Tag: ECHR

Hugh Grant settles


Hugh Grant settles his privacy action against NGN

April 2024

The actor Hugh Grant has finally agreed to settle his case against NGN, the Murdoch owned group and publishers of the Sun newspaper. The accusations involved phone hacking, unlawful information gathering, landline phone tapping, bugging his phone, burgling his home and office and blagging medical records. This activity, carried on on an industrial scale not just against Hugh Grant but a host of other celebrities, sports stars and politicians, is described in detail in Nick Davies’ book Hack Attack (Chatto & Windus, 2014) following years of investigation by him. The book describes in detail the failure of the media, parliament and the police to tackle the flagrant abuse of power by a media baron in the pursuit of newspaper sales.

The need to settle is another example of the failure of the British Judicial system to achieve justice and a hearing of the allegations in open court. The potential risk to Grant, even if he won his case, would be around £10m because if the damages were less than what NGN have paid into court, he would be liable to both side’s costs. He has won substantial damages which go along the £51m already paid in 2023 in settlements to keep the activity from being aired in court. The group is thought to have paid around £1bn to keep this out of the courts.

The interest from a human rights perspective, apart from the lack of justice and the abuse of power, is the light it shines on the right wing press and their campaigns to end the Human Rights Act and to come out of the ECHR. This is discussed in detail in Francesca Klug’s book A Magna Carta for all Humanity (Routledge, 2015, chapter 5). She points out that prior to the HRA coming into force, ‘our only remedy against press intrusion were torts such as breach of confidence, libel or malicious falsehood, none of which protected us from long-lens cameras or door-stepping journalists’ (p265). The ‘somewhat inflated’ boasts about the wonders of common law, privacy was not a principle it recognised.

Nick Davies was a journalist on the Guardian and it was that newspaper which the Metropolitan Police – senior officers of which has accepted large sums from the Sun for articles that were never published and whose officers revealed and sold confidential information to the hackers – attempted to prosecute the newspaper to get them to reveal their sources. Despite the scale of the wrongdoing, unbelievably, this was the only attempted prosecution. It was the HRA which played a part in stymying that attempt because again, the common law does not protect journalists and their sources.

As we pointed out in a previous post concerning anniversary of the Hillsborough tragedy, and the current arguments concerning Rwanda and the proposed deportation of the boat people, there are still politicians who wax lyrical about the Common law despite its many defects and the sometimes egregious failings of our judicial system to protect the innocent, the powerless and the victims. They argue, with plentiful support from sections of the media, that we do not need a foreign court to protect our rights and secure justice. Yet this case is yet another example where, despite the payment of a massive sum to Hugh Grant, the justice system failed and continues to fail and that it was and is the HRA and ECHR which are crucial weapons victims can use to achieve at least a smidgeon of justice.

The Salisbury group was established 50 years ago this year
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Supreme Court decision – Rwanda


Supreme Court declares government’s Rwanda plan ‘unlawful’

November 2023

This morning, 15 November, the Supreme Court in the UK gave its unanimous decision on the government’s plan to send asylum seekers to Rwanda, declaring it unlawful. This puts a flagship policy in jeopardy and it is not clear what will happen next. Huge political capital has been vested in this decision and it had massive, if totemic, significance for the government. One of its motivations was that it would act as a deterrent to the huge numbers crossing the Channel in small boats, something it was never likely to do.

The first flight was planned in June this year and it was due to take off from Boscombe Down airfield (pictured) in Wiltshire just a mile or so from where this post is being written. At the last moment, the European Court ruled it unlawful and the aircraft took off empty the following day.

The court’s decision was based on the human rights situation in Rwanda. The key principle is refoulement: that someone should not be sent back to their country of origin if there is a risk of mistreatment. The situation in Rwanda is poor with extrajudicial killings, use of torture and enforced disappearances a regular feature. The court also took into account that individuals from Yemen, Syria and Afghanistan have all been returned to their home country where they will be at severe risk of mistreatment or death. Other individuals have been clandestinely moved out of the country.

This decision and the whole vexed story of immigration, refugees, the boat crossings, use of hotels and related issues is extremely high profile in the UK. Considerable anger is expressed by many on the subject and it is a regular source of hostile front pages of the tabloid press and outlets such as GB News. It is said to be as a result of the public’s anger on the subject but this is not altogether true. Many it is true, are angry and want the government to deport the boat people forthwith. Other views are more nuanced. It is not always clear whether the ceaseless headlines on the subject and the somewhat one-sided treatment is itself stimulating the public to its hostile attitudes.

This decision, and the previous one to halt the flight in June, will add to those in the Conservative party who have been seeking our departure from the European Convention. This was a threat expressed by the previous Home Secretary who lost her post on Monday. However, the court made clear that it wasn’t just the European Convention that was the key law in this regard. They pointed out there were other aspects of law, as well as international treaties which the UK has signed, all of which had a bearing on the question of refoulement. This has not prevented – in the words of Open Democracy – the ‘marginally less deranged’ members of parliament who are calling for us to abandon all international covenants. One such is Danny Kruger the member for Devizes in Wiltshire, another is the deputy chair of the party Lee Anderson.

It is important to recognise that the court ruled that the policy of deporting asylum seekers is not unlawful. What was at issue was the human rights in Rwanda itself. So the policy lives on and the Prime Minister Rishi Sunak said in the Commons today that he was willing to “revisit domestic legal frameworks” in their desire to pursue this policy. This might mean the Human Rights Act (one of the acts the high court referred to) comes under attack again, a long time goal of the Conservative Party.

Such is the level of political capital involved in this issue and its place in the Prime Minister’s five priorities that they cannot allow it to go away quietly. We will have to see what emerges in the coming days and weeks. If the decision to remove ourselves from the aegis of the European Court, that will be a retrograde step. We will have to leave the Council of Europe, it will weaken our voice internationally and will hinder our efforts at improving the rule of law around the world.

Photo: Boscombe Down. Salisbury Amnesty

UPDATE: Prime Minister announces they will conclude a new treaty with Rwanda which will override the Supreme Court decision (which he does not agree with) and will enable refugees to be sent there.

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Exiting the European Court possible


Some Conservative politicians again calling for the UK to exit the European Court

August 2023

The issue of the small boat crossings continues to generate considerable passions amongst many in the Conservative party in particular and in sections of the media. This week, the first of the asylum seekers arrived on the barge, Bibby Stockholm, moored at Portland with many local protests, concerns about fire safety and legal protests in train. The response to the protests and appeals from the deputy chair of the Conservative party, Lee Anderson, broke new ground when he said that if they weren’t happy with the accommodation they should ‘f–k off back to France.’ When interviewed on GB News he declined to withdraw the remark and he has received support from others in the party.

Part of the frustration that some feel is possibly based on the misunderstanding about the Court and its relationship with Europe. Brexit was largely based on a desire to regain our sovereignty and the fact that the Court has nothing to do with the EU has come as a surprise and disappointment to those who believed it did. When the Court stepped in to stop the first flight to Rwanda a year ago from Boscombe Down airfield (a mile or so away from where this is being written) it generated considerable fury and with it the threat to leave the aegis of the Court.

If we did leave the Court, we would join Belarus and Russia, hardly exemplars of sound government or decent human rights. It would, as one of the key proponents of the Court in the ’50s, be a great blow to our international standing. There are many in the Conservative party who recognise this.

In many respects, the problem of Channel crossings is as a result of successful policies elsewhere to prevent other forms of crossing. Channel ports are now surrounded with razor wire and boarding and aeroplane is now a major exercise in logistics and checking of details. Legal routes barely exist and the ability of someone to claim asylum in their own country is all but impossible. Getting on a boat is almost the only way.

The ECHR is a threat to British democracy

Daily Telegraph, 10 August

In previous posts we have commented on many aspects of the government’s policy and how exporting people to Rwanda – tried and abandoned by Israel – will be of limited utility. Hundreds will be deported, if it comes into being, while the backlog is in the tens of thousands. Ascension Island is also being rumoured: another expensive and impractical solution.

On 18 July, the government passed the Illegal Migration Bill which means those who arrive by crossing the Channel will not be able to claim asylum. This is likely to be a breach of the Refugee Convention, hence the call to exit the ECHR.

Such is the desire of those to escape war or persecution that threats to send them to Rwanda or place them on a barge off the south coast are unlikely to be a deterrent. The continued failure to stem the flow of crossings represents a major political problem for the government. Oafish comments by the party’s deputy chair are in a way a symptom of the frustration felt in the face of this huge, and in many respects insoluble problem.

It is a pity that the connections between causes and results is not discussed more. The coup in Niger is the latest example of a desire to grab mineral resources. Western countries along with China and Russia, are desperate to secure supplies of these resources and the rights of people who get in the way are nearly always ignored. We are happy for the City of London for example to fund companies and to enable the vast wealth to be routed through the city. We pay little attention to the ‘front end’ so to speak and the activities of corporations in their thirst for rare earths, oil, gold, uranium or other commodities. The resulting conflicts and displacement of peoples, some of whom end up on the northern coast of France, suddenly results in angst and furious editorials in our tabloids. A man reaps what he sows as the Bible tells us. Perhaps if government spent more time concerning itself with the activities of our mining and resource companies then fewer would be forced from their homes and land, dispossessed or otherwise maltreated and fewer would end up at Calais and thence onto a boat. Fewer then would need to f–k of back to France.

UPDATE: 12 August 2023. Migrants taken off the barge because of the risk of Legionnaires disease (11th). Ascension Island no longer an option it is reported.

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Refugee report, March


March 2023

The temperature surrounding immigration and asylum has risen this month with yet more legislation is proposed. We are grateful for group member Andrew for the preparation of this report.

Now we have the detail of the new legislation proposed by the Prime Minister and the Home Secretary designed to deal with the small boats issue “once and for all”, and we can also review some of the latest figures on immigration to emerge.

As expected, the main thrust of the new Illegal (sic) Migration Bill is to state that migrants arriving by small boats will be detained and deported to their home country (though there appear to be no return agreements in place), or, if not safe, to a third country e.g. Rwanda, to be processed.  There will also be a cap on the numbers to be taken in by “safe and legal” routes.  Those removed after processing will not be allowed to re-enter, resettle, or seek British citizenship at any future date.

The issue of the legality of the proposed legislation is based around the UK’s being a signatory to the European Convention on Human Rights (and a member of the court thereof).  The Home Secretary believes that Article 19(1(b)) of the Human Rights Act allows a level of circumvention:

“The Home Secretary, the Rt Hon Suella Braverman KC MP, has made the following statement under section 19(1)(b) of the Human Rights Act 1998: “I am unable to make a statement that, in my view, the provisions of the Illegal Migration Bill are compatible with Convention rights, but the Government nevertheless wishes the House to proceed with the Bill.”  A statement under section 19(1)(b) of the Human Rights Act 1998 does not mean that the provisions in the Bill are incompatible with the Convention rights.  The Government is satisfied that the provisions of the Bill are capable of being applied compatibly with those rights.”

Responses

Comments from organisations with an interest in the area have mostly been hostile.  For example, this is from Amnesty International UK’s refugee and migrant rights director, Steve Valdez-Symonds:

“Attempting to disqualify people’s asylum claims en masse regardless of the strength of their case is a shocking new low for the government.

“There is nothing fair, humane or even practical in this plan, and it’s frankly chilling to see ministers trying to remove human rights protections for group of people whom they’ve chosen to scapegoat for their own failures …

“Ministers need to focus on the real issue – which is the urgent need to fairly and efficiently decide asylum claims while urgently introducing accessible schemes, so people seeking asylum do not have to rely on people smugglers and dangerous journeys.

“Clearly we do not know how this will proceed, either through parliament or the courts, although previous attempts along similar lines have not got very far. It seems likely that the proposed act will not come into force for many months or even years.

“It is worth noting, though, that the government frequently refers to “abuses“ of the human rights law by lawyers representing asylum seekers, which may result in further legislation.  Immigration Minister Robert Jenrick has suggested that some such lawyers are being “monitored.””

It is also worth noting that in 2021, 12,838 Rwandans applied for asylum in other countries.

Arrivals

Arrivals by boat last year included more Albanians and Afghans and fewer Iranians than previously.

On Afghanistan, 22 people were settled in the UK under Pathway 2, and 38 by other means (Pathway 1 appears to be non-functioning).  Of those arriving by boats most have been granted leave to stay (Afghanistan, Syria, Eritrea and Sudan all have acceptance rates over 95%).

Backlog of asylum cases now 160,000

The backlog of asylum cases waiting for decisions has now reached 160,000, despite increased numbers of staff at the Home Office.  The total number of decisions made in 2022 was 19,000.

As a comparison with other European states, up to September 2022, the UK had received 80,000 applications for asylum status; Spain had received 130,000, France 180,000 and Germany 300,000.

Europe as a whole had its highest level of immigration since the crisis year of 2016.  Some states have responded by increasing the numbers of staff processing claims (Germany by 5 times) and by reducing the backlog (France by a third).  In the UK, not only is the backlog increasing but the productivity of staff is going down.

In the case of Shamima Begum, the Upper Tribunal has stated that she was a victim of trafficking, but that it is still legal to remove her British nationality.

It is interesting to note that only 6% of small boat arrivals are referred for trafficking checks.

It was noted this month that up to a third of the Overseas Aid budget has been reallocated to housing refugees.

Finally – somewhat under the radar – the Court of Appeal has upheld the ruling that asylum seekers can be prosecuted for arriving in the UK without valid entry clearance or assisting unlawful immigration.  This follows last years’ Nationality and Immigration Act and will clearly have major repercussions.

AH

Recent post on the subject by EachOther

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Bill of Rights consultation


August 2022

Government invites consultation on its Bill of Rights – but are they listening?

Dubbed by some as the ‘Rights Removal Bill’ the Bill of Rights is currently before Parliament and the government is inviting comments which can be accessed via the EachOther site. The bill has attracted considerable criticism and overall is likely to reduce the rights that people currently enjoy. A number of Conservative politicians have been unhappy with the Human Rights Act which they wish to see replaced with this Bill of Rights. Successive party manifestos have promised its abolition.

In a previous post we drew attention to a book published by the Justice Secretary Dominic Raab which goes someway to explaining the thinking and beliefs which led to this bill. We looked at some of the arguments in the book, Assault on Liberty (Harper Collins, 2009), which have led to the current bill. It claims that there is now an ‘arsenal of rights’ and this is reflected in the introductory remarks which refer to ‘mission creep’. We said that the history was of doubtful merit: the argument being that the country achieved greatness because of its freedoms and liberties and by inference, its decline came about because we have become rule bound of which the HRA is but one culprit. It is part of the small government and limited regulation which some conservative MPs desire. Significantly, the book is peppered with quotes from the Daily Mail which has carried a large number of stories critical of the act. The paper has also directly criticised judges on its front page, calling them ‘enemies of the people’ yet Liz Truss, when she was Justice Secretary, failed to support them until shamed into doing so.

Print media influence

The paper, along with others newspapers from time to time, have produced a series of stories critical of the act. Some are pure inventions and some claim the act is responsible when in fact it has been other legislation which has stoked their ire. Where positive stories appear, for example Hillsborough, the role of the act in achieving justice is downplayed or not mentioned. Readers of the Daily Mail where not told when it itself used the act to protect journalistic sources. The role of the media is important because over the years they have encouraged a negative view of the act to take hold claiming it aids criminals and help all sorts of undesirable people to escape justice by using, in a spurious way, some clause or other thus alleging justice cannot be served because it is their ‘human right’. It has enabled politicians to bring forward this bill safe in the knowledge that sections of the public have been primed over a period of decades to view the act as a thoroughly bad lot and the sooner it is done away with the better. Throw in Europe and the European Court overruling parliament and the scene is set.

If we look at the range of bills and acts, we see a pattern of thinking where laws are introduced to limit protest, restricting access to judicial review, proposals to limit the right to strike still further, and increased police powers amounting collectively to a real step backwards for the liberties of the individual. Taken with the Bill of Rights if it becomes law in its current form, the trend is worrying.

The Bill

The bill has a number of aims. It seeks to dilute ‘positive obligations‘ on public authorities. In view of the current state of the police – one such authority – where a number of forces have been hit by scandal after scandal and several are in special measures, this seems to be particularly inappropriate. It is claimed that the bill will further hurt women’s rights. The already abysmally low level of prosecutions for rape with an even lower level of convictions, will not be helped if the requirement for positive obligations is diluted.

It introduces a permissive stage, a kind of trial before a trial. Since the justice system is already in a state of crisis with extensive delays before a case can come to court, this will have the effect of delaying matters still further. It will also add to costs.

European Court judgements will no longer be part of domestic law. The Supreme Court will also have superiority over the Strasbourg court which is where we came in really. The problem was always that people failed to get justice in the UK courts and had to go to Strasbourg to get it. In a significant number of cases, Strasbourg overruled the UK courts and this became more and more embarrassing. Hence the introduction of the HRA. The Assault on Liberty referred to above is notable for its romantic view of the past and our justice system. The desire to remove Strasbourg from the scene relies on the fantasy of the British justice system being somehow superior. Yet many of our judges, being a product of a very narrow education and from a small part of society, have often shown themselves to be reactionary and out of touch. There was no glorious past which the Justice Secretary seems to think has been taken away. This is discussed in more detail in Conor Gearty’s book, On Fantasy Island (OUP, 2016).

Finally, the desire for rights and responsibilities to be introduced. This is connected in some way to the idea that rights are conditional on good behaviour and that irresponsible behaviour – however that is defined – makes someone less deserving.

The Chair of Joint Committee on Human Rights JCHR, Joanna Cherry QC MP has said that the bill is an ‘unfortunate regression in rights protection’ and has written to the Justice Secretary in those terms.

The local Amnesty group is opposed to the bill. The local Salisbury MP, Mr John Glen has stated he wishes to see the HRA abolished and will be supporting the new bill.

We urge people to submit their views to government while there is still time. As we write (2 August), Liz Truss, seems favourite to become the new prime minister in which case it is certain to become law.

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Rishi Sunak MP


If Sunak becomes the new prime minister, what can we expect on the human rights front?

July 2022

Rishi Sunak is, at the time of writing (15 July 2022), in the lead in the race to become the new prime minister of the UK. Asking about his attitude and voting record in connection with human rights is therefore of considerable interest. It doesn’t look good.

They Work for You, the site which analyses MP’s voting records shows that Sunak ‘generally votes against laws to promote equality and human rights’. He voted against retaining the European Charter of Fundamental Rights. He is in favour of repealing the Human Rights act which has been Conservative party policy for some years now and a draft Bill of Rights is awaited.

When asked about withdrawing from the European Court of Human Rights he is quoted as saying (vaguely) ‘all options [were] on the table’.

He has voted consistently for policies to increase mass surveillance.

He is in favour – despite being the grandson of an immigrant from Africa – for sending immigrants to Rwanda.

Altogether a grim collection of negative attitudes and there seem to be no speeches or much information about his attitudes or likely policies on this important subject. There was nothing in his manicured promotion video. It very much looks like we shall get the existing policies carried forward unchanged. He seems to be part of the party which is hostile to human rights, wants to see them rolled back and to detach the country from European norms and treaties.

He is supported in the election by the MP for Salisbury Mr John Glen who likewise has a record of voting against equality and human rights issues according to They Work for You.

Sources: Open Access Government; LBC; Metro; They Work for You [we carried out an extensive search for any other relevant material but were unable to find any]

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Curious insight into Conservative view of the Human Rights Act


Devizes MP Danny Kruger has written a chapter in a book by the Common Sense group

May 2021

In recent years some members of the Conservative party seem to have a problem with the Human Rights Act and some would like to see it abolished.  Far right newspapers typify the act as being a means by which terrorists, murderers and others escape justice because the act provides lawyers with a range of loopholes to get their clients off. They call it a ‘criminal’s charter’.  Many of the stories, on closer examination, turn out not to be true or wanton exaggerations. 

The current corpus of human rights law started life after the Second World War and there were a number of Conservative politicians who were active proponents, including Sir Winston Churchill and David Maxwell-Fyfe. 

Since 2015, the tone has changed and in the manifesto of that year, David Cameron promised to scrap the act.  Little happened and by the time of the 2019 manifesto, ‘scrap’ had gone and a review was promised.  What is to be reviewed and how a new act would look and what it would contain has never been clear.  At the time, the Salisbury group raised the matter with our MP Mr John Glen, but we were not much clearer what they wanted it replaced by. The review of the act is currently underway.

A new book has just been produced by a group of backbench Conservatives called Common Sense: Conservative Thinking For a Post-Liberal Age. In it, is a chapter written by the Devizes* MP Danny Kruger entitled Restoring rights: Reclaiming Liberty. 

His chapter contains odd reasoning and some curious logic.  His first claim is that the European Convention on Human Rights, drafted by British Lawyers after World War II [lawyers from other countries were involved so it is incorrect to say ‘British lawyers’] ‘sits uncomfortably with the English tradition of preventing tyranny’.  This will come as something of a surprise to the millions of people who were enslaved and were worked to death in the sugar plantations or those who worked in fearful conditions in nineteenth century factories.  The acquisition of Empire also has many horror stories. Quite where this ‘prevention of tyranny’ was taking place is not made clear.

Human rights are misnamed he claims. ‘The rights we really need, and the only ones we really have, derive from something higher and something lower than mankind.  They derive from the idea of God, and from the fact of nations: from a Christian conception of law …’  It would be difficult to locate in the Bible many of the principles enshrined in the ECHR or HRA if only because these ideas and principles were a long way from a society colonised by the Romans and where practices like slavery were common.  There are many favourable references to slavery in the Bible for example.  The ‘lower than mankind’ element is not explained.

He quotes approvingly of the American author Patrick Deneen who wrote Why Liberalism Failed (2018).  Many do not agree with Kruger’s admiration of Deneen’s book regarding his blame of a huge range of society’s ills on excessive liberalism to be odd not to say ridiculous.

His analysis seems to go seriously awry however with the following passage:

“And so, from an early stage we came to think of rights as the means by which we are set free from external pressure, set free from obligations to others; and from there it is a small step to the hypocritical assumption that rights confer obligations on others to satisfy us” (p49).

It is incorrect to say that requiring the state to act in a lawful and reasonable way towards its subjects is in anyway hypocritical.  What is hypocritical about requiring the State not to torture us? What is hypocritical about having a fair trial?  Nor is it true to argue that rights set us free from external pressure.  This seems to go to the heart of the objections raised by some Conservatives about the HRA, and the attempts to weave in duties.  The argument seems to be you only deserve these rights in limited circumstances and in a conditional way. 

This argument is further developed in this passage:

“This conception of rights must be rooted in the existence of a community – a real community, not the abstraction of ‘humankind’.  A real community entails reciprocal duties, situated in institutions that can enforce them and mediated by the conventions of people who know each other and share a common culture.  This is the nation.  We derive our rights from our citizenship (or more properly, our subjectship)”. p52 (our italics)

The problem all along with the objections to the HRA is trying to tie them down to specifics.  In an earlier Conservative document Protecting Human Rights in the UK, the examples seem to be stuck on deporting foreign criminals as an example of obligations. 

The Human Rights Act, brought in following cross party consensus – and falsely characterised as ‘Labour’s Human Rights Act’ – represented a significant shift in power.  Ever since the Norman conquest, power rested with the elites: the king, the barons and gradually the landowners and aristocracy.  Concessions were drawn from them as a result of unrest, riots or events such as the Peterloo massacre.  Magna Carta sought to restore some of the rights enjoyed during Saxon times.  The ‘Glorious Revolution’ brought further changes.  The Great Reform Act some more.

We were subjects not citizens.  The HRA changed that and gave citizens a range of fundamental rights (some of which are conditional).  It would appear that for a small number of Conservative backbenchers in the Common Sense group this is troubling.  Yet Mr Kruger’s chapter never gives solid reasons for change, only rather nebulous arguments which crumble away on close reading. 

*Devizes is a small town 25 miles north of Salisbury.

kruger chapter extractDownload
Common-SenseDownload
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Government loses surveillance case


European Court rules against UK government in a landmark case

October 2018

In September 2018, the European Court of Human Rights ruled that the UK government’s surveillance activities acted against the human rights of its citizens.  It said the ‘UK mass surveillance programme violated human rights and had no real safeguards in place’.  British intelligence agencies – principally GCHQ – violated the right to a private and family life because there was insufficient oversight over which communications were chosen for examination.

As the Independent newspaper puts it:

Under the guise of counter terrorism the UK had adopted the most authoritarian surveillance regime in Europe corroding democracy itself and the rights of the British public.  13 September

A number of human rights organisations, including Amnesty and Liberty, have been pursuing this case and the result is to be welcomed.  Amnesty were particularly concerned because they themselves were penetrated by GCHQ.  In view of the sensitivity of Amnesty’s work and the contacts with vulnerable people around the world, to find that a government agency was calmly monitoring its work is alarming.  The wholesale nature of the Tempora programme was a shock to many.

What is also alarming is the lack of oversight of the agencies.  Despite, as the New Statesman puts it, an ‘alphabet soup’ of organisations which are meant to be overseeing and monitoring what they are up to, it was the work of journalists and human rights organisations which finally brought the government to account.

For many people this is a matter of little interest.  People often say they are unconcerned if their emails are being monitored and their movements tracked.  ‘If I have done nothing wrong, so what?’ is a common response.  Likewise, the discovery that people were being manipulated using Facebook over the Brexit vote has evoked little real interest.

For those who have lived in an authoritarian state on the other hand, and have experienced first hand what it’s like to be subject to constant and intrusive surveillance, the reaction is likely to be different.

When Britain leaves the EU, the current government was determined to remove us from the aegis of the court and to abolish the Human Rights Act.  This was a manifesto promise.  That position has shifted during the Brexit negotiations and we will continue to be subject to its jurisdiction.  This has infuriated that section of the Conservative party who do not wish to be controlled by ‘foreign courts’ as they put it.

This ruling emphasises how important it is that we stay within the ECHR.  Clearly, parliament, MPs and various oversight agencies failed in their basic duty of oversight.  There is a legitimate desire to detect terrorists and those who wish to do harm to the country or individuals within it.  This is written in Salisbury where the attempted murder of two Russians by agents of the GRU is a case in point.  We rely on the various state agencies to keep watch over individuals with malign intent.  But is has to be targeted and subject to oversight.  We give up a bit of our liberty and freedom because we want to be safe.  It does not mean giving a free hand to collect any information that GCHQ feels it needs in a kind of fishing expedition.  We also rely on parliament to keep and eye on the executive and its agencies to see that they are properly monitored and behaving responsibly.  They fail in that.

This ruling is welcomed and we now need to hear from government what measures they are going to adopt to put matters right.  We also rely on the opposition to ask questions of the government and to keep their feet to the fire.

Sources: the Independent; the New Statesman; the Guardian; Amnesty International 

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Human rights under threat


Talk organised by the Romsey group

Dr Claire Lugarre. Picture, Salisbury Amnesty

On Monday March 19 the Romsey group of Amnesty hosted a most interesting talk by Dr Claire Lugarre who is a lecturer in Human Rights Law at the Southampton Law School, part of Southampton University.

An element of the desire of those who wish for the UK to come out of Europe is a wish to regain our (i.e. the UK’s) sovereignty.  There is also a desire, expressed most strongly by some members of the Conservative Party, to abolish the Human Rights Act and replace it with a British Bill of Rights.  This has been promised in the party’s manifestos and has been talked about for about a decade but details of what the BBoR will look like and how it will differ from the existing HRA is still largely opaque.  It seems to be a solution in search of a problem.

The Conservatives are not alone in wanting us to come out of the European Convention along with Brexit: most of the media have kept up a barrage of criticism and denigration of the Court and all its doings.  As the example on the right of the Daily Mail shows, there is talk of a ‘triumphant week for British values,’ the ‘crazy decision’ making by European Court judges – usually referred as ‘unelected’ judges and the ‘human rights farce’.

The talk

Claire Lugarre explained some of the background issues surrounding the issue of the European Court and what it might mean for the country if we left.

Her first point is that the notion of human rights is not just a western construct and similar ideas are seen throughout history even if they were actually called that at the time.  She also emphasised that the European Convention on Human Rights (ECHR) had a utilitarian purpose not just a moral one.  There was an urgent desire after the carnage of WWII to construct a legal basis of good behaviour between states.

States have to comply with European Court judgements.  The Human Rights Act – often referred to by critics as ‘Labour’s’ Human Rights Act which it isn’t as it received all party support – incorporates the ECHR into British law thus removing the need for litigants to go to Strasbourg to get justice.

One matter is the vexed question of prisoner voting she said.  The European Court rejected the Government’s case which banned all prisoner voting and said that to ‘prescribe general, indefinite and automatic deprivation of a right to vote’ infringed a prisoner’s article 3 rights.  Thus far the government has ignored the ruling.  The issue was one of proportionality.

She spent some time on the often confusing difference between the Council of Europe and the European Union the latter being what we wish to leave (it was announced yesterday that the Article 50 notice to depart will be served on 29th of this month).  The Council of Europe consists of 47 states and within which the European Court sits.  This deals with human rights issues.  The European Union consists – at present – of 28 states and is a political and economic union.  There seem to be many who think that Article 50 means we will no longer be subject to ‘crazy decisions’ of the European Court.  To do that we have to leave the European Convention.  There have been reports that the prime minister Theresa May wishes to do that as well.

All legislation and legal judgements have to be in accordance with the HRA she said.  Indeed, the number of judgements already made by the courts represent a considerable body of precedent based on the HRA and the European Court.  Even if we come out of the European Convention the effects will be present for a considerable period.  It is also forgotten that the European Court is not the only thing which binds us, we are also signatories to a host of other treaties which will still be in existence.

BBoR

One of the arguments frequently heard is that it is not just about rights but also about responsibilities.  It was this principle which led to the desire to have a British Bill of Rights and Responsibilities.  This is a difficult argument to fathom.  Sometimes, people talk about responsibilities in terms of the government’s responsibilities to its citizens to uphold the Act.  Others argue that the citizen has responsibilities not just rights.  There are other arguments about the need to fight terrorism because the act has undermined this ability, it is claimed, and this requires responsibilities in some ill-defined way.   Claire was unclear what the BBoR would contain.

The relationship between rights and responsibilities needs to be understood.  Most rights are qualified in any event and, in practical terms, depend on the responsibility of everyone in society to respect one another’s freedoms (so that one party’s right to free expression, for example, does not impinge too far on another’s right to a private and family life).  These rights cannot be subjected to any all-encompassing limitation, such as that they are legally contingent on performance of set of duties and responsibilities. Their application regardless of such considerations is precisely the point of their existence.

It is often claimed by critics that the European Court was ‘imposed’ on the UK.  It wasn’t and the UK was a key participant in its formation after the war with many British lawyers involved.  It is also argued that the HRA should only be used for the most serious of cases but what this would mean in practice is not clear.  Who would decide on seriousness?

If, as is threatened, we do come out of the European Convention the effects could be traumatic.  At present countries like Russia and Turkey are part of it.  Russia’s human rights record is already poor and Turkey has arrested tens of thousands of judges, lawyers, academics and police.  If the UK pulls out of the Convention, of which it was a founder member, the effects could be even more serious in those countries.

The HRA has had a steady and beneficial effect on many people’s lives in this country.  In countless day to day decisions by authorities of various kinds, its provisions have to be adhered to and lawyers regularly use it to defend their client’s interests.  Perhaps its chief problem is that it shifts some power down to the individual, a fact which those who were in control find uncomfortable.

This was a most interesting evening about a subject which is bound to be in the news for some time to come.

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Observer letter


Letter in the Observer (19 February) from a group of lawyers stressing the importance of ECHR

Theresa May has repeatedly stated her feelings that Britain would be better served by leaving the European convention on human rights than it would leaving the European Union.  As we enter Brexit negotiations, there is now every possibility that both these scenarios could easily come to pass.  The ECHR has been the bedrock of peace in Europe since the Second World War and was instrumental in the remarkable growth of democracy in Eastern Europe after the fall of the Berlin Wall.  It is no coincidence that the one state that is not part of the convention, Belarus, is known as “Europe’s last dictatorship”.  The withdrawal of Britain from the EU and the ECHR in succession could embolden populist leaders in countries such as Hungary and Poland to abandon domestic and international commitments to human rights.

We face the threat of a human rights crisis with the UK trading away protections against torture for grubby trade deals with foreign tyrants.  We are calling for the EU to make Britain’s membership of the ECHR a legally binding requirement for any future free trade deal with the UK.  The rule of law and human rights are non-negotiable when new countries join the EU; they should be non-negotiable when countries leave and desire a free trade deal.

As parliament scrutinises the bill on withdrawing from the EU and further legislation on Brexit, MPs, peers and the EU itself must make sure that Britain’s membership of the ECHR is a requirement of any future trade deal with the EU.

Signed Sashy Nathan, Baroness Kennedy QC, Lord Lester QC, Sir Geoffrey Bindman QC, Alex Bailin QC, Alex Grigg, Ali Naseem Bajwa QC, Alistair Polson, Amos Waldman, Anya Lewis, Ben Cooper

Caoilfhionn Gallagher QC, Celia Graves, David Jones, Dr Leslie Thomas QC, Grainne Mellon, Top of Form

Greg Ó Ceallaigh, Harriet Johnson, Helen Foot, James Wood, Jelia Sane, John Halford

Jules Carey, Keir Monteith, Louise Hooper, Malcolm Hawkes, Mark Stephens CBE, Navita Atreya, Nerida Harford-Bell, Paramjit Ahluwalia, Patrick O’Connor QC, Phil Haywood

Prof. Fergal Davis, Prof. Francesca Klug OBE, Professor Steve Peers, Ravi Naik, Sadat Sayeed, Sally Ireland, Sarah Forster, Sean Horstead, Sir Paul Jenkins KCB QC, Stephen Lue

We should add that our MP Mr John Glen, is in favour of this policy.

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