Abu Qatada & Derrick Kinsasi: The Conservative Case for supporting the European Convention on Human Rights

Both Theresa May and the Justice Secretary Chris Grayling have called for Britain to consider repealing the Human Rights Act and withdrawing from the European Convention on Human Rights. It is a populist call that they probably calculate will win them votes.

 But there is in fact a strong Conservative case for supporting the Act and the Convention, which was drafted very largely by David Maxwell-Fyfe, later a Conservative Home Secretary and Lord Chancellor.

 Conservatives have had a long-standing distrust of untramelled democracy. Most Conservatives believe that majorities do not have an unfettered right to impose their will upon minorities, even when the minority in question may be as small as a single individual. Speaking in the 1976 BBC Dimbleby Lecture1 Lord Hailsham famously articulated this distrust by warning of the dangers of what he called an “elective dictatorship.” He was clear about the solution:

 “I envisage nothing less than a written constitution for the United Kingdom, and by that I mean one which limits the powers of Parliament and provides a means of enforcing these limitations either by political or legal means.”

 The Human Rights Act and the European Convention can easily be accommodated within this Conservative tradition; and all Conservatives should positively welcome the limitations it places on the power of Parliament and Ministers to behave oppressively towards individuals.

 Two recent cases have demonstrated just how well existing human rights laws can operate to ensure that Ministers act properly.

Abu Qatada has finally been deported. The nub of the issue was whether we should have expelled the preacher to face a trial in which important parts of the evidence against him had been extracted from prisoners in torture chambers. One does not need to be a bleeding heart liberal to believe that the courts were right to refuse to play any part in a process that would then have amounted to a judicially sanctioned lynching. Any true Conservative should have been revolted by that prospect.

 Thanks to the European Convention both British and Jordanian governments were forced into a deal whereby evidence obtained by torture cannot now be used at his trial in Jordan. He is legally out of the country and his trial will be fair. The process took a long time, but that is a small price to pay to keep justice free of the corruption of torture.

 The rather less publicised, though still controversial case was that of Derrick Kinsasi, a 22 year old Congolese man convicted of looting in the 2011 London riots. Mrs May attempted to deport him but he is now to be allowed to stay in the UK, unless of course Mrs May, in what would be a curious reversal of her current line that there are too many appeals in such cases, decides to appeal.

 If she does she will lose. Mr Kinsasi came to this country with his brother when he was 10 years old. His father had been murdered in the “Democratic” Republic of the Congo. He did not ask to be brought here. He, his brother and his mother were granted indefinite leave to remain. Since settling here she has had 2 other children.

 He has not been to the Congo since he was 10. Of course he has distant relations there but he barely knows them. All his close family and friends live in this country. Until 2011 Mr Kinsasi had been quietly going to school and hoping to go to University to study graphic design.

 Unfortunately, along with many other young men and women when he was 19 he got involved in the 2011 London riots. He participated in the burglary of a Comet store. He was caught. He immediately admitted his guilt and in normal circumstances it is most unlikely that he would have received a custodial sentence at all for this his first, and only, offence. However, the courts decided to come down exceptionally hard on the rioters and he appeared before His Honour Judge Lyons at Wood Green Crown Court. Anyone who has practised at Wood Green in recent years will tell you that Judge Lyons is – how shall I put it? – no push-over. He gave him an 18 month sentence.

 Under S.32 of the UK Borders Act 2007 because he received a sentence of 12 months or more, his deportation was automatic unless, exceptionally, he could convince the Home Secretary that it would breach his right to a private and family life under Article 8 of the European Convention.

Mrs May was not convinced and decided to proceed with the deportation. The First Tier Tribunal supported her. It was this decision that was appealed to the Upper Tribunal Immigration Judge, Nathan Goldstein. His judgement (which is well worth reading) contains a fair amount of rather dense legal reasoning but it boils down to this: Mr Kinsasi had severed all connections with the Congo when he arrived in this country as a destitute and no doubt utterly miserable 10 year old boy. His home and his life are now in Britain. To send him to the Congo, forcibly breaking up his loving family, would have had (as Judge Goldstein observed) echoes of the punishment of exile. It would have been disproportionate to the single crime that Mr Kinsasi had committed. Judge Goldstein’s cautious legal language does not go far enough: it would have been an act of monstrous cruelty, comparable to a nineteenth century sentence of transportation (a vile punishment that was abolished, incidentally by a Conservative government, in 1868).

So all true Conservatives should give three hearty cheers: one each for Judge Goldstein, for the European Convention and for the Human Rights Act. We now have what Lord Hailsham, that wheezy old rabble rousing favourite of a many a Conservative Party Conference, wanted: an effective legal means of limiting the power of of an elected majority to behave unjustly towards its citizens.

11976 Richard Dimbelby Lecture The Listener October 21 1976

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

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