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To risk agreeing with the Conservatives...bring on the Bill of Rights

Prisoners. Unlawful to have a blanket ban on their right to vote. Sex Offenders. Unlawful to refuse the right to review. Indefinite detention without charge. Unlawful.

London School of Economics
These are three examples of cases where the European Court of Human Rights (ECtHR) has ruled against, what i would call, 'lazy' administration. Any blanket ban, or unlimited interference in an individuals legally recognised rights will be considered, by the ECtHR, unlawful on the basis of proportionality.

So what about the rule that says a sex offender cannot adopt? I am certain that the public would be outraged by the mere suggestion that someone who has previously been convicted of a sex offence would be allowed to adopt. Stage left Helen Reece of the London School of Economics who says otherwise in her November 2010 article "Sex offenders should not be banned from looking after children".

Helen Reece, LSE
She argues against the automatic ban on sex offenders from adopting, and says they should be assessed on their merits on a case by case basis. This is a natural conclusion from the legal decisions by the European Court of Human Rights, but does not represent the views of the public on the whole.

Actually, Ms Reece's point here is not that sex offenders should be allowed to adopt, it is the fact that they are automatically banned. It's the same issue that faced the automatic ban on prisoners voting, and is one of proportionality. For a decision to be proportionate, it must be no more than is necessary. What is necessary for one, may not be necessary for another and therefore each case must be assessed individually. The resulting limit on their rights should be no more than is necessary to achieve a 'legitimate outcome'.

This is yet another example of potential conflict between European states and the ECtHR. Anyone who studies law can appreciate that the natural conclusion of the European case law is that a sex offender should be assessed individually on their suitability to adopt. Anyone with common sense, and i don't mean the Daily Mail's definition of common sense, will see that this is potentially dangerous. My regular readers will know that i am dead against the the risk averse society, but in this case i do think we should be on the side of caution. There exist arguments about re-offending rates, but they just don't wash with me as I don't think we can ever know if someone will re-offend. Their rights must be limited to protect our children.

Ian Huntley - Red flags missed
When i read about examples of child abuse that has gone on in children's homes, churches, schools and other 'safe havens' it makes me realise how long we can be fooled by sex offenders, and how vital these red flags can be. We cannot, therefore, ignore any red flag and the suggestion that someone can adopt having been convicted of a sex offence is a prospect that scares me.

But i am now presented with a personal conflict. Previously i have not agreed with any suggestion that the European Convention on Human Rights should be replaced by a Bill of Rights. I think it is a strong document, and despite its weaknesses, we need to hold onto it. Yet my argument above leads me to think that the ECHR presents us with a conflict between moral justice and legal justice that cannot be reconciled. We need to be able to opt out of an ECtHR decision.

See below the response from Ms Reece. It's nice to hear from readers, especially when its from the people i am blogging about!

Dear DietJustice Blog

Thank you for sending me this interesting post. I am afraid I don't have time to reply to it, and in a way my response is contained in the full paper that I published in the CFLQ, but I was interested to read it.

Best wishes