detention without trial of Jordanian national Abu Qatada was outlawed by the House of Lords because it contravened Article 14 of the ECHR. Article 14 prohibits discrimination on the grounds of race, colour, religion or other feature. Section 23 of the Anti-terrorism, Crime and Security Act 2001 states that the Secretary of State has the power to detain suspected international terrorists where their removal is not possible at the present time. The problem was that it discriminated against foreign national suspects (A and others v Secretary of State for the Home Department [2004] UKHL 56). While the government released Qatada and the other Belmarsh prisoners, new control orders led to their subsequent house arrest. In fact, that there was no difficulty in restricting the movement of suspected terrorists. In order to be deported, the label ‘suspect’ was not enough and instead a criminal conviction is required. It was not our Convention rights which prevented Qatada’s deportation, but a widely-accepted principle of international law that a trial based on evidence obtained from torture is inadmissible. In her effort to appear strong on terrorism, May treated the rule of law with the very same impunity as the terrorists whom she condemns.

What is more, Article 8 of the ECHR prevented the government from following a policy of ‘deport first, appeal later’. In R(Kiarie) v Secretary of State for the Home Department and R(Byndloss) v Secretary of State for the Home Department [2017] UKSC 42, the Supreme Court overturned the lower court to allow appeals against deportation to be done in person. Although both appellants were convicted of serious drug offences, this case proves a point about deporting convicted foreign nationals. Mr Kiarie of Kenyan nationality and Mr Byndloss of Jamaican nationality could not be deported without appealing the order. Pursuant to s3(5)(a) of the Immigration Act 1971, “a person who is not a British citizen is liable to deportation if the Home Secretary deems the deportation conducive to the public good…unless deportation breaches Convention rights” (s32(5) of UK Borders Act 2007).

Lord Wilson makes it clear that the UK is not the only country who abides by Convention rights. In Al-Nashif v Bulgaria [2003] 36 EHRR 655, the European Courts of Human Rights held that deportation of a Syrian national by Bulgarian authorities interfered with Article 8 and in effect Article 13 (right to an effective remedy for those whose Convention rights and freedoms are violated). The court went further, in that national security was not enough to override “the concepts of lawfulness and the rule of law” in a democratic society. Measures affecting fundamental human rights must be reviewed before a competent independent body. Therefore, political aims can never be the exception to the laws of a democracy.
But even human rights are far from an easy card to play. Foreign criminals must qualify to appeal against a deportation order. They must “assemble and present powerful evidence” of the depth of their integration in UK society, the quality of their relationship with any child, partner or other family member in the UK, the impact of their deportation for the welfare of any child in the UK and any significant risk of re-offending in the UK (Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799). Such an interference with their human rights imposes a burden on the Home Secretary to establish it is “justified”, in particular “proportionate”, and “rationally connected” to a “sufficiently important objective”. Lord Wilson’s language of proportionality goes further; a “fair balance between the rights of the appellants and the interests of the community” is required and “nothing less intrusive” than deportation needs to be proven. Based on the above, the Home Secretary failed to establish that the deportation of Mr Kiarie and Mr Byndloss was fair.

The non-legally binding effect of ECHR rights only strengthens the case I am trying to make. While section 3 of the HRA is binding, section 4 lets national courts declare incompatability. The famous Hirst (No.2) exception proves the rule that ECHR rights are neither supreme nor insurmountable.

The narrow yet necessary margin that Convention rights give us debases Theresa May’s case. In her bold attempt to address the problem of terrorism, she falls too short-sighted. The question is not whether our human rights laws significantly protect potential terrorists (which I have proved in the negative). It is instead why do British born citizens pander to terrorism? The answer is broader than ‘ideology’. I authored an extended dissertation on Islamism, an ideological system to restore a state to the fundamental principles of Islam (the essence of ISIS), and found four main causes for its recent revival. European colonialism in the nineteenth and twentieth centuries, foreign policy, a clash of civilisations and, most prominently, relative deprivation. It is the last two that concern us the most, because it applies to British Islamist militants.

Khalid Masood waged jihad in revenge of Western military action in the Middle East as he drove into pedestrians on Westminster bridge and killed a police officer. It is likely that Salman Abedi was brainwashed in Syria to channel and then bombed a concert because he had limited critical thinking ability as a university dropout and lived a marginalised life as the son of refugees in a deprived part of Manchester. Khuram Butt, another British national who brought carnage on London Bridge, was linked to Islamist Al-Muhajiroun leadership Anjem Choudary who remains notorious for his criticism of the UK’s involvement in Iraq and Afghanistan. Theresa May has yet to prove how weaker human rights laws would have prevented any of these attacks.

It is easy, Prime Minister, to be tempted to do whatever it takes at this point. It is quite another thing to be able to defeat militant Islamism upholding the Magna Carta and British values.

Human rights laws are never a means; they are an end.

8 December 2017

Zarlush Zaidi

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