David Davies MP (not to be confused with David Davis MP) has called for the repeal of the Human Rights Act 1998 in the light of the murder in Paris yesterday of 12 members of staff at the French satirical magazine Charlie Hebdo. In an article on his website entitled “Paris attacks show need to scrap Human Rights Act”, Davies writes:
A few years ago while working a Special Constable in London, I was involved in the arrest of a man who had declared himself to be a member of the Taliban.
He backed up his statement with various documents and photographs of himself in a desert holding weapons with other armed militants.
We radioed for advice and after a while were told to let him go. Apparently he was an asylum seeker whose claim for asylum in Britain was based on his membership of an extremist terrorist group who have taken the lives of hundreds of British soldiers. He was set free to continue his journey across London to meet his lawyers who were no doubt being paid for out of public money.
This incident has always worried me. Under current laws, including the Human Rights Act, anyone can come to the UK and make a claim for asylum.
There must be huge numbers of people in Britain who have been members of extremist Islamic organisations. Some are actually using this as the basis for an asylum claim.
The tragic terrorist attacks in Paris should be a wake up call.We should state that anyone suspected of links with any militant Islamist organisations should be prevented from entry under any circumstance into Britain.
Those who enter illegally should be held in custody until deported to their home country regardless of any penalty they may face there.
Dignifying this with a response is perhaps inadvisable, but I cannot resist a few words. Davies’ remarks disclose an astonishing — but unfortunately commonplace — level of legal illiteracy. The right of individuals to come to the United Kingdom and claim asylum is, of course, not attributable to the Human Rights Act 1998 or to the European Convention on Human Rights to which the Act gives effect in domestic law. The right to claim asylum is a matter distinct from both the HRA and the ECHR, such that repealing the former and/or resiling from the latter would not in any way relieve the United Kingdom as a State of its separate international obligations towards asylum-seekers. All of this so so obvious that (one would hope) it hardly needs to be said.
However, the fact that Davies has made the claims he has made is significant for at least two reasons. First, it is symptomatic of the impoverished nature of public debate in relation to human rights law generally and the HRA and the ECHR in particular. People, including politicians, are wholly entitled to advocate the repeal of the HRA and British withdrawal from the ECHR, but it is incumbent upon those making such arguments to justify them by reference to legally accurate analysis, rather than in reliance upon the sort of nonsensical assertions implicit in Davies’ article. This point will assume particular importance in the next few months as, in the run-up to the general election, criticism of the HRA by the political right intensifies.
Second, atrocities of the type that occurred yesterday in Paris often provide a convenient peg upon which to hang illiberal legislation. History — including recent history — teaches this lesson very clearly, British legislative responses to 9/11 and 7/7 being obvious cases in point. Indeed, in the immediate aftermath of 7/7, the then Prime Minister, Tony Blair, openly suggested that British adherence to Convention rights would not be permitted to get in the way of effective prosecution of the ‘war on terror’. Yet it would be paradoxical, to put it mildly, if the Paris shootings were used as a justification for the repeal of the Human Rights Act. Indeed, such an argument calls to mind Lord Hoffmann’s judgment in the Belmarsh Prison case. The arrangements made in the Anti-terrorism, Crime and Security Act 2001 for extra-judicial internment of foreign terror suspects were, said Lord Hoffmann ‘not compatible with our constitution’. He then went on to say (responding to the Government’s argument that derogation from Convention standards was justified because of a ‘threat to the life of the nation’) that:
The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.
To the extent that the Paris shootings are relevant at all to the debate about human-rights law in the UK, their significance is not that they demonstrate that public security and human rights are incompatible. To the contrary, they stand as a stark reminder that liberal values are worth standing up for. Freedom of expression in general and freedom of the press in particular are values that were championed by the journalists and cartoonists at Charlie Hebdo, and they are values enshrined in Article 10 of the ECHR and, hence, in our own Human Rights Act. To suggest that the shocking events that took place in Paris this week establish a need to repeal that legislation discloses not only an astonishing degree of legal illiteracy but a fundamental failure to appreciate what it means to live in a liberal democracy.