The European Court of Human Rights
~~~ *** ~~~
This article was first published by the Bruges Group (here) and we re-publish with their and the author’s kind permission
~~~ *** ~~~
So, Boris Johnson has now won the election with a very comfortable majority, on a ticket to “Get Brexit Done”. Corbyn has lost decisively, and Jo Swinson was not even re-elected.
The SNP has increased the number of its MPs, and Sturgeon has raised her voice again to demand a second independence referendum. However she appears not to have worked out what currency an independent Scotland would adopt, how it would survive without the English subsidies, where Scotland would go if the EU did not accept it for membership, or even (an issue so far quite undebated) what the qualifications for citizenship of an independent Scotland would be.
Nigel Farage’s contribution in standing down 317 Brexit Party candidates who were to run in constituencies already held by sitting Tory MPs, was surely decisive in the Tory victory. He did it after receiving two signals, that under no circumstances would a Boris government allow the Free Trade negotiations to drag the Transition period on after the end of 2020; and that a political regulatory alignment of the UK with EU rules would not be accepted.
And now these two conditions are being fulfilled – the govt is even passing a law to ensure that the Transition period will end on 31stDecember 2020, and Boris has reaffirmed his intention not to accept a political regulatory alignment with EU rules thereafter. There are other signs too. The obstructionist Speaker of the House Bercow has been replaced by a more Brexit-friendly Speaker. The scare-mongering-prone Governor of the Bank of England Carney is to be replaced too. Despite an initial ban by Speaker Bercow, Big Ben is now due to mark the moment of Brexit with a special Bong at 11pm on 31st January 2020. And the Brexit Party MEPs celebrated their imminent departure by singing “We wish you a Merry Brexmas” to a thunderstruck assembly of the Euro Parliament.
It remains to be seen how the Eurocrats will respond to all this. So far they have said that without regulatory alignment there is no way they will accept a Free Trade deal. With the weakening of the German and other European economies it remains to be seen if they will keep this up over the coming year.
There do remain the problems of the agreements already signed up to by Theresa May, leading to the amalgamation of our armed forces with a nascent European Army. These must surely be rescinded. We wait to see what Boris intends to do in this regard.
There is also the question of our fishing waters. France, with EU support, has stated emphatically that French fishing vessels must continue to be able to fish in British waters. This may become a question of enforcement ability. To what extent is the Royal Navy equipped to enforce our exclusive fishing rights over our territorial waters?
There is the question of our continued participation in the European Arrest Warrant. We read in The Independent:
The UK is set to be thrown out of the European Arrest Warrant system after Brexit, the Queen’s Speech admits, triggering a warning it will become “a haven for Europe’s worst criminals”. Boris Johnson has unveiled plans for an extradition bill, to ensure “a person wanted by authorities in a trusted country for a serious crime is arrested quickly”. The measure will also give the police powers to arrest someone wanted for a serious crime in a non-EU country “without having to apply to a court for a warrant first”.
British lawyers and politicians still seem to be blissfully unaware of the profound differences between our criminal procedure and those used on the continent. Under the latter, suspects are often arrested and imprisoned before any substantial evidence of a prima facie case to answer has been collected by the prosecution, and held for long months “pending investigation” with no right to a public hearing during this period.
This lack of any requirement for the prosecution to be able to exhibit evidence in order to arrest someone makes this power a potential tool for tyranny, as well as causing needless suffering to innocent suspects. Moreover, when the wrong person is arrested on the basis of a suspicion based on mere clues or even a hunch, and this is not speedily tested and verified in open court, the subsequent investigation will be focussed on justifying ex post facto the arrest, and the real guilty party can get off.
This is the big problem with the EAW, because a British court is not allowed to ask to see any evidence, it being wrongly assumed that the continental authority issuing an EAW must already have it and be able to exhibit it, when in fact it does not. It is to be welcomed that the Extradition Act 2003, which incorporates the EAW into UK law, is to be replaced by a new Extradition Bill.
We must hope that the government will ensure that the new extradition procedures include the right for a British court to demand to see and to assess the evidence, if any, on which an EAW has been issued. The narrative favoured by the police and others that the EAW speeds up the apprehension and transfer of criminals must not be allowed to prevail over the need to ensure that the right persons are arrested, and not some hapless innocent. There have been a number of documented cases of the latter, including a British judge, Colin Dines, whose case was taken up at the time by his MP, Dominic Raab. It is to be hoped that Mr Raab, now in the cabinet as Foreign Secretary, will remember this case and help to ensure that the Extradition Bill is drafted so as to prevent such cases from occurring again in future.
At least one more item deserves consideration. It is our subjection to the European Court of Human Rights, where judges from 47 countries, some with dodgy records on human rights, have the final, unappealable, word on deciding what our human rights should and should not be. In the past this was noted and described as inappropriate by Lord Hoffman and others. Nick Timothy wrote recently in his column in the Telegraph “We must leave the jurisdiction of the ECHR.”
Amongst the reasons for this, the fact that it prevents us from dealing with terrorists as we see fit is usually cited in debate. However it should be added that the Convention and the Court do not even do necessarily what it says on the tin – protect what we in Britain take for granted as our normal human rights. Freedom from arbitrary arrest and imprisonment for instance is safeguarded for us by Habeas Corpus. Not under the ECHR. Article 6 only says a prisoner has a right to a public hearing before an impartial tribunal within a “reasonable” time after arrest. But it does not define what is “reasonable”.
For us with Habeas Corpus it is a few hours, or at the very most, in extreme terrorist cases, now extended to 28 days. On the other side of the Channel it can be much, much longer. In the 1980s an Italian university professor was arrested and held for four years and eleven months, with no trial nor even any public hearing. His application to the ECHR was rejected with the motivation that “preventive detention… facilitates the preliminary investigation”. For us, this evokes images of the rack and thumbscrews… Subsequently, when at last he came to trial, he was acquitted on all counts.
Photo by marcella bona