What happened to the UK Bill of Rights? Not the 1689 version, a foundation stone of British liberties along with habeas corpus, trial by jury and limits on the executive power of the state. I mean the long-promised, but never delivered, overhaul of the law to stop insane decisions being taken by our courts to block the deportation of criminals and terrorists.
Two cases in recent days remind us once again of the failure to deal with this matter. The first concerns an Isis jihadist whom MI5 says poses a terror threat to Britain. The Sudanese man known as S3 has been granted the right to live in the UK despite evidence that he may be a danger and encourage other extremists to launch attacks in the UK.
He entered Britain 18 years ago as a political refugee yet was able to travel regularly to Sudan without any issues. While out of the country, he was stripped of his UK passport in 2018 but managed to sneak back illegally whereupon the Home Office sought his deportation. His case came up before the Special Immigration Appeals Commission (SiaC) where MI5 warned he was an Isis propagandist who spread vile material calling for jihad against the West. “There was a realistic possibility that [he] would seek to radicalise other individuals and encourage them to engage in Islamist extremist activities.”
But the judges said removing him would breach his Article 3 rights under the European Convention, allowed him to stay and granted him lifetime anonymity.
What to do about dissident Islamists has long been a problem because they tend to qualify as genuine asylum seekers. They have fled to countries such as Britain because they are at real risk of persecution, torture or death in their own country where they oppose the regime.
The impotence of the state in this regard was first demonstrated in the case of Mohammed al-Massari, a Saudi dissident scientist who was granted asylum in the early 1990s and then used his London base to champion Islamist causes.
Britain tried to deport him in 1996 but this was blocked by the courts on the grounds that he would be executed. An attempt was then made to send him to the Caribbean island of Dominica but this was thwarted as well. Massari remains in the UK. More recently, the “hate preacher” Abu Qatada fought off his removal to Jordan for years before his deportation under a deal that he would not be tortured.
The second example of where the public interest has been trumped by human rights involves Gjelosh Kolicaj, a dual-national Albanian crime boss jailed for money laundering. He has been allowed to remain in the UK after claiming that attempts by the Home Secretary to expel him breached his human rights.
The Home Office sought to remove his British citizenship and deport him after he was jailed for six years for smuggling £8 million of his gang’s profits out of the UK in suitcases that he brought on to planes using his British passport.
He was described by the National Crime Agency (NCA) as having a “senior and controlling role” in an organised crime group in the UK. The NCA warned that he posed a threat to the public and would return to crime on his release from prison.
However, a tribunal granted his appeal to stay because the Home Office failed to take sufficient account of his human rights as a British citizen with family in this country, and had erred in law by assuming deportation was automatic rather than discretionary. It should have considered, for instance, whether there was a real risk of future offending.
“By failing to exercise the discretion conferred by statute, [the Home Office] fell into legal error, with the consequence that none of the matters potentially relevant to the exercise of [its] discretion were considered at all.” Such an interpretation of the law seems almost Jesuitical in its tortured complexity. If there is a statutory block on removing foreign nationals deemed to pose a risk then it needs to be removed.
This, indeed, is why a British Bill of Rights was promised by the Tories in 2010 but dropped when they failed to win the election outright. It was resurrected in 2015 but fell by the wayside in the Brexit fall-out. In 2019, the manifesto on which Boris Johnson won an 80-seat majority promised to “update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government”.
Legislation was duly put before Parliament by Dominic Raab, the then justice secretary. In the political mayhem following Mr Johnson’s removal, the Bill was dropped, then reinstated and then, with Mr Raab’s removal from the Cabinet, jettisoned entirely.
The current Justice Secretary Alex Chalk told MPs that “we have decided not to proceed with the Bill of Rights, but the Government remains committed to a human rights framework that is up to date, fit for purpose and works for the British people.”
Fair enough, but what is proposed as an alternative? Leaving the ECHR, which some Tories demand, is simply a non-starter because it would not get through Parliament. It could be included in the party’s next manifesto, but the Tories are unlikely to win the election and it won’t happen under a Labour Party led by a human rights lawyer.
It was asserted that Mr Raab’s Bill of Rights was “a mess” though without any corroborating evidence as to why this was the case. Parliament was not given the opportunity to consider the measure and amend any flaws, while lawyers celebrated the Bill’s demise. The then president of the Law Society said: “We are pleased the Government has seen sense and decided not to pursue the Bill of Rights Bill, which would have been a step backwards for British justice.” Unlike, of course, allowing people deemed to be a danger to the public to stay in the country.
So what do they propose should be done to protect the country from terrorists and criminals deemed to be a threat to national security? The answer appears to be nothing. Our politicians are too craven and a lucrative, self-serving legal industry sustains the human rights edifice. The rest of us just watch on in disbelief and growing anger.