Lecture by Prof Phillippe Sands at Southampton University
Phillippe Sands
It was a pleasure to attend the annual lecture organised by the Romsey and Southampton Amnesty group given by Phillippe Sands (the link is to several of his articles). It was based on his book East West Street concerning in part the city of Lviv which was known at Lemberg in the nineteenth century and was also known as Lwów. Under the Soviets it was called Lvov. Its importance in his story was that two people came from the town who were very influential in the post-war developments of human rights.
Hersch Lauterpacht. Picture: the Guardian
First was Hersch Lauterpacht who was born just north of Lemberg and moved there in 1911, and the second was Rafael Lemkin who was born in Ozerisko and moved to Lemberg in 1900. They both worked behind the scenes during the Nuremberg trials. But their claims to fame are that Lauterpacht was instrumental in getting the world to agree the need for action on crimes against humanity and Lemkin on the concept of genocide. It is surprising that these two concepts are fairly recent and both date from 1945: one assumes they have been around for a lot longer. But that they both emanate from two men from the same town in east Poland is even more remarkable. Despite this and despite the fact they worked in the same field, they never met as far as is known.
Lauterpacht it was who wrote the International Bill of the Rights of Man which invoked Churchill’s commitment to the ‘enthronement of the rights of man.’ His book was key in the development of the UN declaration.
Sands discussed the arguments concerning whether ‘genocide’ should be included and in
the early years it was sometimes in and sometimes dropped. It met resistance because of legal doubts. Lemkin was keen to introduce this as a crime largely because of the German’s crimes in the war an in particular the activities of Hans Frank who oversaw the slaughter in his former town and Poland generally. Frank was hanged after the Nuremberg trials.
He finished his lecture by discussing briefly, the current state of affairs with regard to human rights. He expressed an ‘acute sense of anxiety at what stirs in our midst’ referring part to the far right groups in eastern Europe especially as they suffered so much under the Nazis.
He said he had a ‘sense of going backwards’ with our own politicians wanting to come out of the European convention which he thought was ‘unbelievable’. The platitudes of many of the current politicians seems to reflect a lack of knowledge of post-war events.
East West Street: On the Origins of Genocide and Crimes Against Humanity is published by Weidenfeld & Nicolson (£20).
Dark day for democracy and free speech. Government gets ‘the most extreme powers ever’
The Investigatory Powers Bill became law this week and it is a dark day for democracy, not just in the UK, but the signal it gives to the rest of the world. That one of the oldest democracies in the world should want to garner for itself, a whole set of powers to pry into peoples communications and to find out journalists’ sources is a matter of shame. It will provide increased encouragement to regimes around the world to clamp down further on their citizens.
The wonder of it is that so many people are so relaxed about it. Although over 130,000 people protested, the government took little notice.
Picture: 5pillarsuk.com
The state needs to have a security apparatus. When the nation is under threat either in the time of war or by terror groups, it must have the means to investigate. This is likely to mean eavesdropping in some form or other.
There is also the issue of secrecy and confidentiality. People in government should have the means to discuss ideas and float policy ideas without it being published in the media – to start with at least.
Technology has provided a means now to invade individual’s private space with ease. Technology has surpassed the law in this regard. Nearly all the key technologies are operated out of Silicon Valley in the USA over which we have no control. Is it not interesting that Britain voted to come out of the European Union and one of the key reasons was sovereignty. Yet in this regard, sovereignty is in California.
The Guardian reports:
The new surveillance law requires web and phone companies to store everyone’s web browsing histories for 12 months and give the police, security services and official agencies unprecedented access to the data.
It also provides the security services and police with new powers to hack into computers and phones and to collect communications data in bulk. The law requires judges to sign off police requests to view journalists’ call and web records, but the measure has been described as “a death sentence for investigative journalism” in the UK. (29 November 2016)
The increasing ability to intercept communications has and is having an effect on free speech. It is described as having a ‘chilling effect’. Journalists working on these topics have to go to extraordinary lengths to cover their tracks. Material has to be hidden abroad for protection from the security services. Some other issues are more open to debate.
In case of war and terrorist attacks, the media quickly falls into line and the normal business of tackling government ministers is forgotten. It quickly becomes a matter of supporting ‘our boys’ and even questions of the quality of kit for example do not get asked.
The crucial issue is one of power and control. The very business of being able to pry into anyone’s private affairs gives the state enormous powers. As citizens we should expect that these powers are used when necessary; are subject to control wherever possible (like the controls on searches); are subject to close scrutiny, and are in accord with properly laid down laws. Controls on operational matters should not be in the hands of politicians who cannot on the whole be trusted with secrets of this nature. The level of intrusion should be matched by the degree of scrutiny.
As usual, supporters of snoopery will trot out the old adage that if you have nothing to hide you have nothing to fear. This is, in its most fundamental way, true. But the trouble is that as with all these moves what we are seeing is only the thin end of a very long and dangerous wedge. Most law-abiding people have no reason to worry about other people knowing what websites they have visited. But once you give the authorities the ability to do this history tells us that this ability will, inevitably, end up being abused. (Daily Mail)
In the 3 or so years that the ‘Snooper’s Charter’ has been debated, it is often stated by members of the public that they are not concerned and if the security services want to listen in to their conversations with their auntie they are free to do so – ‘I’ve got nothing to hide’ is the frequent refrain. Yet if police and security services arrived at their front door and searched their house and computer without a warrant or reason to do so, they would be outraged. Is the difference just that one is visible and the other isn’t?
Likewise, if you asked these same members of the public ‘do you trust our politicians?’ they would think you were a little mad. Yet they are happy to allow them or their agents to intrude into their affairs. The current Home Secretary is Amber Rudd and readers of Private Eye and the Daily Mirror will have read several revelations about her less than honest business affairs involving dodgy companies and diamond mines. Questions have also been asked about her tax affairs. To her, the nation entrusts its secrets.
To come of course is the promised withdrawal from the European Court and the threatened repeal of the Human Rights Act.
We have not lived in a state such as existed in East Germany, Romania or the Soviet Union where the degree of control was extreme. Thus people in the UK are not aware of the harmful effects of giving too much power to those in power.
Finally, is it even sensible in its own terms? Someone once said that hunting for terrorists was like ‘hunting for a needle in a haystack’. Is it wise then to increase the size of the haystack?
The Human Rights Act is under threat by the Conservative government and they want to withdraw from the European Convention which we helped found. It is timely therefore that we celebrate the achievements of the ECHR which receive too little attention by our media and by politicians such as the prime minister and our local MP Mr John Glen.
As we wait to see what the government brings forward to replace the Human Rights Act it seeks to repeal, a book was recently published which is recommended to all those who believe in human rights and – despite its faults – that the HRA is a major step forward in granting rights to its citizens. The book is called On Fantasy Island* by Conor Gearty who, amongst other things, is professor of Human Rights Law and Director of the Institute of Public Affairs at LSE. He has written several other books including the Struggle for Civil Liberties (2000)
The HRA has come under sustained attack in the media particularly but not exclusively at the tabloid end of the market with regular stories of criminals and terrorists escaping justice because of it. Positive aspects of the Act including use by the media themselves to protect sources, seldom get a hearing. A recent example from the Daily Mail gives a flavour of the type of reporting which is common at that end of the media market:
Folly of human rights luvvies: As actors fight plans to axe Human Rights Act, how thousands of foreign convicts use it to stay in Britain
Number of foreign offenders on UK’s streets has spiralled to a record high
Includes killers, rapists and paedophiles who have avoided deportation
Left-wing luvvies lining up to oppose plans to scrap the Human Rights Act
Benedict Cumberbatch and Vanessa Redgrave condemn Tory proposals
25 June [accessed 31 October 2016]
Conor Gearty methodically discussed the history of rights in the UK and tackles head on some of the absurdities regularly reported in papers like the Mail and the Sun. Myths abound and include the case of Abu Qatada; the murderer of Philip Lawrence outside the school and Denis Nilsen’s request to access pornography and write a book. In each case, the HRA is in the frame when it was either irrelevant or the event complained of was not going to happen anyway. Perhaps the most famous instance was the absurd statement by Theresa May at the Conservative Party conference in 2011 about a Bolivian student who could not be deported because of a cat. ‘I’m not making this up’ she said: problem was she did make it up and had grossly exaggerated a small part of the case.
The government – now led by Theresa May – is apparently preparing a British Bill of Rights. Gearty discusses this and says:
…attentions shifted to the Human Rights Act. Here we find uppermost the fantasies that drove the much of the first part of this book – you cannot change a law for the better if it has never been what it you have claimed it to be in the first place. (p189f)
He sets the context of hostility to the Act in terms of a deadly combination of the nostalgic and the negative. For a country which until the recent past, ruled a large part of the world and whose power and influence was supreme, we now have to form partnerships and accept that our writ no longer runs as it once did. Strasbourg is just one of the elements of this. Nostalgic because were we not the inventors of common law so who are these overseas people interfering in our law making? The role of the media is discussed and a fuller account of the media’s role in ‘monstering‘ the HRA is provided by Adam Wagner of RightsInfo.
Human rights offer a route to a society where all are equal before the law and where each of us has a chance to engage in political activity on a level playing field if we so wish.
Several years have gone by since the Conservatives announced their desire to abolish the act and we are still waiting to see what happens. The new Home Secretary, Amber Rudd, has reaffirmed that and of course Theresa May is now prime minister. We wait and see … Our Local MP, John Glen, is on record in the Salisbury Journal as someone who agrees with abolition so we wait and see when the time comes.
Liz Truss announces that the British Bill of Rights is back on the agenda
The new Lord Chancellor, Liz Truss, said in an interview that the abolition of the Human rights Act and its replacement with the British Bill of Rights is back on the agenda. On the 10 August, The Times had suggested that it was not going forward. As we speculated on this blog a while ago, the sheer amount of work needed to negotiate new trade agreements with the world and our exit from the EU, is going to consume parliamentary effort and ministerial time on an enormous scale. Will they have time and energy to spend time haggling with the Lords over a new bill with all the rest that is going on? Then there are the complex relations with Scotland and Northern Ireland to consider. This pledge has been around for 10 years now yet Liz Truss gives no timetable.
We are committed to [abolishing the Human Rights Act]. It is a manifesto pledge. We are looking very closely at the details but we have a manifesto pledge to deliver that Liz Truss
Liz Truss – picture gov.uk
The result will at best be a modest change in the law unless we are going to withdraw from the European Court itself. This will have widespread effects especially in eastern Europe where the Court’s activities has had a positive effect on human rights.
The shame of it is that the public anger about the ‘terrorist’s charter’ and other nonsenses are fostered by the media and few of our MPs and Ministers seem to have the courage to stand up to them. The Daily Mail, the Sun and the Daily Express are often loud in their criticisms but connection to actual facts is often weak. But even periodicals like the Spectator – a venerable political weekly – is not above publishing tendentious material. The hostility to the act is in part we argue, due to the privacy clauses which give some protection to those who have suffered press intrusion for no good reason other than boosting newspaper sales.
Abu Qatada is frequently produced as evidence that the act doesn’t work and meant, allegedly, that we were not able to deport him. Firstly, if he was such a terrible man, why was he not arrested and prosecuted here? Secondly, the failure of the Home Office and the then Home Secretary Theresa May to deport him was not the HRA but treaties we have which prevent us returning people to countries where torture is routine (as well as the HRA). Qatada would not have had a fair trial in Jordan because, at the time torture, was common there.
We often read that duties and responsibilities are to be added as there are many – not just on the Conservative back benches – who are unhappy with ‘rights’ and feel that such rights should only be available to those who act responsibility. How this would work is not explained. Who’s to judge what ‘responsible’ means? A police officer at the time of arrest feels that the person behaved irresponsibly and therefore decides not to allow the person access to a lawyer – a provision in the HRA? Some rights are absolute and do not depend on good behaviour. Other rights are qualified anyway.
It is hard not to see a parallel with the Brexit debate. Years were spend denigrating the EU and then when it mattered, those like the previous prime minister, David Cameron, wanted to persuade country to Remain, he lacked conviction. He was hoist by his own petard, or more colloquially, ‘stuffed’.
A concerted campaign has been waged by the media against the act and stories produced which only occasionally have any relation to the truth. We have suggested before to refer to Rights Info to get the background and a sober assessment of some of the fictions.
Whether the BBoR ever sees the light of day remains to be seen. It is likely that this is a rash statement by the new Lord Chancellor which may quietly drift into the background when the difficulties and disadvantages are explained. But it will continue to lurk until a sufficient number of MPs – like those in the Runnymede group – stand up and speak positively about the act and the benefits it has brought to thousands of ordinary citizens who have used it to secure basic rights, stories that rarely find their way into print.
Salisbury MP, John Glen is among those who have publicly called for the act to be abolished.
The country (UK) has decided to leave the EU: so what next?
In the early hours of yesterday morning, the referendum was concluded and the country decided to leave the EU on a high turnout. The Prime Minister is to resign and there may be an election by Christmas.
One of the key issues that decided the referendum was the question of immigration and the other was sovereignty. While those politicians who were in favour of remaining in the EU, went on about the economy, security, jobs and so forth, it was obvious from interviews in the street (vox pops) that very many people were concerned about more basic matters. As far as many of them were concerned, they were suffering from the effects of austerity and the people who were making matters worse were the immigrants. They were ‘flooding’ into the country and were putting a strain on public services and bidding down wages (it was claimed) thus making their own lives a misery. Membership of the EU made matters worse as we were unable to stem the tide because of their rules. Coming out was clearly a solution to their woes.
Sovereignty also reared its head from time to time and a familiar line was taking back our sovereignty so that we can make our own laws and run our own affairs, free from interference by Brussels bureaucrats and unelected judges in Strasbourg. The election of our own judges is something that must have passed us all by.
So what of the Human Rights Act? The Conservative’s manifesto made clear their desire to scrap it and replace it with a British Bill of Rights. Months have gone by since the election and no sign has been seen of this document.
But if anything is clear from yesterday’s events, it is that hatred of the EU and its alleged interference in our affairs – including our legal affairs – is very strong and was one of the deciding factors which enabled the Brexiters to win the referendum. This has been whipped up by a right-wing press and not a little xenophobia.
The problem now for the new government – expected at the time of writing to be formed by Boris Johnson – is that they just cannot leave the BBoR to one side in view of the fervour generated and promises they have made to the electorate. But, the EU will be wanting a speedy departure by the UK from the EU, and not on painless terms either, to prevent contagion spreading to other disaffected countries. So considerable time will need to be spent by thousands of civil servants negotiating new terms, agreements and treaties to enable our new relationship with the EU to continue. Enormous parliamentary time will be needed as well. The question is therefore – will there be the time or energy for this battle? Getting a diminished set of rules through the Lords will not be easy.
It is a great pity that so many politicians have allowed the untruths and exaggerations by the right-wing media to gain such traction and to go unanswered. Many believe that all red tape and rulings from Brussels are automatically bad news and diminish our lives. We would be so much better off without them they say. The word ‘free’ is used a lot: free of such rules, free to trade where we will, free to rule our lives and free of encumbrances generally. The HRA has been a lifeline for many, many people in the UK. They have used it to secure redress against arbitrary decisions which affect their lives. Public authorities have to be cognisant of the act in their policy making. Is all this to go?
We may ask the question ‘free for whom?’ Axing the HRA will not provide ordinary people with more freedom, but less.
So whether we will see the end of the HRA remains to be seen.
The following letter was sent to the Journal in Salisbury but regrettably for space or other reasons it was not published (14th April). We do not know at present what the current situation is with the promised bill to abolish the Human rights Act and replace it with a British Bill of Rights (or whatever it is to be called). It is a manifesto promise and a draft was to be published in the Autumn but has not yet appeared. It is possible that the arrival of Michael Gove into the Justice Dept. had something to do with it.
Now that we are in full swing with the debate about leaving the European Union, it is possible that this has been shelved for the moment. Mr Gove is a leading proponent for the Brexit camp who – if current polls are to be believed – are doing well at the moment. The calculation may therefore be that if they win then the scene is set to dump the HRA as well.
On the other hand, there will be a heavy workload in managing our exit and carrying out the negotiations to secure access to the European market once we leave, so there will be limited civil service and parliamentary time to spend on a new Bill of Rights.
But back to the letter and our local MP John Glen is keen to abolish the HRA and it would be a pity if he is given space in the Journal again to put forward his views and the opportunity is not given to those who disagree with him. The unpublished letter:
Britain has had a proud history of leading the charge on human rights progress from the aftermath of the Second World War when we were key drafters of the European Convention of Human Rights, to the suffragette movement, to gay rights and other equality legislation. We have often been champions of progress.
What a shame, then, that this year the UK was singled out for criticism in Amnesty International’s annual report on the state of the world’s human rights. Amnesty is warning that the government’s plan to tear up the Human Rights Act is a gift to dictators all over the world. Russia recently drafted legislation which allows it to ignore human rights rulings it doesn’t agree with. Far from being able to condemn that action and call on Putin to uphold basic human rights, the UK is actually talking about following suit. Music to the Kremlin’s ears, no doubt.
Here in Salisbury, the local Amnesty group is campaigning to save the Human Rights Act. Britain should be a world leader on human rights. The Human Rights Act protects ordinary people – from the elderly to hospital patients, to domestic violence victims – and we want to see those protections spoken about with pride by our politicians. We should be redoubling our commitment to enduring human rights principles in these troubling times, not undermining them.
Let’s hope next year’s annual report on the UK reads: “much improved”.
On Friday 19 February, the Southampton and Romsey groups of Amnesty hosted a debate on the HRA. The speakers were Dr Clare Lougarre of Southampton University and Dr Alan Whitehead, the MP for Southampton Test. A representative from the Conservatives was invited but did not take up the invitation.
Clare began by placing the HRA in its context as a natural consequence of the Euroean Convention on Human Rights [1950]. In the context of the debate on the current government’s manifesto commitment to annul the HRA, articles 2, 3 and 4 were significant.
art 2 says that court’s decisions must take into account the decisions, declarations or advisory opinion of the European Court
art 3 UK laws are compatible with the European Convention
art 4 says that if our laws are not in accordance with the convention they may issue a declaration of incompatibility.
She said there were two options for the government: they repealed the act but we stayed within the convention or, it withdraws its signature from the convention altogether. In the first case, there would be little difference as we would ultimately be bound by the European Court. In the second instance however there would be no recourse to the EC and the most likely affected by this are the vulnerable in society.
Dr Whitehead said he was puzzled by what the government wanted to do. The animus against the HRA was based on myth, semi-truths and half truths he said. One myth was that it was ‘Labour’s Human Rights Act.’ This was a frequent phrase used by conservative critics. It simply wasn’t true he said, it was a cross party bill supported by many conservatives. He was moved to ask ‘what part of the act don’t you like?’ He reminded the audience that it was a conservative – Winston Churchill – who was one of the prime movers in creating the ECHR in 1950.
One of the charges against it was that the court had ruled on areas which were never intended by the original convention, in other words there was ‘mission creep.’ This was inevitable since the articles were widely drawn and also, attitudes had changed over time with, for example, our approach to abortion.
The case that is frequently brought up is Abu Qatada. This was presented as a failing of the HRA. It was not. The Home Office had made mistakes in its original paperwork and the reason he could not be sent back [to Jordan] was because either he, or the witnesses, would be subject to torture. [He might have added that abolition of torture was subject to another treaty altogether.]
A further point made by Dr Whitehead was that it should not be for a single government to make law on something as important as this. He did not think we would see anything before the end of the parliament and what would emerge would be a ‘mouse’ of a bill.
It was a lively and informed debate and all credit to the two Amnesty groups for organising it. For further information on the HRA go to (among other sites) British Institute for Human Rights and Rights Info. Now that the movement to come out of the EU is getting underway, the HRA will be a whipping boy for those that want us to leave the union. Both these sites help counter the frequent flow of misinformation by some sections of the media and some politicians.
A useful guide to the Act has just been published by the British Institute of Human Rights and can be accessed here either in e-book form or as a video.
Things have gone quiet with the plans to abolish the HRA and the promise of something before Christmas has not come to anything. There is a glimmer of hope in that Michael Gove has taken over as Justice Secretary and seems willing to modify or drop completely some of the worst excesses of his predecessor. However, the negotiations currently coming to some kind of conclusion concerning our role in Europe are likely to see a fresh assault on the act emerging soon. The watch word is ‘sovereignty’. Parliament wants to be sovereign and this is being presented as a good thing and it is implied we will be the better for it. The right wing press will delight at this and there will be many articles about ‘bringing power back to Westminster’ with the implication that this will result in better laws for us all. Salisbury MP John Glen is a keen advocate for abolition.
A parallel story over the past couple of weeks has been the tax situation of Google and other American behemoths who so manage their affairs that they pay little or only derisory levels of tax. Here, our sovereign parliament (since Brussels has little to do with tax collection) has failed. Indeed, successive chancellors have made numerous announcements about ‘cracking down’ but almost nothing seems to happen. Hardly surprising since accountants from the big four firms are actually in the Treasury ‘advising’ the chancellor on tax policy. So the idea that sovereignty is key and is some kind of magic bullet is clearly illusory and does not lead to better outcomes.
A useful guide explaining the HRA and what it does has just been published by the British Institute of Human Rights and is worth a look. There is a short video as well. No doubt we will be returning to this topic when the announcements are made.
Amnesty in Salisbury & South Wiltshire 