The Right Not To Be Groomed and Abused

DAVID MCGROGAN

From the world point of view we cannot let the matter rest at a declaration of moral principles and pious aspirations, excellent though the latter may be.

-Sir David Maxwell-Fyfe

Since the passing of the Human Rights Act 1998 (HRA) it has been used as a weapon in an uncoordinated but highly effective series of campaigns of lawfare waged for progressive causes. Those who have participated in these campaigns have of course not generally thought of and described themselves in this way; they tend to say things about pursuing justice, ‘thickening’ democracy, engaging in a project of European or even global constitutionalisation, and so on. But the results have, by and large, been one-sidedly to entrench certain ‘new elite’ priorities and insulate them from the preferences expressed through the ballot box.

Conservatives (by which I mean those of a ‘small “c”’ persuasion) have been caught completely flat-footed by this. An entire panoply of charities, law firms, barristers and even taxpayer-funded quangos has sprung into being to deploy human rights law in the interests of various left-coded causes such as open borders and enhanced welfarism; nothing of the kind (save perhaps the Free Speech Union and a few Christian campaign groups) exists on the other side. The result has been something like a capitulation – but also a widespread sense of defeatism and alarmism, combined with a heavy dose of unattractive whining. ‘If only that naughty Tony Blair hadn’t been elected,’ comes the typical bleat. ‘Then the country might not have gone to the dogs in a handcart down the swanny.’

This is foolishness. All things considered, I would much rather that the HRA had never been enacted (posts here, here, here and here will explain why, for starters), but since it will not be repealed any time soon and may never be, it would be wiser to figure out how to operate within, and modify, its parameters than to simply complain about its existence. Indeed, conservatives who want to actually achieve outcomes they consider to be useful and in the natural interest, rather than simply whinging, would do well to take a leaf out of the book of progressive NGOs and activists and use the existence of human rights law to do what it is rhetorically supposed to – i.e. to protect human dignity – in the ways they value.

It is difficult to think of a greater outrage against human dignity in the country today than the grooming gang scandal – back in the news again in the last few days, after a fresh conviction of a group of seven British-Pakistani men from Oldham and Rochdale for offences against two girls ‘from vulnerable backgrounds and [who] were known to social services’ appeared to trigger an announcement from Sir Keir Starmer that there would at long last be a full national inquiry into the matter.

I will not spend a great deal of time in this post rehashing ins-and-outs of the grooming gangs scandal, however. Other people have written far more cogently about the matter, and in a far more informed way, than I ever could – and I am sure that there is nobody reading this post who has not already heard enough about it to have formed a reasonable idea about the scale and nature of the problem. (Even calling it a ‘problem’ seems somehow to trivialise it.)

What I would like to do instead is focus on one aspect of the issue – namely, the persistent failure on the part of police forces, social services, and local and national politicians to take the matter seriously or take the necessary steps to put an end to the debacle, and the not infrequent collusion (whether intentional or in a de facto way through sheer negligence) of the authorities in the crimes in question. And I will here demonstrate not only that human rights law has an obvious application in these circumstances – I will suggest that it in fact could be used to shape the contours of the eventual national inquiry to very useful effect.

Let me, then, walk you through things – though if you are willing to do a bit of more complicated reading, you could do a lot worse than simply download the European Court of Human Rights (ECtHR)’s own admirably clear Guide on Article 3 to the Convention and join the dots for yourself.

Inhuman or degrading treatment

Beginning at the beginning, when the ECHR was drafted the prohibition of torture was at the forefront of the drafters’ minds. When one reads the travaux préparatoires (the negotiating history) of the Convention, indeed, it comes across absolutely clearly that this was the single right with the most emotional resonance for the people involved. And the reason for this is obvious – prohibiting the kind of cruelty that had been visited by the strong on the weak across Europe during the Second World War had a visceral importance to those men. The totemic nature of the right is indeed made plain by the starkness in which it is stated, without caveats or elaboration; Article 3, which prohibits torture or inhuman or degrading treatment it is by far the shortest substantive article in the whole text of the treaty. It simply reads:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

It is therefore one of the Convention’s ‘absolute’ rights: there are no circumstances in which it can be disapplied and no circumstance in which it can be justifiably curtailed.

The drafters obviously had in mind that they were placing a legal (and moral) prohibition on state-sanctioned cruelty. They were not naive; they were well aware that the Nazi Regime, for example, would not have let the existence of human rights law stop it from doing whatever it wished to. But the drafters wanted to enshrine in law the moral importance of the human individual and thought that this might make a difference at the margins. And this was how Article 3 was initially understood: as a ‘negative’ obligation imposed on states (a ‘negative’ obligation being the lawyerly way of referring to a duty not to do something, as in not torturing people or subjecting them to inhuman or degrading treatment or punishment).

Over time, however – I will not go into the jurisprudential history in detail here – the ECtHR developed the ‘positive’ dimension of the right, meaning the duties it imposed on the state to do things to prevent torture or inhuman or degrading treatment or punishment from occurring within its jurisdiction. The idea here is that since Article 1 of the Convention requires parties to ‘secure to everyone within their jurisdiction the rights and freedoms’ contained in the text, and since this is not caveated in any way, then that Article requires them not just to refrain from violating the Convention rights themselves, but also to make sure that rights of individuals are not violated by other individuals. In this case, Article 1 read in conjunction with Article 3 imposes a positive duty on the state to prevent people – whether they are employees of the state or not – torturing or otherwise treating each other in inhumane or degrading ways.

The nature of the positive obligation under Article 3

This positive obligation, the case law of the ECtHR shows, has two aspects: the substantive and the procedural.

First, the substantive aspect. Nobody could imagine a state having the capacity to ensure that no individual ever mistreats another within its jurisdiction. So the ECtHR has been clear: the substantive positive obligations arising under Article 3 do not require the state to perfectly eliminate inhuman or degrading acts. Rather, the state has to do two things:

a) It has to put in place a ‘legislative and regulatory framework of protection’ against such acts

b) It has to take operational measures to protect specific individuals against risks of being tortured or subjected to inhuman or degrading treatment

The former of these is a duty to make the necessary laws to criminalise anything that would constitute torture or inhuman or degrading treatment or punishment and to prevent it occurring where possible – and this would include layering-on additional formal safeguards and other special measures with regard to children. The second is the duty to prevent ill-treatment ‘of which the authorities had or ought to have had knowledge’, meaning in particular circumstance in which the victim was in social care or otherwise in contact with social services. This duty will be breached where:

[T]he authorities knew or ought to have known at the time of the existence of a real and immediate risk of ill-treatment of an identified individual from the criminal acts of a third party and they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (X and Ors v Bulgaria [2021]).

So that is the substantive element of the positive duty arising under Article 3. The procedural element, by contrast, concerns an obligation to investigate. If an individual raises an arguable claim that he or she has been tortured or subjected to inhuman or degrading treatment, whether by a state agent or another private individual, the state must establish the truth. It must do this as soon as the complaint is lodged. It must do so through an independent investigation. And the investigation has to be ‘adequate’ – it has to be prompt, to be open to public scrutiny, and to capable of leading to the establishment of all relevant facts and the punishment of those responsible.

The case for an Article 3-based national inquiry

Let’s now then think about this in the context of the grooming gangs. And let me do this by posing a series of questions to you that a first year undergraduate law student would find it relatively straightforward to answer:

1. Does rape in itself qualify as inhuman and degrading treatment? If the answer is ‘yes’, then Article 3 is prima facie engaged (leaving aside the many instances of actual, honest-to-goodness torture that have been described in the many accounts of how the gangs in question operate). This means that the UK’s substantive and procedural duties in respect of Article 3 come into play in respect of the grooming gangs cases. And I’ll make this easy – the answer to the initial question is obviously and indisputably ‘yes’, and the ECHR case law on this is long-established.
2. Does it seem to you, having read all of the awful stories about how many of the victims of these crimes were treated by the police, magistrates, social services, and so on, as though the UK has performed its substantive duty to prevent torture or inhuman or degrading treatment in respect of all of the victims of the grooming gangs? Bear in mind that this duty will, as you will recall, have been breached where ‘the authorities knew or ought to have known at the time of the existence of a real and immediate risk of ill-treatment of an identified individual from the criminal acts of a third party and they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk’?
3. Does it seem to you as though the UK has discharged all of its procedural obligations in respect of this matter, in the sense that all of the alleged crimes described by the victims of grooming gangs have been investigated ‘adequately’, promptly, independently, in a fashion open to public scrutiny, and through a means capable of leading to the establishment of all relevant facts and punishment of those responsible?
4. Does it seem to you that there might have been a racist element to any of these crimes? And do you think that they might therefore qualify as hate crimes, which the ECtHR has described as being ‘particularly destructive of fundamental human rights’ (in Abdu v Bulgaria [2014]) and which therefore give rise to a heightened requirement for vigorous investigation on the part of the authorities?

I think you will agree with me that there is strong preliminary case to be made out that the British state has breached its positive obligations, both substantive and procedural, under Article 3 of the ECHR in respect of many of the victims of the grooming gangs. And there is therefore a strong case to be made that the national inquiry which Starmer has announced ought to address the UK’s Article 3 obligations specifically, in order in the first instance to ensure that the UK can be brought into compliance with its international obligations, and, secondly to ensure that the inquiry itself directs its attention to the important question of whether any public authorities – any police forces, for example, or local governments, or social services bodies – acted in breach of their duty under s. 6 of the Human Rights Act 1998 not to ‘act in a way which is incompatible with a Convention right’ (in this case by failing to fulfil the procedural or substantive requirements arising from Article 3).

Given the present Prime Minister’s ‘profound respect for international law’, and the present Attorney-General’s insistence that human rights ‘positively touch’ all aspects of society, it would be strange indeed if these men would not turn out to be supportive of the inquiry adopting such a lens. And such an inquiry would of course have to, by dint of what the ECtHR has held Article 3 to require, address among other things the questions I raised under points 2-4 above, namely:

• Whether there were any cases, and particularly whether there was a pattern of cases anywhere in the country, in which it could be said that ‘the authorities knew or ought to have known at the time of the existence of a real and immediate risk of ill-treatment of an identified individual from the criminal acts of a third party and they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk’?
• Whether all alleged crimes described by the victims of grooming gangs have been investigated ‘adequately’, promptly, independently, in a fashion open to public scrutiny, and through a means capable of leading to the establishment of all relevant facts and punishment of those responsible?
• Whether there was a racist element to any of these crimes, and whether they might therefore have qualified as hate crimes – leading to, in the first instance, longer sentences than those that have been handed down?

I am sure you will agree with me that a national inquiry would, in a sane country with respect for the rule of law and concern for the national interest, address these questions in any event. But foregrounding the UK’s obligations under Article 3 in the way I suggest would give additional legal and moral impetus to the insistence that the inquiry encompass the questions I have listed. And this would, in turn, ensure that any national inquiry that does take place is not a whitewash leading to an amorphous list of ‘lessons learned’, but an opportunity to bring to bear the investigate powers of the state to root out collusion and corruption and, more importantly, to bring information into the public domain which will secure convictions not just against perpetrators but those who may have colluded with them in police forces and local authorities. Perhaps more importantly still, it might also lead to the creation of a mechanism through which to compensate victims.

The deployment of the ECtHR’s jurisprudence with regard to Article 3 to secure robust parameters for a national inquiry is only one relatively small illustration of the ways in which human rights law – since it is there – could with a bit of creativity be utilised more effectively by those with orthogonal interests to those of the ‘new elite’ establishment. To return to a familiar theme, in a knife-fight, the overriding objective is to win. And those who are serious about securing the national interest ought to think more seriously about how it is that existing bodies of law, which will continue to apply for years yet, can be deployed to further that interest – irrespective of whatever high-minded opposition those people might feel towards the existence of those bodies of law in the first place. Human rights law is not going away for the time being. So, since it is here – why not use it to try to do some good?

---

This article (The Right Not To Be Groomed and Abused) was created and published by News From Uncibal and is republished here under “Fair Use”