Another new year, and another controversial human rights victory for a criminal. Fuad Awale was a violent thug and Islamist serving a life sentence for drug-related murder. In 2013, he took a prison officer hostage in an attempt to force the release of Islamic hate preacher Abu Qatada. After this episode he was moved to a close supervision centre, a unit meant to contain fanatical prisoners like him. There, his rights of association with other prisoners were understandably severely restricted, particularly as regards other Islamists (he had asked, for example, to chum up with the Islamic fanatics who had murdered Private Lee Rigby, a request that did not go down well). The result was that he spent a great deal of time on his own.
In 2024 Awale sued the Home Office over this. He won, partly on a technicality (which does not concern us here), but also on the basis that his right to a private life under Article 8 of the ECHR had been infringed because he had not been given sufficient opportunity to associate with other convicts. On New Year’s day, David Lammy revealed that the Home Office had paid him £7,500 for the distress he had suffered, as well as paying his very considerable legal costs.
There is little doubt that in law this is right: on the accepted Strasbourg-inspired interpretation of the ECHR, Awale’s human rights were breached. There is equally little doubt, however, that this case shows in small compass precisely what is wrong with the ECHR and why it is imperative for this country to leave it.
Awale’s claim is about the least deserving imaginable
First, Awale’s claim is about the least deserving imaginable. Not only does it create enormous difficulties for the segregation of the dangerous and possibly psychotic, something vital to maintaining what fragile peace remains in our prisons. More to the point, it is hard to see Awale’s distress as anything other than self-inflicted. If you take screws hostage and threaten to kill them, you should expect some pretty restrictive treatment in return and shouldn’t be able to complain if you get it.
Secondly, the running of many areas of public life, including the administration of prisons to prevent their becoming powder-kegs, requires a good deal of individual judgment, sensitivity and inspired guesswork. The effect of this judgment, applying the legalistic approach of the ECHR to such matters, is to require an extension of bureaucratised decision-making where it is least suited. If such bureaucratisation is indeed required by human rights ECHR-style, this of itself is a good reason to keep them at arm’s length.
Third, this episode shows neatly and comprehensively what is wrong with the way the ECHR is now applied. Article 8, to remind you, gives everyone the right to ‘respect for his private and family life, his home and his correspondence’. Fair enough. We can, most of us, imagine what this means: state knocks on the door in the middle of the night without very good reason, for example, or constant spying on communications to keep us ideologically in line, and so on.
Few outside the rarefied space occupied by human rights lawyers and academics would, however, imagine for a moment that these same words obliged a government to give an extremely dangerous and recalcitrant convicted murderer the right in prison to associate with other inmates seen by those in charge as presenting a danger of providing a breeding ground for spreading the virus of fanaticism. Even fewer would see this as a matter so important that the democratic process could not be trusted and had to give way to the decision of a bench of supranational unelected judges.
Yet that is the approach of the Strasbourg court that applies the ECHR. The rights in it are still seen as too important to trust elected governments with. For many years, though, this same court has applied the doctrine that the Convention is a ‘living instrument’ – an apparently innocuous phrase meaning that the original wording and understanding of the provisions is of comparatively little importance compared with what the court sees as the necessity to reflect contemporary liberal views.
All this, to be fair, makes the government very uncomfortable. David Lammy is undoubtedly unhappy with the Awale saga; he has confirmed that he is mulling possible legislation to deal with the problem. But here’s the difficulty: legislation requiring a different result would put us on a collision course with Strasbourg. If Strasbourg ruled against it, we would have a choice: climb down or withdraw from the ECHR.
The latter is the only honest course, a point already taken by the Tories, Reform and an embarrassingly large number of voters. But whether Labour will ever be able to swallow this, especially with human rights lawyer Starmer heading it, is an open question. For the moment at least, the strains within the party over the human rights convention are, one suspects, only going to get worse.
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