There was a flutter of interest on Christmas Day when, in festive mood, the Society of Black and Asian Lawyers tweeted the following:
“A little bird at the @ukhomeoffice tells us @pritipatel has asked Civil Service to scope a policy paper on the restoration of the death penalty in the #NewYear2021 and the #Tories have the majority to do just that.”
In the past Ms Patel has expressed support for capital punishment. In 2006 she told the Mail on Sunday:
“If you had the ultimate punishment for the murder of policemen and other heinous crimes, I am sure it would act as a deterrent. We must send a clear signal to people that crime doesn’t pay. The punishment must fit the crime and yes, I do support capital punishment.”
In a BBC Question Time programme in 2011 she said:
“I have said this before and I will say it again, I do actually think when we have a criminal justice system that continuously fails in this country and where we have seen murderers, rapists and people who have committed the most abhorrent crimes in society, go into prison and then are released from prison to go out into the community to then re-offend and do the types of crime they have committed again and again.
I think that’s appalling. And actually on that basis alone I would actually support the reintroduction of capital punishment to serve as a deterrent, because I do think we do not have enough deterrents in this country for criminals.”
“I have never said I’m an active supporter of it and [what I said] is constantly taken out of context.”
If her apparently contradictory public statements can be reconciled, and perhaps they cannot, her position seems to be that the death penalty should be reintroduced even though she has never actually campaigned for its reintroduction.
However, let us make the unsafe assumption that the Society of Black and Asian Lawyers are correct, and that she has commissioned a “scoping exercise” in the Home Office to advise her on the feasibility of bringing back the gallows. Brexit may have removed one potential obstacle: any moves to reintroduce hanging would have met with objections from Brussels; indeed it would have been unlawful under the EU Fundamental Charter of Human Rights, Article 2 (2) of which of provides:
“No one shall be condemned to the death penalty, or executed.”
Happily the team need not waste any time on the knotty problem of the exact status of the Fundamental Charter in UK law, because post-Brexit it has none.
So, aside from the many philosophical objections to the death penalty, what practical problems will Ms Patel’s scoping exercise into the establishment of a post-Brexit bloody code need to address?
The problems, even for a determined government with a sizeable majority, are considerable.
Leaving the EU has removed one international legal obstacle to the restoration of the death penalty, but restoration would break the United Kingdom’s obligations under two further treaties.
“The death penalty shall be abolished. No one shall be condemned to such penalty or executed.”
Protocol 13 was ratified by the UK in 2003. Unlike the earlier partially abolitionist Protocol 6 (which has also been ratified by the UK), it allows for no exceptions or temporary “derogations” in time of war or national emergency. The prohibition on the death penalty is absolute. It would be possible to “denounce” (leave) the Convention altogether, but short of that, legislation to restore the death penalty would place the UK government in breach of its treaty obligations under the ECHR; it would breach international law.
Even if we left the European Convention, the legal path to bringing back executions would still not be clear. Although the death penalty is not illegal under any general principle of international law, the UK is a signatory to a UN treaty, the “Second Optional Protocol to the International Covenant on Civil and Political Rights”, which provides:
The Protocol was ratified by the UK in 1999, it contains no “exit” clause and – as with the corresponding ECHR protocol – unless they have made explicit reservations (which the UK has not) – parties are not permitted to derogate from its provisions even during times of war or national emergency. That is not to say withdrawal from the Protocol would be legally impossible, but it would probably have to be accomplished under the provisions of the Vienna Convention. That is beyond the scope of this blog, but it is certainly not straightforward. Another problem for Ms Patel’s hard working team.
Neither the ECHR nor the UN treaty in themselves prevent Parliament reintroducing the death penalty. An Act of Parliament purporting to do so would have effect, and the direct sanctions for breaching international law are pretty feeble. As readers will readily recall, the UK government flirted briefly with what it called a “technical” breach of international law in the 2020 Internal Market Bill, albeit perhaps only as a negotiating ploy. Perhaps it could do so again, and this time mean it?
Perhaps, but restoration of the death penalty could not be dressed up as a “technicality”: it would be a clear and obvious breach of the UK’s treaty obligations. There are strong reasons of self-interest why governments tend to comply with treaties. It is in every country’s interests that once agreed, treaties can be relied upon.
Even President Erdoğan’s Turkey, which has cynically ignored or evaded various rulings of the European Court of Human Rights in specific instances, has nevertheless not gone so far as to restore the death penalty, despite the President himself and his Party publicly supporting such a measure. Restoration would require a change in Turkey’s constitution, but a further and not insignificant deterrent is that it would also involve denunciation of both the ECHR and the UN Protocol. Turkey does not want to be seen as a country that flagrantly ignores international law, and nor would it be a good look for Britain.
Realistically Britain could hope to join Belarus as the only European country with capital punishment only if it were also to join Belarus as the only European country outside the European Convention on Human Rights. Ms Patel might want to ask herself whether Britain should aspire to membership of a club which has Berlarus as the only other member.
The Christmas Eve Trade and Cooperation Agreement with the EU – assuming it comes into force – provides another obstacle to restoration. Part 3 of the Agreement sets out an elaborate and detailed framework for cooperation between Britain and the EU on criminal justice and security matters, including such matters as a replacement scheme for the European Arrest Warrant and the exchange of police intelligence, including vehicle details, DNA, finger-prints (“dactyloscopic data”), airline passenger data and so on.
What is in effect a preamble to Part 3 [LAW.GEN 3 (2)], provides:
“Nothing in this Part modifies the obligation to respect fundamental rights and legal principles as reflected, in particular, in the European Convention on Human Rights ….”
Restoring the death penalty would require either ignoring or denouncing the ECHR (or at least its anti-death-penalty Protocols), which would mean no longer “respecting the fundamental rights and legal principles as reflected … in the European Convention ….” That would entitle, and probably require – the EU to suspend its cooperation on criminal justice matters. The Home Office scoping team will want to consider whether the resultant diminution in the ability of the police to trace, capture and extradite an unspecified number of other murderers, terrorists and other serious criminals is a price worth paying in order to hang those who can still be caught without the need for international cooperation.
One unintended result of the Brexit negotiations has been to drive Northern Ireland closer to the Republic than it was before. Under the Northern Ireland Protocol the North remains in the Single Market, with unimpeded trade between the North and the South of Ireland (and the rest of the EU), whereas trade and some aspects of travel between Great Britain and Northern Ireland are subject to various rules and restrictions. The government considered this a price worth paying to preserve the open Irish border and the delicate settlement of the 1998 Good Friday Agreement.
Woven into the fabric of the Good Friday Agreement, and the Northern Ireland Act 1998 which implemented it, is an understanding, and a law, that the institutions of Northern Ireland, including the Assembly, will not act in a way that is incompatible with the ECHR.
Ms Patel’s team will need to give careful consideration to how the restoration of the death penalty will affect Northern Ireland. Whilst theoretically possible, it is virtually inconceivable that the Westminster Parliament would legislate to reintroduce the death penalty into Northern Ireland. To do so would be the most inflammatory breach of the Agreement that one could possibly imagine. Nowhere in the British Isles has capital punishment had an unhappier and more politically charged history than on the island of Ireland.
But even if its reintroduction was restricted to England and Wales, that would have still have huge ramifications for the Northern Irish settlement. As we have seen, the death penalty could only be lawfully reintroduced once the UK has withdrawn from the European Convention. Such a withdrawal would tear the heart out of the Good Friday Agreement.
One way around that might involve somehow deeming that the Convention, or at least the rights recognised in the Convention, would continue to apply to Northern Ireland but not in England and Wales. Even if that were to be accepted by the people of Northern Ireland, the result would be to separate the province yet further from the rest of Britain, and to bring it constitutionally still closer to the Republic.
Another unwanted consequence is that it might provide a bonus for fleeing criminals. How would the Courts of Northern Ireland, still applying the law of the European Convention, deal with a request to prevent the return of a suspected murderer – perhaps a terrorist from a rogue or resurgent IRA – back to England? To be compliant with the Convention right not to be executed the Northern Ireland courts could not do so without an assurance from the UK government. It would be a bizarre situation in which one part of a sovereign country refused to hand over criminal suspects to another, or in which fleeing to another part of the country resulted in a murderer receiving more lenient treatment.
Many of the problems that apply to Northern Ireland would apply with equal force to Scotland. Criminal justice is a matter within the competence of the Scottish Parliament, and there could be no serious question of Westminster legislating to reintroduce the death penalty into Scottish law.
Even if Ms Patel limited her ambition to restore the death penalty to England and Wales (and the Welsh, like the Irish and the Scots might have something to say about that), she could not lawfully do so without withdrawing from the European Convention on Human Rights. That might be politically possible, and even quite popular in England.
The position in Scotland would be very different. As with Northern Ireland, compliance with Convention rights is woven into the Scottish devolution settlement. A move by the United Kingdom government to leave the ECHR in order to introduce the death penalty in England would meet with a distinctly cool reception north of the border. Under what is known as the “Sewel Convention” the Westminster Parliament will not normally legislate on devolved matters without the consent of the Scottish Parliament. The Convention would certainly be engaged either by an Act of Parliament to repeal the Human Rights Act (which incorporates the ECHR into domestic law), or by an Act to take Britain out of the ECHR altogether, and it is impossible to imagine that any currently foreseeable Scottish Parliament would ever give its consent. That would not in fact create a legal obstacle as the Sewel Convention has no legal force (see Miller (No. 1)  UKSC 5), but it is hard to imagine many things that would provide a more powerful argument for advocates of Scottish independence than an Act to remove human rights from Scottish law, against the wishes of the Scottish Parliament, particularly so if the main point of the exercise was to allow English courts to hang people.
But let us suppose that somehow the objections of the Irish, the Scots and the Welsh were overcome, that Ms Patel withdrew the UK from the treaties banning the death penalty and found herself, at last, in a position to restore the gallows to its traditional place at the apex of English criminal law. Any method of execution other than hanging might be more cruel and it would certainly be less British. The two last surviving British hangmen sadly both passed away in 1992, but let us further suppose that Ms Patel was able to train up some hangmen (and hangwomen too because a modern profession would need to demonstrate more diversity than was traditionally the case), perhaps drawing upon the considerable expertise still existing in our former colonies in Singapore or Pakistan: given the nationwide shortage of trained executioners in this country an Australian-style points based system would ensure at least temporary entry without impediment to anyone suitably qualified.
Who would then be hanged? Just murderers or perhaps some rapists and drug smugglers too? To start with it would probably be overly ambitious to extend the death penalty to non-murderers, although we could perhaps learn from China and various South East Asian and Middle-Eastern countries where crimes as diverse as drug smuggling, corruption and blasphemy are deterred by the existence of the death penalty.
Given the liberal attitudes of many judges, Ms Patel is unlikely to want to hand too much discretion to sentencers, so as in the past the death penalty would have to be mandatory in at least some cases. For those worried about potential miscarriages of justice Ms Patel has herself suggested an additional protection against hanging the wrong people: the death penalty should only be imposed where “you have ultimate burden of proof.” These are ordinary English words which can be inserted into the relevant statute. What they actually mean can be left to the good sense of jurors.
I think at this point the Home Office scoping exercise would have run its course. Whether, as in China, the organs of executed criminals should be sold to those in need of transplants would be a matter for the Department of Health.