“Human rights law thwarts payment to victims of IRA,” reported the Daily Telegraph on June 11. It was about a statement made on behalf of the Government by Viscount Younger of Leckie, in a debate in the House of Lords on the Asset Freezing (Compensation) Bill. He described it as seeking “to prevent the release of frozen assets in the UK that belong to Libyan persons involved in supplying arms used in terrorist attacks in the UK, so that they could be used as compensation for the victims”.
That the victims of the IRA have not received compensation is a terrible injustice. But would that injustice be avoided if we had no human rights law? Lord Younger argued that the Bill could deny a fair trial to the Libyan owners of the assets, in breach of Article 6 of the European Convention on Human Rights (ECHR), or a breach of their right to enjoyment of their property in Article 1 of Protocol 1 of the convention.
I do not know whether he is right or wrong about the effect of the Bill. Like the promoters of the Bill, I would wish that the victims should be compensated out of the frozen assets, if that can be done in accordance with the rule of law.
So what is the law that Lord Younger was referring to? And why did he refer to the ECHR, and not, for example, to English common law or even Magna Carta?
Article 6 of the ECHR states that “everyone” is entitled to a fair trial. Article 1 of Protocol 1 says that “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law.”
These provisions would not be in the ECHR but for the famous Article 29 of Magna Carta, which is an English statute that has been in force for 800 years.
As everyone knows, or ought to know, Magna Carta says that no one shall be deprived of their property except by a lawful judgment and the law of the land, and that the monarch “will not deny or defer to any man either Justice or Right”. “Everyone” includes foreigners – even unpopular ones.
English common law also recognises a right to property and to a fair trial, and English law applies to Libyan-owned assets in England. Fair trial rights and property rights under English law are, in fact, stronger than the rights under the ECHR. So why refer to human rights law instead of to English law?
Lord Younger would have described the Bill better by saying that it was intended to prevent the release of frozen assets allegedly belonging to those responsible for the atrocities. So before those assets can be used to compensate the victims, there may need to be a trial of the question of the Libyan owners’ responsibility for the crime (if it is not admitted by them).
The injustice suffered by victims of even the most atrocious crime is not a reason to impose a second injustice on an innocent person who is not shown to have been responsible for that crime.
I do not know whether, in this case, Lord Younger was right to suggest that the Bill might cause such an injustice. But his remarks have been understood to mean that it would be just for the owners of the frozen assets to be deprived of their property to compensate the victims, and that human rights law is causing an injustice by preventing that from happening.
Lord Younger may not have intended that meaning. But the misunderstanding would not be possible if he, and other ministers, referred to English law instead of human rights law. When English law is the same as human rights law, there is usually nothing to be gained by referring to the latter. Human rights law sets a common standard for the laws of all countries. Britain has met that standard for as long (and as completely) as any other nation.
The victims of even the most atrocious crimes cannot wish to abolish the right to a fair trial for everyone. Nor can they wish to do away with the right of property guaranteed by English common law. For centuries Britain has been the home of liberty and the rule of law. The point of human rights is to guarantee justice to all mankind. It is sad indeed that in Britain the words “human rights” should have come to connote injustice.
Sir Michael Tugendhat is a retired High Court judge
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