Rausing claims that ‘Like health and safety, human rights is becoming entangled in a web of urban myths and populist conservative attacks.’ Certainly, there are some myths about particular cases that have crept into the debate. But there are also real issues regarding the rights of serious offenders and no amount of populism-bashing can make them vanish from the records.

Take deportation orders. The ECHR has ruled in separate cases that men convicted of heroin trafficking and sexual assault have retained the right not to be deported back to their country of origin, if they can show a familial connection in the UK. Looking at each case, one might see some merits in the defendants’ arguments. But this isn’t a question about the precise merits of every individual case, but who decides on those merits: our courts on the basis of laws approved by our representatives, or by judges based elsewhere on the basis of legal interpretations that are usually far from clear. These issues exist. They are not populist myths.

Rausing also claims, ‘Human rights is about principles’ before going on to defend the votes for prisoners on the basis of equal treatment. I think this does a disservice to human rights which, at their core, are steely pragmatic in the best of senses. They were established at the end of the Second World War when it was apparent that modern states were no less capable of utter brutality than ancient despots or mediaeval monarchs (but were armed with more powerful technology). On the basis of grim experience, human rights law attempted to constrain states and other powerful actors to prevent them from persecuting individuals and minority groups.

As a result, most of the content of human rights law is absolutely necessary for the maintenance of liberal democratic societies. For example, freedom of speech is essential because allowing widespread censorship provides a weapon to authorities who wish to silence dissent. People who have been mistreated can be cowed into submission by the threat of sanction if they speak out. Free deliberation in a democracy is impossible without allowing controversial views to be heard without fear of penalty.

Take another example regarding prisoners: authorities must provide physical security and basic humane conditions for those in custody. To offer any less would open convicts to harm beyond what was appropriate for their crimes, bringing the judicial system into disrepute. It could discourage juries from finding offenders guilty for fear that the punishment would be a greater crime than the initial offence. These human rights in a justice system are essential to prevent a total breakdown of law into the arbitrary imposition of harm and degradation, and it is precisely these sort of rights that campaigners and judges are right to focus on.

By contrast, the right of prisoners to vote is essentially symbolic. Voting is not a practical way of changing one’s personal circumstances in the same way as, for example, having a right to legal counsel. The prison population is sufficiently small that it could never actually alter the outcome of a general election even if it voted as a bloc (which it never would). Moreover, restricting the franchise in this way is non-arbitrary and predictable: any citizen can avoid being unable to vote simply by not committing a serious enough crime that warrants incarceration.

Compare this with the general right to suffrage. Discussing the history of the Levellers, Tim Black explains in Spiked: ‘those who fought for political emancipation, the struggle for enfranchisement was tied up with the urge to exercise greater control over their lives. That is, the vote meant something: it promised self-rule; it promised sovereignty’. For the people as whole, a broad franchise, without arbitrary restrictions, is essential. By contrast: ‘those making the case for prisoners voting, whether slumbering at the ECHR or campaigning at the Prisoners Reform Trust, seem to have little interest in the actual stuff of freedom. As they see it, the vote’s primary purpose is to make prisoners feel better about themselves.’

In other words, human rights are being treated as a sort of individual and social therapy, rather than a practical means to rein in the powers of government and offer essential protections to individuals. People want to give the vote to prisoners not because it will change collective decision-making but because it is a ‘nice’ thing for prisoners to have.

A slightly different point applies to the deportation of convicted offenders. So long as it is widely understood that residence in the UK is conditional for foreign nationals on not engaging in crime, then this, arguably, isn’t really a question of human rights either. Tragic as individual cases of families being broken up by deportation proceedings might be, the simple way to avoid it is for foreign nationals not to engage in crime that threatens the community around them. Once the crime has been committed, the situation is already a tragedy of sorts. Policy-makers face the trade-off of the interests of the convicted and the interests of the community. To prefer, as a matter of policy, the interests of the community in these circumstances over those of the offender (or their family) is not to abridge human rights. A society that deports dangerous foreign convicts is not diminishing the ability of its law-abiding citizens, or residents, to live free and fulfilling lives.

When human rights are invoked to defend abstract principles that are not actually very widely accepted by the general public but are wedded to highly particular ethical positions, their power over the really important matters is reduced. Properly understood, human rights stand at the very foundation of democracy. Misunderstood, human rights start to compete with, rather than support, democracy.

The Directive in question is the robustly named ‘EU Directive on Access to a Lawyer in Criminal Proceedings and on the Right to Communicate upon Arrest’. Under its proposed terms, any person suspected of criminal activity in a member state would automatically have the right to legal representation during interrogation by the authorities. In addition, they would be entitled to have a legal professional assess the conditions in which they are being held.

Justice Minister Jonathan Djanogly justified the decision by arguing that the directive “would have an adverse effect on our ability to investigate and prosecute offences effectively”, and emphasised the “considerable concerns about the details of the directive and the impact its drafting would have on the UK’s criminal justice systems”.

However, given the nature of these reservations, the decision to opt out seems somewhat illogical. Although the minister emphasised that the UK has not ruled out opting in at a later stage, by withdrawing from the process now, the UK has excluded itself from all negotiations that will eventually determine the detail of the final text. Moreover, this approach undermines the Government’s professed strategy of using the negotiating power concomitant with membership to reform the EU from within. As Jodie Blackstock of Justice has stated: “The possible reasons to opt out simply do not stand up to scrutiny.”

By opting out of the Directive, the Government could deny UK citizens arrested abroad the protection of fundamental rights that they have come to expect in Britain. Head of policy at Fair Trials International, Catherine Heard, denounced the decision as increasing the risk of “further cases of injustice”, highlighting that “a third of our clients facing charges in other EU countries complain about poor access to legal advice”. The now well-known case of Andrew Symeou is a paradigm account of the excesses of the European Arrest Warrant, which compels the UK to fast-track British citizens for extradition, with minimal safeguards or legal recourse and no questions asked.

While the UK is paralysed in its efforts to bring its own citizens back home, it is also paradoxically shackled in its attempts to deport known offenders. The announcement of the opt out comes as new figures reveal that the number of EU citizens convicted of criminal offences in the UK has trebled over the last four years, soaring from 10,736 in 2007 to 27,563 in 2010. Based on results for the first seven months of 2011, more than 33,000 convictions are expected this year – some 100 convictions every day.

An EU citizen will not face deportation after conviction unless they receive a custodial sentence of more than two years. In addition, a probation service memo from 2007 highlighted that a new EU Directive could restrict this even further, permitting deportation only where offenders pose a “present, genuine and sufficiently serious threat” to society. Last year, just 1,480 EU citizens were deported from the UK, and it is unclear how many of these were removed as a result of a criminal conviction.

Moreover, the Government now risks eroding legal rights in the UK, as the Legal Aid, Sentencing and Punishment of Offenders Bill could remove the longstanding guarantee of face-to-face legal advice in a police station on arrest. The new regime could introduce automatic means testing, denying some people the right to have a lawyer present during police interviews, although the Bill does extend the provision of remote advice.

If the Government is to realise its commitment to fortifying basic fair trial safeguards at home and abroad, it should aim to improve general practice in Europe by exporting the traditionally exemplary standards of justice in the UK; it should not surrender its ability to influence the direction of important criminal justice policy at the EU level. Establishing minimum guarantees of legal representation throughout the EU-27 benefits not only EU citizens in this country, but UK citizens abroad. Opting out of the Access to a Lawyer Directive not only removes the UK from the negotiating table, but signals the country’s disapproval of the scheme. Given our knowledge of the catastrophes that ensue when legal safeguards are lacking, this is a position we would be unwise to take.

Take this recent example. In R v Smith & Others, three judges in the Court of Appeal considered whether the terms of Sexual Offences Prevention Orders (SOPO) for four separate men were necessary and proportionate. Each of the appellants had been sentenced for offences involving child pornography, though none had been charged with any offences of physical sexual contact. The court emphasised the need for such orders to be tightly drafted and, after detailed explanation, removed conditions that were “unnecessary and unrealistic on the facts of this case”.

The media response? “Judges weaken rules on paedophiles”, raged the Telegraph. “Rules on paedophiles seeing their children relaxed after judges decide their human rights are more important”, shrieked the Daily Mail.

According to the papers, the appellants had successfully relied on their human rights to “seriously weaken the ability of the courts to place restrictions on offenders”, with the court ruling that their “‘right to a family life’ must be taken into account before the…SOPOs are issued”. By siding with the paedophiles, the court had “torn up” powers to protect children and abolished the ability of judges to “impose blanket bans” on parents convicted of child sex offences from “spending time with their own children” or teens between 16 and 18.

These accounts are not merely brazenly subjective; they are simply untrue. The version presented by the media bears no relation to the actual judgement – it an invented, rather than exaggerated, demonisation of justice.

Turning to the first of the court’s alleged offences, the judgement is almost entirely silent on the issue of human rights, despite their prominence in the media articles. This is not a case about rights, but rather proportionality, necessity, and enforcement. The only time the right to family life does make a fleeting appearance in the case, it does not relate to the appellants’ rights at all; where “there is no sign of a risk that [the defendant] may abuse his own family”, the judges comment, “it is both unnecessary and an infringement of the children’s entitlement to family life” to prohibit all contact between the children and their parent. The court emphasised that where a risk does exist, “then those children may need protection”.

Nor there is any attempt to ‘tear up’ the court’s protective powers. The ruling explains, rather than reforms, the operation of the SOPO scheme. A SOPO can be necessary to prevent a real risk of serious sexual harm materialising, yet is not the only tool available to the court. Offenders may well be subject to notification rules, disqualifications from working with children, and licence conditions post release from custody.

The court also recognised the important complementary role of non-judicial professional bodies. With regards to one of the four appellants, Bryan Hall, the possibility of his new wife’s two young children moving into his home caused the court some concern. Yet the court acknowledged that it is for Social Services to determine whether the children would be safe residing with Hall, and that they are the agency best placed to assess this risk; if Social Services were so satisfied, “then it would be wrong for the terms of the SOPO to override that judgement”. This is about respecting relative competence, not diluting powers.

Judicial decisions need and deserve to be publicised; however, it is essential that they are relayed accurately. Erroneous reporting is not only misleading, but potentially ruinous for the level of public trust the justice system deserves. Nick Clegg was undoubtedly right in saying: “Court judgments themselves tend to tell a very different story about our rights culture than tabloid papers.”

Small Corroding Words, by Jon Gower Davies, is a systematic critique of the philosophy, research and practice of the EHRC. It reveals serious flaws in the EHRC’s ‘triennial review’, How Fair Is Britain?, that was used to demonstrate unfairness in Britain. What the research actually shows are the statistical differences between some groups. This line of thinking entails, for example, taking the fact that men are more likely to die in work-related accidents than women as a sign of unfairness. (pp. 8-9) The EHRC inaccurately blames Britain for differences of this kind.

• Full press release
• Buy Small Corroding Words

The Commission recognises that effective mutual cooperation between EU member states “in tackling crime and making justice systems work” must rest on the cornerstone of mutual trust between these states; each member is expected to accept that criminal justice systems in other EU states, “whilst not the same, are at least equivalent”. Yet, with widespread prison overcrowding and unjustified detention, as Chief Executive of Fair Trials International Jago Russell has stated: “In reality…standards vary so widely across the EU that this trust sometimes looks like little more than naivety or blind faith”.

The consultation comes just as the Joint Committee on Human Rights of the UK parliament publishes a report which concludes that “the current statutory framework [of the UK’s extradition policy] does not provide effective protection for human rights”. The gravity of human rights implications bound up in pre-trial detention and extradition is unequivocal. Art 4 of the EU Charter of Fundamental Rights mirrors exactly the wording and meaning of Art 3 ECHR (prohibition of torture or inhuman or degrading treatment), which covers incidents of unacceptable detention conditions, and Art 19(2) of the Charter declares that a person may not be handed to another state where there exists a serious risk that they will be subject to treatment infringing Art 3 ECHR.

Furthermore, whilst the European Court of Human Rights has held that pre-trial detention must be used only exceptionally, the reality is that “[t]hese extraordinary powers are in fact being used in an almost routine way”. Approximately 4,500 unconvicted people are being held in European prisons at any given time, yet some jurisdictions have no maximum time limit for pre-trial detention. Even among those which have some cap, there is little consistency; while the limit in Cyprus is three months, suspects in Italy can be detained for up to six years pending trial.

Risk of rights violation is compounded for those prisoners held outside their national or resident state; not only do they face the challenge of an unfamiliar language and legal system, but they are often isolated from their family and home. These difficulties can have a devastating impact on the fairness of the trial if and when it does occur. Fair Trials International reports a plethora of cases in which people held abroad plead guilty to offences they did not commit, solely to avoid the risk of spending a longer period in custody awaiting trial than they could have received as a sentence on conviction.

Such examples of rights infringements have now been catalogued and acknowledged; the consultation now seeks to establish a solid footing for mutual trust, by tackling these problematic rights issues head on, pushing for broader use of non-custodial alternatives to pre-trial detention and the possibility of an EU maximum pre-trial detention period. Moreover, to its credit, the Commission has been careful to avoid commandeering the issue. Recognising that responsibility for detention conditions lies with member states, the paper accepts that the EU can most appropriately and helpfully raise detention standards, not through  additional EU-led monitoring, but through “promoting better coordination” of existing networks.

The UK Joint Committee has also made a number of rational recommendations, including a requirement “for the requesting country to show a prima facie case or similarly robust evidential threshold” in extradition cases, and safeguards to ensure that other EU member states do not use the EAW to request a person for investigation rather than to stand trial. Importantly, the Committee has proposed the introduction of a proportionality principle, to ensure that the human rights implications of an EAW extradition are not disproportionate to the alleged crime.

For too long systematic rights violations have been left to fester in states throughout the EU. Yet, driven by pragmatism and consensus, the detention green paper is all about looking forward. The true extent of the paper’s impact will not be felt for some time, as the consultation period remains open until November, however it marks another key commitment to protecting the rights of both suspects and victims, at home and abroad. The ideas for reform are there, and it seems as though – at last – the Commission is ready to listen.