The unpopular (and) Article 3 ECHR
Torture, inhumanity, degradation and the UK
In 1971, UK government agents subjected a number of people they suspected of involvement in the activities of the Irish Republican Army to the so-called ‘five techniques’ of interrogation, which included painful stress positions, hooding, noise, deprivation of sleep and deprivation of food and drink. The survivors of these ‘techniques’ came to be known as the Hooded Men. The European Commission of Human Rights found the ‘techniques’ to constitute torture, while the European Court of Human Rights (ECtHR) considered that they amounted to inhuman and degrading treatment.[2]
Either finding meant that the UK was conclusively in violation of Article 3 of the European Convention on Human Rights (ECHR), which provides ‘in absolute terms’ (as the ECtHR has repeatedly put it) that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. Many years later, an inquiry into the death in 2003 of Baha Mousa, a hotel receptionist in Iraq, found that he had been subjected to the same, by now supposedly banned, ‘techniques’ as well as other forms of inhuman treatment.[3] Over the course of the last years, it has been confirmed that the five ‘techniques’ have in fact mutated and migrated, being used across the world against many people, particularly people suspected of terrorism, sometimes with the complicity of UK forces.[4]
In the 1980s, the UK proposed to transfer Jens Soering to the authorities in Virginia in the United States, where Soering faced prosecution for murdering his girlfriend’s parents and, if convicted, the death penalty. In the 1989 case of Soering v UK,[5] the ECtHR found that extraditing Jens Soering to the United States would violate Article 3 of the ECHR, because the experience of being on death row would cause so much anguish and suffering as to be inhuman. His extradition had, on the other hand, received the green light by domestic authorities and courts.
In the 1990s, the UK proposed to deport Mr and Mrs Chahal to India because they felt Mr Chahal posed a threat to national security. In its 1996 judgment in Chahal v UK,[6] the ECtHR confirmed that Article 3 prohibits removing someone to another State where substantial grounds have been shown for believing that the person in question would face a real risk of being subjected to torture or inhuman or degrading treatment or punishment in the receiving country. The ECtHR underlined that the prohibition provided in Article 3 is absolute, and the activities of the individual in question, however undesirable or dangerous, cannot displace the protection of Article 3. In this way, the ECtHR affirmed that Article 3 provides protection beyond the scope of refugee law, which allows for some persons to be excluded from protection on account of their conduct. Mr Chahal was considered to be a Sikh separatist and the ECtHR found that he faced a real risk of ill-treatment at the hands of Indian security forces. It therefore put a stop to his deportation. Today, hundreds of people facing the sharpest edge of the UK’s hostile environment can assert their rights under Article 3 ECHR, on the basis of the Human Rights Act (HRA) 1998, to avoid the prospect of being removed to a place where they are likely to face torture or inhuman or degrading treatment or punishment.
Article 3’s significance for persons in ‘irregular migration’ contexts goes beyond its operation as a bar to removal. In its 2005 judgment in R (Limbuela) v Secretary of State for the Home Department,[7] the House of Lords held that reducing certain asylum-seekers to destitution by denying them access to State support and banning them from taking up paid employment violated Article 3 ECHR. Limbuela is widely considered to be a landmark judgment in establishing that rights found in the ECHR may require a minimum level of social provision. Recently, Article 3 ECHR has also been applied to the UK government’s ‘no recourse to public funds’ (NRPF) policy, a condition applied to persons ‘subject to immigration control’ that deems them ineligible for almost all public benefits, including benefits oriented at ensuring the basic welfare of children dependent on the person subject to this condition. In R (W, a child) v Secretary of State for the Home Department[8] the High Court ruled that the NRPF regime failed to guarantee that the imposition of the NRPF would not result in inhuman or degrading treatment, contrary to Article 3 ECHR and section 6 of the HRA , as it did not sufficiently protect persons at imminent risk of destitution. The case is yet another example of the importance of Article 3 in protecting people whose irregular migration status would otherwise operate as a basis on which to deny them fundamental socioeconomic protections.
In 1993, Mark Keenan, a young man who was serving a four-month prison sentence for assault and who evinced depressive and suicidal tendencies and other mental ill-health, was placed in segregation, a harsh form of imprisonment which involves isolation and is known to have debilitating consequences for persons’ mental health. He committed suicide the next day. In 2001, the ECtHR found that he had been subjected to inhuman and degrading treatment and punishment contrary to Article 3 ECHR.[9] Today, Article 3’s extensive application in the prison context operates to reclaim the humanity of people who are all too often at best disregarded and stigmatised and at worst treated as ‘human waste’ (as Judge Costa has put it[10]). The ECtHR’s case law on criminal punishment makes clear that Article 3 requires that everyone, even the most egregious wrongdoers, be given a chance at rehabilitation and a real hope of release if such rehabilitation is achieved.[11]
Article 3’s absolute character
Article 3 of the ECHR is a pithy provision of just 15 words, providing that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’, but it is one which encapsulates the spirit of the ECHR and human rights more broadly. It proscribes, and demands protection from, treatment which is antithetical to human dignity.[12] Conduct contrary to Article 3 ECHR is conclusively unlawful, irrespective of concerns relating to national security or the unpopularity of such findings or, in many of these cases, the unpopularity of their beneficiaries. Both the ECtHR and UK courts have repeatedly underlined that the right enshrined in Article 3 is absolute. This means that it cannot be displaced by extraneous considerations[13] – it does not allow for lawful interference like the rights to privacy or freedom of expression do, for example, nor can it be derogated from in times of war or other public emergency threatening the life of the nation.
So we can see that Article 3 can bar policies and practices that may appeal to the government of the day, and Article 3 can make forceful demands that, without it, might otherwise merely attract indifference or disregard, or be accorded low priority by public bodies. It thereby offers significant protection to those who may routinely or sporadically fall through the cracks of majoritarian processes and reasoning, as well as through the gaps in UK law, which simply does not replicate Article 3’s protections. I have specifically concentrated here on cases and contexts that concern persons who have been on the margins of society’s regard, those who are unpopular, disenfranchised or otherwise politically and/or materially disempowered, and whose abuse might otherwise have faced few barriers and attracted little meaningful redress or condemnation by powerful political forces within this jurisdiction. In other words, Article 3 has been vital for those whom Conor Gearty describes as ‘people whose tenuous connection with the mainstream has left them vulnerable to being passed over by conventional legal frameworks of support’.[14]
This is nothing new. In ancient times across many polities, torture was inflicted regularly and almost exclusively on non-citizens, notably slaves, ‘barbarians’ and foreigners. In the past as well as today, as Darius Rejali has observed, torture and ill-treatment have served as markers of someone’s lesser citizenship. Torture and ill-treatment operate, Rejali has said, to ‘[remind] lesser citizens who they are and where they belong’.[15]On the flip side of this, Patricia Williams has astutely observed that those who are prepared to justify torture in ‘exceptional’ circumstances ‘overlap substantially with the class of those who have never been the persistent object of suspect profiling, never been harassed, never been stigmatized just for the way they look’.
Threats to the right to be free from torture and related ill-treatment
Article 3 of the ECHR therefore remains vital particularly for persons who find themselves to be the ‘losers’ of the UK’s political constitution. Article 3 has been and remains a barrier against, or at least a means of redressing, the abuses and excesses of counter-terrorist policy and practice. It has served as an obstacle to inhuman deportation and extradition practices, requiring that ‘even’ (suspected) criminals must not be sent to places where they face a real risk of torture or inhuman or degrading treatment or punishment. It has been a valuable rampart against the pull of penal populism, requiring authorities to treat those in prison with respect for their personhood and their physical, psychological and social needs, irrespective of their crime.
Unsurprisingly, it is especially in the contexts where Article 3 ECHR is most crucial a bulwark against tendencies to dehumanise the ‘Other’ that Article 3 is most contested. In 2006, Tony Blair indicated that he would like to change human rights protections in the UK specifically to alleviate the ban on expelling undesirable people from the UK to places where they face a real risk of torture or other ill-treatment. His aim was, purportedly, to ‘ensure the law-abiding majority can live without fear again’. The Conservatives’ more recent attacks on the Human Rights Act have included the argument that the ban on whole life sentences of imprisonment, that is, on treating persons as human waste, is too expansive an interpretation of Article 3 ECHR,
That the protections afforded by Article 3 ECHR are in peril is also illustrated by the Government’s widely contested Overseas Operations Bill. The severe restrictions placed by the Bill on the investigation and prosecution of wrongdoing in overseas military operations are at odds with a staggering body of international legal norms on accountability and redress for torture, and stand thereby to deny fundamental protections to individuals victimised by UK military forces, as well as (or including) – the generally much less maligned – military personnel themselves.
It may be tempting to assume that, if we let it, the common law and its values can help counter such trends and/or ultimately replicate Article 3’s protections and shield against the sort of dehumanisation that Article 3 shields against. This would amount to unwarranted optimism. Proclamations of the UK legal system’s aversion to torture, for example in A and others v Secretary of State for the Home Department,[16] are in many ways worryingly ahistorical accounts that wrongly cast torture, cruelty, and inhumanity as fundamentally un-British, when history – including recent history, as the abuse of the Hooded Men and Baha Mousa attests – tells us otherwise. Such notions are also hollow in substance when we compare the currently ill-defined common law constitutional guarantees of bodily and mental integrity to the elaborate specification of Article 3’s concrete demands over a vast body of case law by UK courts and the ECtHR.[17]
The right not to be subjected to torture or to inhuman or degrading treatment or punishment enshrined in Article 3 ECHR is not a panacea, nor has its interpretation been without flaws. But whatever the current shortcomings in the interpretation and application of Article 3 ECHR by Strasbourg or by domestic norm-appliers, it is strikingly clear that everyone, not least those who are demonised, stigmatised, marginalised, or otherwise ‘othered’ in an ever-hostile environment, is better off with Article 3 than without it.
[1]
[2] Ireland v UK (1979–80) 2 EHRR 25.
[3] The Report of the Baha Mousa Inquiry (Vol. I), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/279190/1452_i.pdf.
[4] Intelligence and Security Committee of Parliament, Detainee Mistreatment and Rendition: 2001–2010, https://isc.independent.gov.uk/wp-content/uploads/2021/01/20180628-HC1113-Report-Detainee-Mistreatment-and-Rendition-2001-10.pdf.
[5] Soering v UK (1989) 11 EHRR 439.
[6] Chahal v UK (1997) 23 EHRR 413.
[7] [2005] UKHL 66.
[8] [2020] EWHC 1299 (Admin).
[9] Keenan v UK (2001) 33 EHRR 38.
[10] Léger v France App no 19324/02 (ECtHR, 11 April 2006), Partly Dissenting Opinion of Judge Costa, para 13 – cited in Murray v Netherlands (2017) 64 EHRR 3, Partly Concurring Opinion of Judge Pinto de Albuquerque, para 21.
[11] See Natasa Mavronicola, ‘Crime, Punishment and Article 3 ECHR: Puzzles and Prospects of Applying an Absolute Right in a Penal Context’ (2015) 15 Human Rights Law Review 721.
[12] See Elaine Webster, Dignity, Degrading Treatment and Torture in Human Rights Law: The Ends of Article 3 of the European Convention on Human Rights (Routledge 2017).
[13] See Natasa Mavronicola, ‘What is an “absolute right”? Deciphering Absoluteness in the Context of Article 3 of the European Convention on Human Rights’ (2012) 12(4) Human Rights Law Review 723
[14] Conor Gearty, On Fantasy Island: Britain, Europe, and Human Rights (OUP 2016) 131.
[15] Darius Rejali, Torture and Democracy (Princeton, New Jersey, Princeton University Press, 2007) 58.
[16] [2005] UKHL 71.
[17] ‘The Mythology and the Reality of Common Law Constitutional Rights to Bodily Integrity’ in Mark Elliott and Kirsty Hughes (eds), Common Law Constitutional Rights (Hart Publishing 2020).
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