All posts by conorgeartyadmin

Liberty and Security

Conor Gearty, Liberty and Security (Polity Press, forthcoming)

All aspire to liberty and security in their lives but few people truly enjoy them. This book explains why this is so. In what Gearty calls our ‘neo-democratic’ world, the proclamation of universal liberty and security is mocked by facts on the ground: the vast inequalities in supposedly free societies; the authoritarian regimes with regular elections; and the terrible socio-economic deprivation camouflaged by cynically proclaimed commitments to human rights.

Conor Gearty’s book is an explanation of how this has come about, providing also a criticism of the present age which tolerates it. He then goes on to set out a manifesto for a better future, a place where liberty and security can be rich platforms for everyone’s life.

The book identifies neo-democracies as those places which play at democracy so as to disguise the injustice at their core. Nor is it just the new ‘democracies’ that have turned ‘neo’; the so-called established democracies are hurtling in the same direction, as is the United Nations.

A new vision of universal freedom is urgently required. Drawing on scholarship in law, human rights and political science this book argues for just such a vision; one in which the great achievements of our democratic past are not jettisoned as easily as were the socialist ideals of the original democracy-makers.

Legal Week

An odd feature of the Human Rights Act has been its deep unpopularity among politicians. Even before it was brought it into force (in October 2000, nearly two years after Royal Assent), new Labour had begun to disown it, dissatisfied even then with its likely solicitude towards the kind of marginal communities (prisoners; criminals; suspected terrorists; travellers) that its advisers were probably already telling it to get tough on.  The Conservatives have pretty well hated it from the start, seeing in its scheduled European Convention rights a whiff of a Continent which their backbenchers and activists increasingly loathe.  Even the Lib Dems have been false friends, moaning about the Act’s lack of reach and demanding greater, more fundamental change than its modest provisions could ever hope to have delivered.  Maligned right, left and centre, the Act also almost immediately found itself the target of media attack, its right to privacy threatening the commercial interest that many newspapers have in intrusive gossip.

With such a groundswell of criticism from the powerful, it is perhaps surprising that the Act has lasted as long as it has, much less that even its strongest critics now say that what they want is not ‘no rights at all’ (which you might have expected) but rather ‘a new Bill of Rights’.  But how can the answer to a disliked law be more (rather than less) of what that measure contains?

The Tories are caught here between xenophobia and neo-conservatism: even their slower members notice there is something odd about Mr Hague and Mr Cameron telling the whole world to embrace human rights – except, that is, the one bit of global terrain over which they have any power.  It is hoped that a ‘British’ rights document would meet this point while detoxifying rights of their European influence.  It would also somehow at the same time (the details are hardly clear) call a halt to interference from the Strasbourg court, or at least that is the prime minister’s hope. (Someone seems to have told him about the German Constitutional Court and the lack of trouble Strasbourg makes for it and he hankers after the same for Britain.)

It is not clear, however, in what way this new bill of rights would differ from the Human Rights Act.  We are hardly going to have a right to food and shelter under this government, and surely the plan is not to grant jury trials as of right for everything (parking offences? speeding?).  Maybe the whole idea is just to make it easier to give suspect foreigners away to foreign countries where they can be tortured with impunity?  This would certainly be a novel basis for enactment of a bill of rights but the Strasbourg Court – bill or no bill – would be duty bound to stop it. And claims to the contrary notwithstanding, how can that court be cast aside so long as we belong in the Council of Europe?  Is expulsion or withdrawal from the Council a price worth paying to ensure a few terrorist suspects can be safely tortured in evil places?

The Human Rights Act may not have enjoyed many defenders in the higher reaches of politics but it has secured for itself an attractive niche within our legal culture.  The judges have dealt with it very well and grown familiar with the modest ethical weaponry it has supplied when they have had to confront egregious governmental conduct which might otherwise have escaped scrutiny.  So what has it done? To take just a selection: young people have been protected from serious assault in adult prisons; ordinary members of the public have been given at least a modest legal weapon with which to resist the tabloid destruction of their lives; the police have learnt to be more sensitive to the risks posed by violent persons to former partners; coroners have been guided into asking serious questions about suspicious deaths which were never even considered before; same-sex couples have been given a security of tenure on the death of one of them which had previously been denied them; vulnerable people have been given a chance to speak before being thrown out of their homes; above all the Human Rights Act has protected us from a system of internment of foreigners which, without the Act, might by now have become a normal feature of our law.  The Human Rights Act does not give prisoners the right to pornography, or lavish meals to hostage-takers, or any of the other nonsensical pseudo-entitlements which its enemies have ascribed to it.

Will the Act survive?  Almost certainly yes, at least until the next election and very possibly beyond.  The Commission the coalition has asked to enquire into the issue will report in a few months and will almost certainly divide along party lines (as it has been designed to do).  The Tories have already begun to create a series of manifesto pledges for a post Lib Dem future, and no doubt repeal of the Human Rights Act will appear as one of the Party’s more prominent promises.  The mechanics of its removal will be left to another day, in the hope that somehow or other the complexities of such a change will be resolved by the magic of government.  This won’t happen of course.  The Tories in power will be as they are now, and as the Labour party was before them – critical of this or that decision of the courts, happy to attack the Act to get a few cheap rounds of applause, but not inclined to follow the logic of such grandstanding into hard constitutional work.

Reflections On Last Night’s Law Night At Occupy LSX

The discussion at Occupy LSX last night was about the role of law in seeking to change the way we understand the society in which we find ourselves.

Interestingly there was far less cynicism about law that there would have been twenty years ago. The excellent David Allen Green produced an anthem to law-adherence which was applauded rather than booed down (as it might have been not so long ago). David was right to remind us that lawlessness is something the rich and powerful are more adept at and able to do with greater impunity, so that we need to be very careful before we write off the rule of law – it remains as David said (quoting the great radical historian E P Thompson) ‘an unqualified public good’.

Why did the rule of law get such an easy ride?

I’d say this is because of the transformation we have seen in the English judiciary in the past two decades, moving from the blind defenders of the status quo that I recall when I first starting teaching civil liberties (in the Thatcher era) to the more nuanced, thoughtful people you encounter on the Bench at the present time.

An example of this was the Occupy LSX appeal in the Court of Appeal (decision on the case due on Wednesday) – it went very well from the occupiers’ point of view:

  • They were treated with respect
  • Their lawyer (John Cooper QC) was warmly congratulated for having taken on the case
  • The human rights issues were given time to be developed
  • The individual litigants themselves had the chance of a ‘day in court’ that felt meaningful to them and was not just a charade.

This is all excellent news. But it does not mean that the appeal will succeed. I would still say the odds are stacked against.

And of course the judges might change again, losing the humanity which has marked recent appointments and reverting to hard-nosed type (historically the norm).

As we await the Court’s ruling in the St Paul’s case….

How do we define success?

Already the brave and extraordinary discipline shown by Occupy LSX, the organisational strength of the movement and its intelligent engagement with the issues have marked it out as a triumph. The case – taken against them of course and not by them – has been turned into a public soapbox, giving them a chance to explain their point of view and counter the demonization to be found elsewhere, in some of the Tabloid media, among the more hard-nosed City types and even – saddest of all – in St Paul’s itself where a noisy commitment to social justice has been shown to be risibly skin-deep.

Last night’s event was full of hope – hope that society can be transformed; hope that our culture can find the levels of solidarity that it so desperately needs; hope that equality can be achieved rather than merely spoken about.

But this hope never collapsed into utopian illusion.

Nor did it threaten at any time to morph into a cynical aggressiveness towards a public who refuse to share the dream.

There was an intelligent awareness of the time dreams take to be realised, of the hard work that utopia demands and of the need to be there for the long haul. Minds are not changed by singular actions, however singular. They are changed when society comes to regard these singular actions as the rule rather than the exception, when common sense shifts onto the side of the erstwhile heretic. This can take a long time or happen very quickly indeed. But it can always happen. No situation is so bad that dreams – with courage, determination and patience – cannot be realised.

I was proud to be involved last night and honoured to have been asked to speak.

Abu Qatada v UK

First Article 3.

In the Abu Qatada case the European Court of Human Rights has ruled that he is not likely to be tortured or ‘ill-treated’ in Jordan if he is returned there to face the authorities.

Now this is, ultimately, a question of judgment for the court, based on an assessment of probability on the current facts. It could theoretically arise in a case involving Sweden or Norway just as much as it does in relation to Jordan or (for that matter) Libya or Egypt. It doesn’t come up because it never even occurs to anyone that such ill-treatment might occur. The thought, though, is uppermost when these other places are the likely recipients of expelled European residents.

Memoranda of Understanding are just devices for rebutting the inference of likely ill-treatment that is made simply on the basis of the record of countries like these. It is neither logical nor fair to rule them out as evidence simply because their having been volunteered proves irretrievable bad faith.

The weight to give them is quite another matter.

The Strasbourg court has rejected such memoranda in the past. In Abu Qatada, the court accepted that the facts before it (including of course – and I agree critically – the memoranda agreed by the British and the Jordanians as to how the applicant would be treated) did not give rise to the ‘real risk’ of ill-treatment necessary for their jurisdiction to prohibit the removal to kick in. As the Court says ‘its only task is to examine whether the assurances obtained in a particular case are sufficient to remove any real risk of ill-treatment’.

Commentators critical of this ruling have to accept that what they are doing is questioning a judgment of the court on the facts. If the Government were to do this, no doubt the human rights activists would be furious.

Now Article 6.

This ruling is a very strong one and worth defending if this case goes further up the Strasbourg hierarchy, as it may well do.

The Court found that Abu Qatada has successfully ‘discharged the burden that could be fairly imposed on him of establishing the evidence against him [in Jordan] was obtained by torture’ and that he has also therefore shown that there would be ‘a real risk of a flagrant denial of justice if he were deported to Jordan.’ This strikes me as a strong finding and a reflection of how torture (of anyone) should never be allowed to pay.

But….

How can this Article 6 ruling be gratefully received by commentators (based as it is on a finding of a set of facts) while the court’s other ruling on Article 3 (equally based on a finding of facts) is rejected?

Are the critics allowing their feelings to run away with them, turning the Strasbourg court into an à la carte menu from which only the bits agreeable to their previously identified positions are to be selected?

Does such partisanship do the advocacy of human rights any favours?

St Paul’s – Reflections On The Court Ruling On Eviction

All flourishing Christian organisations need to steer a careful course between mammon and morality.

On the one hand there is the wealth, power and influence that flow out of such success, especially if it is millennia old (as with the Roman Catholic church) or backed by the state (as with Anglicanism): how can one bite the hand that feeds one if the food is so good and one’s corpulent body now so dependant? On the other hand there is the unsettling example of Jesus himself – uninterested in money; contemptuous of luxury and of worldly power; devoted to the needy (or as we would say today the disadvantaged).

Some churches solve this problem by assimilating mammon to morality – the good are good because they are rich, and vice versa. This is too obviously special pleading for the more thoughtful faiths for whom, however, the problem remains: how can they be rich and radical at the same time?

These churches usually manage to side-step this dilemma by using their knack of fine rhetoric to call upon others to act. A prime example is the Report Value and Values: Perceptions of Ethics in the City Todayissued by the St Paul’s Institute in November last year, an excellent critique of the ethical emptiness of global capital out of the mouths of financial services practitioners themselves.

But by the time this Report came out, the Occupy LSX camp had arrived at St Pauls, sparking a crisis of identity for the great Cathedral that supports this ‘challenging and well-resourced space for conversation’ (as the Archbishop of Canterbury had described the Institute in June 2010).

With eviction proceedings to remove the camp having yesterday produced a judgment against the occupy group, things are likely to get worse before they get better for the cathedral. At the back of everyone’s mind will be the feeling that a rare opportunity has been missed for an heroic religious engagement, for action as well as words.

It had all begun so promisingly.

The camp had only arrived at St Pauls in October last year when the stock exchange proved impenetrable. The police did not initially act, and the Cathedral itself – in the ebullient and civil libertarian form of the Canon Chancellor Giles Fraser – was positively supportive. Services continued. The talk was of a presence until Christmas. Early compromises allowed visits to the Cathedral to continue. The peaceful nature of the protest was acknowledged by all, the atmosphere good. Treated with respect and properly self-regulated, given as Giles Fraser was later to say on Newsnight ‘nice cups of Anglican tea … and a warm embrace’, a camp such as this might well have grown into a benign witnesses to the need for radical change, as the anti-nuclear Greenham common women had done a generation before. And what a gift this would have been to a Church about to launch its critique of city capitalism.

Faced with an open goal, the senior church authorities promptly turned tail and shot into their own net.

The talk was suddenly all of health and safety and of the risk of fire. The advice of professionals in these fields was immediately accepted, leading first to closure of the Cathedral (soon shown to be quite unnecessary) and then to a legal action launched with the intention of expelling the protestors. When the latter action was suspended the more hard-nosed Corporation of London took on the job of clearing out the protestors, the custodians of the Cathedral whispering encouragement while trying to look the other way. By then the Cathedral had lost both Fraser and the Dean himself, Graeme Knowles.

The law appeared stacked against the protestors from the outset and the judgment yesterday can have come as no surprise, with both highways and planning law being deployed by the City to legitimise its effort to get the protestors removed, not just from the areas all around the Cathedral but from the Cathedral land as well.

Of course the protestors pleaded the right to freedom of expression under the Human Rights Act but that measure was always unlikely greatly to assist. The European Court of Human Rights has been reluctant to extend its protection to those who invade private property in the effort to get heard, and the same has now proved to be true (so far as this case is concerned) of deliberate efforts to obstruct the highway for the same purpose. Lindblom J had the job of assessing the proportionality or reasonableness of the disruption as against its value as speech – and here again the background hostility of the Cathedral was likely to weigh heavily against the Camp.

With this ruling handed down, the case is already shaping up to resemble the Dale Farm debacle, with endless litigation, media summits, appeals, further clarifications of court orders and – eventually – a nasty moment when the camp is physically dismantled by the authorities.

If and when this does come about, the Cathedral will have been primarily responsible. Had it adopted Fraser’s line, the protestors would probably be gone by now (as they had always intended), the Institute’s report on the city would be a widely admired and much read document, and the church’s commitment to economic justice would have been given a tremendous boost.

Instead….

We have this spectacle of a great cathedral acting not as a focus for Christian action but as a grand religious NIMBY.

The chance to undo this damage will not come about – opportunities of the sort offered by the Occupy movement are rare. No doubt there will be many more remarks such as that of the Revd Michael Hampel, Canon Precentor who commented of the Value and Values report that “Action is a crucial goal of the protest camp outside St Paul’s Cathedral. We hope that the telling findings of this report can provide a solid foundation for future engagement and highlight issues where action might be of mutual concern for all sides of the debate.” This kind of comment is so within the comfort zone of the Church to be indistinguishable from complacency.

At Mass at the start of January celebrating the Epiphany, Catholic Christians had Psalm 71:

‘For he shall save the poor when they cry and the needy who are helpless. He will have pity on the weak and save the lives of the poor.’

What kind of an epiphany has St Paul’s offered the world this Christmas season?

Al-Khawaja And Tahery v UK

Surprise – or no surprise at all? The European Court of Human Rights has decided not to precipitate a crisis of authority between itself and the UK Supreme Court.

In the long awaited Grand Chamber decision of Al-Khawaja and Tahery v United Kingdom, decided shortly before Christmas (15 December 2011), the challenge was to UK hearsay law, a law which in certain circumstances allows statements to be admitted in evidence and to play a sole or decisive role in securing a conviction even where these statements are not made in the course of the trial.

An earlier chamber ruling in the case had found against the UK on exactly this point.

It may be worth pausing briefly to remind ourselves of what the Convention says about fair trials. The general guarantee of fairness is in Article 6(1) – ‘In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing.’ Article 6(3)(d) then adds further meat to this by giving a defendant the right ‘to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.’

Given these express rights, it might be thought not to have been too surprising that the Chamber of seven had found a breach, indeed had done so unanimously. But the ruling had created quite a storm in Britain. For many it crystallised much of what was wrong with Strasbourg: inflexible, ill-informed about the common law and (for all their talk of margins of appreciation and the like) insensitive to local expertise. The Supreme Court had even disowned it, in R v Horncastle[2009] UKSC 14. Politicians waded in. The popular press – already hostile because of the commercial damage HRA-based privacy law has done them – became even more hostile still. Everyone waited for the ‘verdict’ of the Grand Chamber whose hearing had taken place as long ago as May 2010. That whole year passed and then as 2011 drifted by concern grew. Had the judges forgotten? Were they too scared to act?

Now we know the reason for the long wait: the court was taking especial care. The Grand Chamber has now ruled that these Article 6 entitlements do not inevitably lead to a breach of the Convention where statements of the sort allowed in under UK law play this kind of sole or decisive role. The Chamber was wrong; the UK Supreme Court was right, or at least more right than the first version of Al-Khawaja and Tahery had been.

Of course where such evidence is admitted – with no possibility of cross-examination or testing in open court – then it has to be treated cautiously and where it is the sole or decisive evidence then the court needs to be super careful and check what other safeguards there are so as properly to guard against injustice. But crucially there is no automatic breach of Article 6. Fifteen of the judges shared this opinion, with only two dissentients taking the purist line which had proved so attractive to the Chamber first time round. To these two (Judges Sajó and Karakaş) the ‘last line of protection of the right to defence is being abandoned in the name of an overall examination of fairness’ – melodramatic perhaps but not less true on that account. On any reading it’s a large-scale watering down of Article 6(3)(d).

The practical effect of this was that Mr Al-Khawaja’s application was dismissed while that of Mr Tahery was upheld: the differences in facts between the two cases meant that the reliance on hearsay in the first was acceptable, but in the second was not.

One of the features of human rights law is its insistence on crossing subject-boundaries while seeming to remaining firmly within public law. It must sometimes be irritating to specialists in other fields to see human rights muscling in on their patch in this way. What do our criminal lawyers think about the ruling? It is a little too early to be sure, but if Horncastle is any guide, they will be delighted. My colleague at LSE Mike Redmayne (our resident expert on the law of criminal evidence) is fairly relaxed about the outcome, seeing in it the probable ‘development of something like a corroboration rule for hearsay.’ Mike goes on:

“So on a first look the ECHR come out of this pretty well: they’ve played the Supreme Court at its own game, of carefully reasoned argument drawing on comparative resources, and done a good job. They abandon some of the stupid arguments the Chamber made. And the English courts won’t have to concede much.”

The wider importance of the ruling is also obvious to those whose interests lie more in human rights law rather than in criminal procedure.

If the minority had won out there would now be quite a lot of political noise about this silly court and the inflexible insensitivity of its rulings and so on. (Accused persons escaping justice through reliance on the death of their victims or their terrified refusal to testify are rarely the most attractive of characters.) It’s a relief not to be having to listen to all these pontificating sceptics, and know at the back of your mind that maybe, just maybe, they have a point.

There has been much talk recently about how the Supreme Court should deal with Strasbourg judgments, with judges and politicians as well as academics weighing in.

But this case is a reminder to us all that there is another question as well – about how the Strasbourg court should react to local judgments. Thinking this through is probably what took the court so long: on the one hand it did not want simply to surrender jurisdiction to an anarchy of local tribunals. On the other, well – what did it know about hearsay law in England (and much else, elsewhere as well, you might well say)?

The enduring importance of Al-Khawaja and Tahery may well lie in the short concurring of Nicolas Bratza, the UK judge, in the course of which he remarked:

“The present case affords, to my mind, a good example of the judicial dialogue between national courts and the European Court on the application of the Convention to which Lord Phillips [in Horncastle] was referring.”

If the UK does indeed drift out of all our Europes in the coming difficult years – not impossible given the composition of the current Conservative parliamentary party and the rise of English nationalism – it will be nearly as much of a loss to continental Europe as it undoubtedly will be on the ‘home front’. As Horncastle shows, Europe needs a UK that is engaged, but in a practical, sensible and intellectual rigorous way.

Horncastle set Strasbourg a test which having pleaded special needs and asked for more time, it has now triumphantly passed.

It’s All Hearsay

Well there you are: the European Court of Human Rights has decided not to precipitate a crisis of authority between itself and the UK Supreme Court after all.

In today’s Grand Chamber decision in AL-KHAWAJA and TAHERY v. THE UNITED KINGDOM, the challenge was to UK hearsay law, a law which in certain circumstances allows statements to be admitted in evidence and to play a sole or decisive role in securing a conviction even where they are not made in the course of the trial. The Grand Chamber has now ruled that this does not as such amount to a breach of the Convention’s right to a fair trial (to be found in article 6). The Chamber judgment of the same name which claimed this was wrong; the UK Supreme Court ruling of R v Horncastle [2009] UKSC 14 (with Lord Phillips prominent) which said as much was right, or at least more right than the first version of Al Khawaja and Tahery had been. Of course where such evidence is admitted – with no possibility of cross-examination or testing in open court – then it has to be treated cautiously and where it is the sole or decisive evidence then the court needs to be super careful and check what other safeguards there are to guard against injustice. But crucially there is no automatic breach of article 6.

My colleague at LSE Mike Redmayne is an expert on the law of criminal evidence and with his permission I summarise here his comments to me about the case:

“Well, it’s an interesting judgment. They do a careful job: one of the better ECHR judgments I’ve read. There’s a concurring judgment from Judge Bratza, which sets the context: he welcomes the dialogue with the national court.” (I intervene here to set out exactly what Judge Bratza said: “The present case affords, to my mind, a good example of the judicial dialogue between national courts and the European Court on the application of the Convention to which Lord Phillips was referring., and thinks this is a sensible way to settle things.”) …

Then Mike goes on:

“The majority judgment looks at the law in lots of other common law jurisdictions, giving a more careful review than the Supreme Court did in Horncastle. They also look very closely at the Supreme Court’s arguments, and address them one by one. They don’t concede much. The Chamber judgment was that if hearsay is the sole or decisive evidence against a Defendant, it can’t be used. But the Grand Chamber concede that this is too absolute: exceptionally, hearsay can be sole or decisive and not make a trial unfair. On the facts of the cases, they conclude Al-Khawaja had a fair trial (there was corroborating evidence), but that Tahery did not…. Where that leaves domestic hearsay law is hard to say: but we’re probably left with something like a corroboration rule for hearsay.”

The partly dissenting judgments of Judges SAJÓ AND KARAKAŞ show how this case might have gone.

The Convention gives a defendant in a criminal case a specific right (in article 6(3)(d)) “to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” On the view of these dissenters, this represents an unqualified right which cannot be turned into just an element in the general test of fairness already set out in Article 6(1) – “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” But this they complain is exactly what the majority have done. Before today “this Court has never stated that fairness can still be achieved [even] if one of the fundamental rights is deprived of its essence.” They went on: “With regard to the right to cross-examine witnesses and the related but broader equality-of-arms principle, the Court has systematically and consistently drawn a bright line, which it has never abandoned, in the form of the sole or decisive rule.” And then melodramatically but perhaps accurately: “Today this last line of protection of the right to defence is being abandoned in the name of an overall examination of fairness.”

Who is right?

There is certainly a change in that the “sole or decisive” rule is dumped but only on account of its inflexibility. It is still the operating assumption and will be hard to rebut. And whatever about the substance of the case, if the minority had won out there would now be quite a lot of political noise about this silly court and the inflexible insensitivity of its rulings and so on. It’s a relief not to be having to listen to all these pontificating sceptics, and know at the back of your mind that maybe, just maybe, they have a point. Things will probably calm down on the Strasbourg front now, so far as the local political temperature is concerned.

Last word to Mike:

“So on a first look the ECHR come out of this pretty well: they’ve played the Supreme Court at its own game, of carefully reasoned argument drawing on comparative resources, and done a good job. They abandon some of the stupid arguments the Chamber made. And the English courts won’t have to concede much.”

In other words: a score draw after an entertaining match. Strasbourg and the Human Rights Act live to fight another day!