A strange irony: How the EU withdrawal process ended up saving the Human Rights Act

Dr Frederick Cowell, Lecturer in Law, argues that the UK’s exiting the EU may have saved the Human Rights Act and secured Britain’s long term future as party to the European Convention on Human Rights (ECHR).

The Brexit process has, in short, pushed the UK government away from what was, until recently, a clearly stated policy – to repeal the Human Rights Act 1998 (HRA), replace it with a British Bill of Rights and eventually withdraw from the ECHR. Both a referendum on Britain’s membership of the EU and HRA repeal, were in the Conservative Manifesto for the 2015 General Election. Repeal of the HRA, which brings the ECHR into UK law and requires UK judges to take the decisions of the European Court of Human Rights into account, has been a stated aim of the Conservative Party since 2006. In fact, its position on the HRA was clearer in its 2010 manifesto than its commitment to EU withdrawal. Coalition with the Liberal Democrats and the creation of the Commission on a British Bill of Rights appeared to kill the idea but, in 2014, the Conservative Party Published its proposals for a British Bill of Rights to replace the HRA.

Entitled Protecting Human Rights in the UK, it proposed breaking the link between UK courts and the European Court of Human Rights, and withdrawing from the ECHR if that was not possible. If implemented, this would have left the UK the only nation in continental Europe (apart from Belarus) that was outside the ECHR. It would likely have been incompatible with the Treaty on the European Union, which commits EU member states to respecting human rights, as defined by the ECHR, as a core EU value. However, as the 2014 policy document went onto note, ‘our relationship with the EU will be renegotiated in the next parliament’ and if there were any problems with the UK’s new bespoke human rights agreement this would be addressed ‘as part of the renegotiation.’ Linking leaving the EU with ECHR withdrawal made sense in terms of political framing. Although being outside the EU has no bearing on ECHR membership – Norway and Switzerland are not EU member states but have been party to the ECHR for almost half a century – the European Court of Human Rights was considered another ‘foreign court’ in the newspapers and political circles that would go onto become the most enthusiastic Brexit supporters.

There is no evidence that renegotiating EU values so as to allow the UK to withdraw from the ECHR but remain in the EU was ever seriously discussed during David Cameron’s attempted renegotiation of EU membership in late 2015. Given that both the EU Justice Commissioner and the President of the European Commission had indicated a few years earlier that any member state attempting to withdraw from the ECHR would raise concerns ‘as regards the effective protection of fundamental rights’, it is highly unlikely that Cameron would have been successful even if he had tried. After winning the 2015 General Election the entire project appeared to slow down; the then Justice Secretary Michael Gove promised proposals on a British Bill of Rights to repeal the HRA within months but, by the end of 2015, nothing had been published. By then academics and legal commentators had started to highlight the constitutional difficulties of HRA repeal, especially in relation to devolution, but the government continued to signal they were fully committed to HRA repeal.

In June 2016, when Theresa May became Prime Minister, she was expected to continue with the policy – she was a long-time opponent of the HRA from her days as Home Secretary, when she infamously and incorrectly claimed that HRA had blocked her from deporting someone because of their pet cat. But, in December 2016, the Attorney-General Jeremy Wright announced that HRA repeal was delayed until after the conclusion of Brexit. In the 2017 Conservative General Election Manifesto HRA repeal and ECHR withdrawal was effectively cancelled for the duration of the next parliament. This was far from popular among the Conservative Brexit supporters but the numbers in the 2015-2017 parliament made repeal difficult (a problem which worsened after the 2017 election). Also, with all of the constitutional difficulties over Brexit, there was little appetite to create an additional set of constitutional problems.

Since the autumn of 2017, the European Parliament has been clear that an important component of a future EU-UK relationship would be the UK’s continued ECHR membership. In the summer of 2018, the European commission draft report on future security cooperation again made membership of the ECHR an essential condition. Theorists of international relations and international law have argued that one of the core reasons for states joining the ECHR was to create a form of democratic lock-in, where the rights contained in it and the frameworks designed to protect them would be locked in place, in part because it would be hard for states to leave the Convention. Although it is superficially easy for a country to leave the ECHR, an exit mechanism is contained in Article 58 of the Convention and there are no direct economic consequences to a state for doing so, the ECHR’s interconnection with other European institutions creates a layer of political restraints constraining exit. The prospect of an exit agreement was clearly used as a lever by the European Parliament in their March 2018 resolution, which required any future trade agreement to be in “strict accordance” with EU values, effectively keeping the UK in the ECHR.

This could be important for securing the HRA’s future because there remains a significant political appetite for its repeal. Human Rights campaigners in the UK are often reassured by polling showing that HRA repeal is not a high public priority. But polling taken over a number of years in response to controversial or high profile decisions from the European Court of Human Rights has identified a significant degree of sympathy for the arguments advanced by the ECHR’s critics. Many of the arguments ranged against both the EU and the ECHR deploy what Fiona de Londras calls the ‘new sovereigntism’ argument – the idea that states should only engage and comply with international courts as and when they want to. Dominic Cummings, the leading political strategist for the Vote Leave campaign, announced earlier this year that he wants a referendum on the ECHR, noting that many leave voters would be ‘mad’ when they realise the UK was still party to it. Given this context, the external economic and political forces locking the UK into being a party to the ECHR as part of the Brexit process have probably secured the HRA’s future – for now.

This piece was first published on LSE’s blog

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Crime and global justice: the dynamics of international punishment

Daniele Archibugi, Professor of Innovation, Governance and Public Policy at Birkbeck, and Alice Pease, a researcher working on a modern slavery campaign, discuss a new system of global criminal justice which has emerged over the last quarter of a century, and which they have written about further in their new book.

The Hague, International Criminal Court

International criminal justice is still sailing in uncharted waters. At the end of 2017, after 24 years of activity, the International Criminal Tribunal for the former Yugoslavia (ICTY) closed its doors after handing Ratko Mladić a life sentence and the spectacular live suicide of Slobodan Praljak. In 2018 we will celebrate – with little enthusiasm – the twentieth anniversary of the International Criminal Court. The great hopes that impunity of governors would have been contrasted by an emerging global justice have faded away. Where are we at? Our book tries to outline the strengths and weaknesses of the new international criminal justice system which emerged at the end of the Cold War, to identify its connection with the post-World War II tribunals established at Nuremberg and Tokyo and to explore how it could further help to protect human rights in the changing political contours of the twenty-first century.

Is international criminal justice an effective tool to prevent atrocities and to hold powerful politicians accountable? An assessment of what has, so far, been delivered by international criminal justice is highly unsatisfactory. Those indicted at the bar often appear to be mere scapegoats and seldom have the trials effectively contributed to reconciliation in areas devastated by civil wars. More seriously, some of these trials have been shows of power used by wars’ winners to discipline their opponents.

Is this motive enough to abandon altogether the idea of a supranational system of criminal justice? This is the core question addressed in our new book, Crime and Global Justice. Even if, so far, it has been highly selective, all the defendants judged by international trials have committed atrocious crimes. It is certainly true that many authors of international crimes are still at large, and far too many have not been targeted at all by any investigation. But the fact that the international judicial system is not able to incriminate all culprits is no justification for letting them all off the hook.

Saddam Hussein, who was hanged in 2006 after being convicted of crimes against humanity.

While much of the existing literature has addressed the issue by exploring the potentials of the judicial devices available, we have approached it from a different perspective, namely to look at a few spectacular trials with very different outcomes. We have tried to show that the incrimination of Augusto Pinochet by a Spanish judge helped Chilean society to face up to its own past. Judging Slobodan Milošević while ignoring the war crimes committed by NATO in its war versus Serbia showed instead how biased international justice could be. The conviction of Radovan Karadžić gave at least some solace to the victims of the civil war in the Balkans. The hanging of Saddam Hussein led to an explosion of sectarian violence in Iraq as well as in neighbouring countries and almost succeeded in transforming one of the most brutal dictators of the twentieth century into a martyr. The fact that Sudanese President Omar al-Bashir, after two warrants of arrests were issued in 2009 and 2010, is still firmly in control of Sudan has seriously discredited international justice.

We argue that so long as international criminal tribunals continue to operate in an inter-governmental logic, it will hardly be able to deliver its promises. Governments are providing the budget, selecting the judges, even providing the prisons for the few convicted and this seriously hampers the independence of the judicial power. The hope of a genuinely impartial judiciary will, therefore, rest on the ability of civil society around the world to pressure the official institutions through opinion tribunals, independent investigations, and by carefully watching the proceedings of the International Criminal Court.

The book makes ample reference to films and novels that have been inspired by controversies associated with the global criminal justice system. We hope very much that this wealth of non-academic sources will motivate students to engage with the question of global criminal accountability.

Crime and Global Justice: The Dynamics of International Punishment is available from Polity. 

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Why are women prisoner numbers rising so rapidly?

Catherine Heard, from the Institute for Criminal Policy Research (ICPR) at Birkbeck, discusses the latest data released in the World Female Imprisonment List. Catherine directs the World Prison Research Programme at ICPR, which hosts and publishes theWorld Prison Brief.

This week at ICPR, we released the most comprehensive global dataset ever produced on women prisoner numbers. The fourth edition of our World Female Imprisonment List – published on 9 November – shows that the world’s female prison population has increased by about 53% since 2000. In comparison, the male prison population has gone up by around 20%. Numbers of women prisoners are rising in every continent of the globe, with significant increases reported in both developed and less developed countries.

The surge in numbers of incarcerated women is all the more troubling given the high levels of vulnerability we know exist among women who get caught up in criminal justice processes. Women and girls in prison usually come from backgrounds of disadvantage. They are highly likely to have been victims of crime themselves and are far more likely than other women to have histories of trauma, abuse, neglect and mental ill health. The World Health Organisation estimated in a 2009 report that up to 80% of women prisoners have an identifiable mental illness.

For virtually every country across the globe, the List gives information on the total number of women and girls in prison; the percentage of that country’s prison population comprised by women; and the number of imprisoned women and girls per 100,000 of the national population (the ‘prison population rate’). The List also includes information about trends in female imprisonment, at national, regional and continental levels. For most countries, the List gives trend data back to 2000 and at intervals since. (On the World Prison Brief website, trend data going back much further in time are available for many countries’ overall imprisonment levels.)

The List shows, for example, that in England and Wales, the total number of women prisoners has fallen somewhat since the high levels seen in 2005 and 2010, although it’s still higher than it was in 2000. We learn that our female prison population rate is 6.7 per 100,000 of the general population, compared with the Netherlands’ rate of 3.2 (reduced from over 11 per 100,000 in 2006).

Some of the biggest increases have occurred in countries struggling with severely overcrowded prisons, where conditions are already reported as inhumane. In El Salvador, for example, female prisoners are now at 10 times the level they were in 2000, while in Cambodia and Indonesia, numbers have increased six-fold. The data present a worrying picture of uncontrolled growth in numbers, often in countries whose prison systems are being expected to deal with ever-larger influxes, while deprived of the resources to do so.

If we set these new figures within the wider context of what we know about prison conditions and human rights infringements in some parts of the world, the implications are alarming. In Brazil, for example, where around about 44,700 women and girls are now in prison – more than four times the number in 2000 – severe resource constraints make it impossible for the country’s prison system to comply with laws stipulating that women prisoners be housed in separate facilities from men. As a result, some women are held in designated wings of men’s prisons, leading to a risk of assaults and violence from male prisoners and staff, as Human Rights Watch has reported. Female prisoners who are held in women-only prisons endure appalling levels of overcrowding and a lack of access to even basic medical care and treatment.

Our prisons research at ICPR aims to bring about a deeper understanding of the many interwoven factors that combine to drive increases in countries’ use of imprisonment and to find concrete, practical solutions to end the unsustainable increases in imprisonment levels that we have seen in recent history. To do this, we need to focus on providing a much better account of who it is that our states choose to imprison, and why.

This is the aim of our current project, Understanding and reducing the use of imprisonment worldwide, which we are undertaking in collaboration with a network of NGOs, academics, lawyers and criminal justice practitioners. The project entails an in-depth exploration of imprisonment in 10 jurisdictions across all five continents. Those countries are Kenya, South Africa, Brazil, the United States, India, Thailand, England & Wales, Hungary, the Netherlands and Australia. Among these are countries with some of the largest prison populations in the world: the USA, Brazil, India and Thailand are all in the top six globally. Most of these 10 countries have seen very significant increases in their female prison populations since 2000, as the List shows.

In our report, Prison: Evidence of its use and over-use from around the world, we discuss some of the key themes to be addressed if we are to reverse this worrying trend of rising prison populations. Perhaps the most challenging, yet important, among these themes is the need to ask what purposes imprisonment can reasonably and realistically be expected to serve, both as a matter of general principle and in individual cases.

Women across the world are predominantly incarcerated for minor, non-violent, property or drug-related crimes and are often primary carers for one or more children or older family members. This surely suggests that the economic and social costs of imprisoning women will, in most cases, outweigh the supposed benefits, which should prompt us to look more carefully at whom we imprison and ask, in every case, why we imprison and what we expect prison to achieve.

A note on the data

Compiling the List and all the comparative and trend data it contains is no mean feat – one that Roy Walmsley has undertaken every year since the World Prison Brief was founded in 2000. Having to work to the same cut-off date for all countries inevitably means that, by the time the List is published, more recent figures will have been released for many countries. People wanting to ensure they have the very latest data available should always check the World Prison Brief website – whether they are looking for data on a particular country or region, or want to see how countries rank globally.

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The use and over-use of prison around the world

Catherine Heard, Director of ICPR’s World Prison Research Programme, writes on a new report looking at disparities in prison use in ten countries, across five continents.

prison-report-launchMarch 16th saw the launch of our new report, Prison: Evidence of its use and over-use from around the world.

Over 40 guests came to the launch (kindly hosted by the law firm Clifford Chance) to hear about the report’s highlights and watch presentations by experts on imprisonment in Brazil and the Netherlands, two of our featured countries. The event was also addressed by speakers from the international human rights NGO, Fair Trials, who co-published the report and are ICPR’s partner on the wider project – of which the new report is the first output.

The human stories behind the data

Given ICPR’s strong focus on prison statistics (as hosts and compilers of the World Prison Brief) we want to ensure this project never loses sight of the many ways prison affects people: not only those imprisoned, but their families, their wider communities and the people who work in prisons.

That is why a core element of our methodology in the wider project is about mapping the ‘custody journey’ in each country. That means drawing on real cases to understand the lived experience of criminal justice and imprisonment – after arrest, in pre-trial detention, during custodial sentences and after release.

Every human story behind a prison statistic has something to tell us about how a particular country uses imprisonment to respond to crime. The importance of listening to the human story came out clearly from the presentation by Jago Russell and Alex Mik of Fair Trials, about their work with individuals who have experienced unfair treatment in criminal justice systems. They played prison-report-launch2a one-minute animation by the Royal College of Art and filmed interviews with three people who have experienced pre-trial detention in different European countries. These can be viewed on Fair Trials’ website.

I was struck by what Jago had said in his Foreword to our report: ‘Statistics alone can sanitise reality – they do not speak to the violence, intimidation and isolation that are part of the daily experience of custody’.

Brazil’s recurring nightmare

Who better to pick up this theme than Dr Sacha Darke, from the University of Westminster? Sacha has visited 30 Brazilian jails and is an expert in the country’s sad history of uncontrolled growth in prisoner numbers – Brazil has seen prisoner numbers increase twenty-fold from around 30,000 in 1973 to over 600,000 today – and the violence and horror this has unleashed. He showed images from recent massacres and riots in prisons in northeast Brazil (discussed on pages 8 to 10 of our report). He then described the importance of prisoner governance, and organised crime group affiliation in Brazil’s prisons. Organised crime groups are by-products of wholly inadequate staff/prisoner ratios. In many of Brazil’s prisons, the role of staff is essentially to guard the perimeter, while prisoner ‘trusties’ are left to organise, arbitrate and discipline on the inside.

It was clear from Sacha’s presentation that Brazil’s prisons have always been in crisis and that there is no real prospect of enough capacity being built to change this. But, on a brighter note, he spoke of his visits to some of the country’s ‘community prisons’. These first emerged in the seventies in São Paulo and, though few in number, they are very different from the hellish, overcrowded prisons that prevail in Brazil. There is close collaboration between the prisons and prisoners’ families and communities. Many ex-prisoners come back as volunteers. Governors and senior managers are often former prisoners. Sacha referred to Fiona Macaulay’s research on Brazil’s community prisons, which have been praised as exceptionally humane in approach.

The Netherlands: reversing the punitive turn?

It was then over to Professor Francis Pakes (University of Portsmouth) to address the question: how did the Netherlands reverse its punitive turn? As explained in our report (page 21), after decades of low imprisonment levels, the Dutch prisoner rate surged from the late eighties, increasing by 200% and peaking at 134 per 100,000 in 2005. Interestingly, despite a strong Dutch tradition of criminology – and good statistical data – there is no consensus on precisely why the subsequent turnaround happened.

After hearing Francis speak, I was confident that in choosing the Netherlands we’d picked the right country to contrast with the high incarcerators featured in this report. There is a lot we can learn from the Netherlands. Maybe our project will contribute to the on-going inquiry about how the Dutch turned around their prison juggernaut.

FURTHER INFORMATION

Understanding and reducing the risk of imprisonment: interview with Catherine Heard

Report authors

Dr Jessica Jacobson, Director of ICPR
Catherine Heard, Director of ICPR’s World Prison Research Programme
Helen Fair, a Research Fellow at ICPR·

Read the press release about the report.

The World Prison Brief The statistical data in the report are sourced from the World Prison Brief, compiled by Roy Walmsley and hosted and published by ICPR. This unique and internationally renowned online database contains a wealth of information on prisons and the use of imprisonment in 226 independent countries and dependent territories around the world.

The Institute for Criminal Policy Research (ICPR) is based at the Law School of Birkbeck, University of London. ICPR conducts policy-oriented, academically-grounded research on all aspects of the criminal justice system. ICPR’s work on this report forms part of ICPR’s World Prison Research Programme.

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