The European Council met “unofficially” to review the European Convention on Human Rights in the context of migration asylum. This news prompted, for me, mixed feelings.
The mixed feelings meant my response was not entirely negative.
But what could possibly be positive?
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The good thing is that any changes are being done by discussion and deliberation. That signatories are not threatening to leave or to break the convention.
The convention and other constitutional and human rights codes are often called “living instruments” – though this is usually taken to mean that the scope of that code and of its provisions can be adapted and expanded by courts and tribunals from time to time.
But for any legal code to be a “living instrument” also means it can be amended and restricted (or expanded) by the codifiers from time to time – that is the legislators that wrote and ratified the code.
This is the rough that goes with the smooth if you sincerely believe constitutional and human rights codes to be “living instruments”.
No legal code, whether drawn up in 1950 – or 1215 or 1688-89 or 1789 or whenever – should be treated as unalterable: written in stone as opposed to on parchment or paper (or now in an electronic template).
Politicians revisiting constitutional and human rights codes is the price we pay for judges being able to develop those codes and their provisions.
Of course, it may well be (as is the case here) that the politicians are up to no good, that what they want to do is illiberal and misconceived.
But that is a separate and distinct argument to be had to whether the codes should be immune from political review.
As it is, the expressed “legitimate concerns” (such a cant phrase) about can and should be met by other means, rather than rigging the convention so that member states win cased which they are currently losing.
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One example, which should be better known but is not because the United Kingdom government did not want to shout about it, was the case of Abu Qatada.
His extradition to Jordan to face terrorism charges was blocked because evidence against him had been extracted by torture.
Ministers and the media huffed and puffed and threatened to blow the United Kingdom out of the ECHR.
But in the end – quietly – the governments of the United Kingdom and Jordan agreed a treaty that torture-gained evidence would not be used in such case.
Abu Qatada was extradited and then…
…he was cleared of terrorism charges.
Similar arrangements could be made in respect of other individuals who are resisting being sent to inhuman and degrading conditions.
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Anyway, I have set out the Good, the Bad, and the Ugly, about this European Council deliberation over at Prospect – please click and read.
You can leave any comments on that piece below.
It is a testimony to the generally febrile and aggressive tone of much debate that DAG’s posts seem to special. That’s because he does what we once thought was normal: analyse the issue coolly and in an informed manner, in the hope of contributing to a mature debate.
Am I imagining a time when this was what everyone did? Probably yes. Still, this is always welcome, always helpful and informative. Please don’t stop.
The Abu Qatada case should indeed be better known. It was quite shocking, even if some of the outcomes were good, eventually. What was especially shocking was the Prime Minister, David Cameron, publicly asserting AQ was guilty of various things. No politician should ever be asserting such things in advance of trial. And time would show Cameron was wrong – AQ was guilty of nothing.
AQ’s publicly expressed radical Islamist views were unattractive to many, myself included. But he stayed the right side of British law. The PM failed to take the principled position of recognising that free speech involves people saying things you hate, but rather played to the crowd by calling for his removal from the country.
The final outcome was right in one sense and but wrong in another. It was right, because AQ ended up in Jordan and at liberty, just as he would have been but for the judicial misdemeanours of Jordan in the first place. I suspect Jordan did that to him as part of a campaign of repression of political opposition. But it was wrong, because he was forcibly removed from Britain for alleged offences there was no evidence of, and with the Prime Minister cheering it on for dubious political reasons.
The writing is on the wall, migration is not going away and its effects make political types uncomfortable.
Politicians would probably like migration to ‘go away’ because it exposes a failure to deal with crime, with housing, with unemployment, with hospital provision and education provision and practically every other provision. Most politicians have already failed to deal with these things but migrants make useful whipping persons.
Migration is not going away though. Climate, war and media exposure make the temperate and easy going West attractive. Add the reality that the West is not breeding enough – not enough workers to pay off government debt and our poor sad politicians find themselves in a cleft stick. Migration looks set for the next 100 years, get used to it.
Crime will always be with us and rehabilitation is expensive and uncertain and a political football. Much mouthing of fine platitudes but not much looks like it will work. Criminally inefficient on the input side and criminally inefficient on the output side. Add to this the inability of politicians to encourage enough employment and we are all in for a bumpy ride with no money to pay for it.
In this environment the ECHR looks like a high class watchmaker who will be required to fix agricultural machinery.