The Human Rights Act is not for politicians or lawyers, it's for people

‘I was as disappointed as any other Labour supporter,’ admits Sir Keir Starmer QC MP, recalling the moment he saw the BBC’s ?exit poll at 10 o’clock on general election night. ?The result was bittersweet for the Doughty ?Street barrister and former director of public prosecutions (DPP), who was nonetheless ?elected as the Member of Parliament for Holborn and St. Pancras, taking over from Labour veteran Frank Dobson.

‘I was obviously pleased to have nearly doubled Frank Dobson’s majority,’ he adds. ‘But, at a cost ?of the Labour party losing significantly, [it] means the first eight months have not been as good as ?if we’d won.’

As any new MP will attest, there is an inevitable period of adjustment to parliamentary life, partly due, Starmer explains, to the mundane problems any solicitor setting up their own office will be familiar with. ‘How does the IT work? Are there enough computers? Have I enough staff? Then ?there was the additional adjustment of going to ?the front bench. It’s been a period of big change.’

Following Jeremy Corbyn’s leadership election win in September 2015, Starmer was appointed as ?a shadow minister in Labour’s Home Office team. The barrister’s brief is not for a shrinking violet; ?it covers some of the most prominent and divisive issues of the day: immigration, refugees, and the Investigatory Powers Bill, otherwise known as the ‘Snooper’s Charter’. Fortunately, Labour has, in Starmer, an experienced advocate to cover these crucial issues. 

Refugees are – justifiably – high on Starmer’s agenda. He explains that while David Cameron’s commitment to take in 20,000 refugees over the next five years is welcome, it’s not nearly enough. The immigration debate is intrinsically linked with the highly anticipated in/out EU referendum, and Starmer is embarking on a three-month series of public meetings across the UK in an attempt to recast the debate and ensure Labour’s approach ?is ‘fully informed and up to date’. In the meantime, however, the government’s controversial Investigatory Powers Bill is expected to take up ?the bulk of his time.

Snooper’s Charter

‘First, let’s remember where we are,’ he starts. ‘We’re at the beginning of a scrutiny process. We’ve got several months’ worth of scrutinising a 300-page Bill. The devil is in the detail.’ Starmer’s initial thought, however, is that the Bill is ‘clearly needed’ as the current regime, the Regulation of Investigatory Powers Act (RIPA), is now ‘piecemeal’ at best. 

‘Although only 15 years old, it is increasingly seen as out of date and not capable of dealing with the issues that arise today,’ he observes. ‘Like everybody else, I firmly believe that the police and security need the powers that are necessary to keep the people safe.’ 

Named 2007’s QC of the Year in the field of human rights and public law, the silk remains wary of the government’s Snooper’s Charter. ‘There are some very intrusive powers that are being contemplated and, in a sense, the greater the power, the greater the need for scrutiny. The big issues at the moment are judicial authorisation of intercept warrants and the extent and robustness of all other safeguards.’

The proposals have received criticism from all corners, from lawyers, privacy campaigners, independent watchdogs, and tech giants alike. Google, Microsoft, and Facebook were among a host of household names to argue the plans were a ‘step in the wrong direction’, while the Information Commissioner’s Office has come out against infringements of individual privacy. The Bar Council and the Law Society have also expressed concern over impingements on legal professional privilege. 

Unlike many, the Doughty Street barrister has the benefit of experiencing both sides of the arguments, first in the representation of those concerned about the overreach of the state, such as the renegade MI5 officer David Shayler in his appeal against conviction for breaching the Official Secrets Act, and later as the head of the country’s prosecution service.

‘Before becoming DPP I saw an advance of arguments in relation to curtailing and regulating state power when it comes to intrusion and protection of information,’ he explains. ‘As DPP, I worked with both the police and security services on a number of difficult cases, not just terrorism. Communications data is used routinely in child sexual abuse, drugs, firearms, and trafficking cases. Many of the most serious cases could not have been prosecuted without communications data. 

‘To some extent I’ve got rare, if not unique, experience of having represented individuals ?but also using the regime as DPP’, he continues. ?‘And that’s what makes me absolutely clear that appropriate powers are needed for the police and security services. What comes with that is a very high threshold for safeguards.’

Human Rights Act

In the weeks following his party’s election disappointment, Starmer used his maiden Commons speech to defend the imperiled Human Rights Act, arguing that it was society’s poor, vulnerable, and bullied who would be affected ?most by the law’s repeal. Just a few months later, ?in September, he admitted that the introduction ?of the Tories’ British Bill of Rights was, however, likely. Considering the Lord Chancellor’s repeated delays in producing a Bill, is this a conclusion he maintains?

‘They need to be fought every inch of the way,’ he responds defiantly. ‘The Human Rights Act is a constitutional instrument of the first importance. ?It’s protected a huge number of vulnerable people. I’ve no problem with anybody wanting to improve human rights protection. My answer to them is: “Let’s craft a new statute, leave the Act in place, and add to it with new legislation.” Let’s not tear apart what we’ve already got.’ 

If there was one mistake Labour made when introducing the Act, it was that the law did not feel of – and was not supported by – the British public, the former human rights barrister acknowledges. ?‘It is time for ordinary people to own the Act,’ he adds. ‘This isn’t an Act for politicians or for lawyers, it’s for people.’ 

Yet Starmer has been encouraged by a grassroots campaign to save the embattled legislation: ?‘The social media campaign, the protests, the posters, could make the difference in saving the ?Act from the sorts of amendments the government wants to make. The government will not come ?back with something better than the Human ?Rights Act. Anybody who thinks this is an exercise ?in improving human rights protection needs to seriously think again. 

‘It is a great shame that here we are in 2016, about to embark on a battle to save the Human Rights Act, when we should be talking about how to extend protection into other areas beyond civil and political and into social and economic. We are re-fighting yesterday’s battle and that is deeply frustrating.’

Having practised from one of the leading human rights sets in the country, it should come as no surprise that the subject is one Starmer cares passionately for. In 2005 he won the Bar Council’s Sydney Elland Goldsmith award for his outstanding contribution to pro bono work in challenging the death penalty throughout the Caribbean and Africa. It is, therefore, understandable that Starmer strongly disagrees with the government’s recent foreign policy changes on capital punishment.

Last August, the foreign secretary, Philip Hammond, was accused of treating human rights as ‘dispensable’ after explicit mention of abolishing the death penalty was removed from the Foreign and Commonwealth Office’s global priorities list. The government decided to replace its ‘six global thematic priorities’ – the abolition of the death penalty, freedom of expression on the internet, torture prevention, business and human rights, women’s rights, and freedom of religion – with three broader, ‘flexible’ categories. This, the Foreign Office insists, does not represent a downgrading of its commitment to opposing the death penalty around the world.

‘It’s a retrograde step,’ disputes Starmer. ‘For the first time Foreign Office policy changed to a position which was never held by William Hague: to drop the emphasis on the death penalty. We should keep reminding the government that it should reverse its decision and put abolition and reduction of the death penalty back in as central to its foreign policy.’

Victims’ law

You can’t converse with Starmer for long before the rights of victims – and lack thereof – are mentioned. Under proposals for a victims’ law, published last February, judges would be required to control the treatment of vulnerable witnesses in court. The report by Labour’s Victims’ Taskforce contained 14 recommendations, including proposals to enable crimes to be reported elsewhere than to the police and a statutory duty on those working with children to report suspected abuse or face criminal sanction. 

In October 2015, the proposed victims’ law was introduced as a private member’s Bill. Having passed its first reading with cross-party support, the Bill is due to be considered again on 29 January. ‘It’s always difficult to get a private member’s Bill through parliament, but we envisage having a draft legislation which will be the gold standard for any Victims’ Bill. I’m hopeful we may actually have some real progress on victims’ rights in the next few weeks,’ says Starmer.

‘When it comes to sexual or physical violence, most victims don’t have the confidence to come forward,’ he continues. ‘That’s an absolute and fundamental problem. When victims do come forward, many, if not most, say they wouldn’t do it again. If you’ve got a criminal justice system which is not being accessed by very many, and those that do say they’re not going to again, that is a very powerful mandate for change. We can’t carry on with our heads in the sand.’

There are, however, concerns over how the law will work in practice, specifically in relation to mandatory reporting of suspected child abuse ?or neglect. Critics have suggested the law might become a system of reporting, not intervention, ?the so-called ‘Pontius Pilate’ effect. It could also turn ?child protection providers into investigators, not safeguarders. In Queensland, where mandatory reporting has been the law since 1999, a study by the state’s child protection commission found an ‘unsustainable increase in reports’ in 2013. This over-reporting, it was argued, can be damaging ?to families.

Other criticisms include depriving children of power by making their secrets public and catapulting them into the criminal justice system. Investigations could, subsequently, be frustrated by children who fail to cooperate. It is also thought to be counter-productive and consuming of already scarce resources during a time of austerity.

While not dismissive of these concerns, Starmer ?is steadfast in his belief that the UK needs such a provision. ‘There is too much evidence of individuals and institutions balancing the need to report suspicions of sexual abuse against other interests such as the reputational damage,’ he says. ‘Until you have a mandatory scheme they will always carry out that exercise. In the past they have come down on the wrong side of the line. 

‘I accept it has to be very carefully handled and crafted,’ he continues. ‘We must avoid over-burdening law enforcement agencies. I advocate a model that only requires reporting if proper policies have not been put in place and implemented.’ 

Conscious of the failings of laws found abroad, Starmer wants to see a bespoke reporting regime. ?‘I have looked at the models from Australia, Canada, and other places. I wouldn’t take an off-the-shelf scheme from any other country. I think we have to craft our own version to avoid the dangers, which I accept others have flagged. It’s a question of how do we have a scheme that works but avoids those risks.’

Prosecution problems

Starmer is no stranger to controversy. As DPP from 2008 to 2013, he oversaw several high-profile prosecutions, such as for the murders of Stephen Lawrence and Milly Dowler, hacking by journalists, and the now infamous ‘Twitter joke’ trial, to name but a few. The contentious issue of assisted suicide arrived early on his watch, with the right-to-die case of locked-in syndrome sufferer Tony Nicklinson particularly prominent. Along with the pressing question of how criminal justice agencies could improve the way they dealt with violence against women and child grooming cases, Starmer found himself spinning multiple plates during his five years as Crown Prosecution Service (CPS) head. 

It is arguable that his time as DPP was perfect experience for Starmer before entering politics. His decisions to – or indeed not to – prosecute have invariably led to critical comments in the populist press. Even now, almost three years after he stepped down, his decisions are subject to scrutiny. 

‘I took the view it was far better to be open about what we were doing, to issue guidelines, and to give reasons after the event,’ he explains. ‘I strongly felt my staff and I could only be held to account if people knew before the event how we would approach a decision and had our reasons afterwards so they could judge for themselves whether we had arrived at the right decision.’

The present DPP, Alison Saunders, has come under increasing pressure to step down following several controversial decisions, such as the lack of prosecution of the recently deceased Lord Janner. Knowing better than anyone the difficulties related to the role, Starmer has a strict policy of not commenting on decisions made by the current DPP. He also avoids being drawn into discussions about the state of the CPS because, he says, Saunders should be entitled to comment herself without her predecessor providing a running commentary. 

Nevertheless, it is hard to ignore recent censures of the CPS by HM Crown Prosecution Service Inspectorate over ‘inappropriate’ witness summons and ‘inadequate’ communications to victims. The service has also come under fire for allegedly failing to prepare cases adequately, delays, the collapse of trials, and the associated cost to the court system.

‘When you take a significant amount of money out of an organisation it gets really tough,’ remarks the former DPP. ‘CPS staff have worked hard through a very tough period. There comes a point when the delivery of the service is undermined if too much is taken out. We’ve got to be careful where that line is. It’s a tough environment and it is a tribute to the staff it is doing as well as it is.’

For Starmer, it is high time a full-scale review ?of the criminal justice system was undertaken: ?‘We should ask some searching questions about what goes into our courts, what needs to go in, and what doesn’t. We should make sure that where we have contested serious issues they are properly funded on both sides. I’d be up for a fundamental review of how we deliver criminal justice that asks questions way beyond funding formulas, but which are underpinned by an access to justice principle and proper funding.’

Done reminiscing on what must be seen as a past life, Starmer’s day job is calling and he strides off to his third meeting of the morning. He appears to have taken to political life like a duck to water: he stays on message, hammering home his arguments, although he admits there is a ‘big difference between being in power and not.’ How high he can climb the greasy pole of politics remains to be seen, but would anyone bet against him? 

Images copyright of Mary van der Luit Photography

John van der Luit-Drummond is deputy editor for Solicitors Journaljohn.vanderluit@solicitorsjournal.co.uk | @JvdLD