How the crackdown on terrorists can avoid the Human Rights Act trap

Some human rights lawyers have warned that emergency legislation to prevent automatic early release of convicted terrorists – confirmed by Boris Johnson at Prime Minister’s Questions today – may be unlawful and will be challenged in the courts. But the warning should not deter Parliament from enacting this legislation. It is for Parliament, not the courts, to decide how best to protect the public and how to treat convicted terrorists fairly.

In the wake of Sunday’s terrorist attack in Streatham, attention has rightly turned to the scandal of automatic early release of highly dangerous terrorists. Sudesh Amman, the Streatham attacker, had been released from custody in late January, having served half his sentence of three years and four months. While known to be highly dangerous, the Criminal Justice Act 2003 required his automatic early release; neither the parole board nor the government were able to prevent it.

The proposed legislation would ensure that this is a thing of the past and that convicted terrorists are not released automatically on expiry of half their sentence. Instead, they would be required to serve two-thirds of their sentence, at which point they will be eligible for parole. Convicted terrorists would be released before serving the full term of their sentence only if the parole board determines they pose no risk to the public. This change is intended to apply to terrorists already convicted and sentenced but yet to be released. This is vital, the government says, to protect the public from further attacks.

Ending automatic early release, including for terrorists otherwise soon to be released, is obviously sensible. But where lies the risk of legal challenge?

The claim is that changing the law to prevent automatic release of convicted terrorists is retrospective punishment, which is contrary to common law principle and, especially, to Article seven of the European Convention on Human Rights (ECHR).

The common law point can be swiftly set aside. While courts reasonably presume that legislation is not intended to have retrospective effect (especially in the criminal law context), the UK courts would have no option but to uphold it according to its clear terms.

The government today has a statutory duty to release a fixed-term prisoner as soon as they have served half his sentence. The forthcoming emergency legislation looks like it will apply to cases in which this duty has not yet occurred. It is unlikely that the courts would misinterpret this legislation to rob it of its intended effect.

Much more likely, however, is that litigation will be commenced under the Human Rights Act 1998, inviting the UK courts to make a declaration that the legislation breaches Article seven of the ECHR:

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“Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

Yet the government has a strong case to make in response. The emergency legislation will not impose a new, heavier penalty on any convicted terrorist than was applicable at the time the offence was committed, let alone the time of sentencing. Instead the legislation changes how the sentence that was imposed upon him is administered.

The House of Lords in 2004 (at the time our highest court) ruled that changes in parole eligibility after the date of offending but before sentence was imposed did not breach Article seven. The question the UK courts would now face, following subsequent case law of the European Court of Human Rights (ECtHR), is whether ending automatic early release changes the “intrinsic nature” of the penalty imposed.

Convicted terrorists, like others sentenced to a fixed period in prison, expect to be released after having served half their sentence. But they are also warned they could be returned to custody at any time if their license is revoked. In ending automatic early release, Parliament will effectively be keeping convicted terrorists in custody for longer than otherwise expected by changing the circumstances under which they will or may be released on license.

It is perfectly reasonable for Parliament to decide that no convicted terrorist is entitled to release before serving the full term of his sentence, especially if automatic early release would put the public in danger. To argue that convicted terrorists have a right to early release by virtue of the administrative rules governing release at the time of sentence, is to confuse the sentence they were ordered to serve with the conditions under which they serve or expected to serve it.

The UK courts should not declare that this legislation breaches Article seven. But even if they were to make such a declaration this would not mean that the legislation was unlawful or invalid.

Under the law of our constitution, the government and Parliament would remain entirely free not to change the law. Litigation might proceed to the ECtHR in Strasbourg. This would take some time, during which emergency legislation would have helped keep the public safe. If the ECtHR wrongly denounced the legislation as a breach of Article seven, it would remain for the government and Parliament to decide how or whether to respond.

Rather than trying to predict how the courts will rule, Parliament should decide for itself what changes to the law it thinks are justified to protect the public without unfairly treating convicted terrorists. It is entirely wrong to assert that in legislating as it saw fit Parliament would somehow be acting unlawfully.

The Human Rights Act seems to make a hotly-fought legal battle about the merits of this legislation inevitable. But the emergency legislation could simply say that the Human Rights Act does not apply to this legislation, which would prevent UK courts even considering an application for a declaration that it breaches Article seven. This would protect the courts from political controversy. However, it might also complicate enactment of the emergency legislation if, say, the House of Lords insisted on keeping in play the possibility of human rights litigation.

The alternative is that the government makes clear that it simply will not change this legislation even if the courts were to condemn it as incompatible with Convention rights. Such a declaration would not in any way treat the government as above the law, for the Human Rights Act itself systematically treats Acts of Parliament as valid and effective notwithstanding any incompatibility with Convention rights, even incompatibility declared by our highest courts.