Category Archives: Human Rights

Constitution, Human Rights

The Glory of the Hamlyns

How a little-known benefactor established an academic series of immeasurable value

 

(as published in Prospect)

Emma Warburton Hamlyn was born on Guy Fawkes Day 1860 in Torquay. Her father was a law clerk and after a while started work as a solicitor, a successful one of sorts, becoming a commissioner for oaths, doing a little bit of work from time to time for the province of Nova Scotia and eventually making it onto the magistrates’ bench. Emma was an only child, with her mother mainly at home but helping out in the local schools and generally doing her bit for the Methodist faith which she shared with her husband. The family lived in Torquay pretty well all their lives, Emma never seems to have budged after her parents’ death: the most assiduous of searches have revealed membership of nothing, visits to nowhere, relationships with no one. She died in 1941, aged 80, in the house in which she had spent most of her life.

Anonymous in life, Emma Hamlyn has been immensely celebrated in death. Generations of lawyers recall her name with affection. In the decades since her apparently lonely demise, the greatest jurists of their day have grabbed the chance of her imprimatur to reach global audiences in the tens of thousands. Lucky law students have the chance to attend a “Hamlyn” lecture if their enterprising professors have managed to secure one for their university; many more study the lecture texts published annually as a book under her name. How can all this have happened?

Against legal advice and out of the blue, Emma Hamlyn chose to leave the residue of her considerable estate for the “furtherance by lectures or otherwise among the Common People of this Country of the knowledge of the Comparative Jurisprudence and the Ethnology of the Chief European countries including our own.” Her express intent was that, as a result, “the Common People of our Country may realise the privileges which in law and custom they enjoy in comparison with other European Peoples and realising and appreciating such privileges may recognise the responsibilities and obligations attaching to them.” Legal action in the Chancery Division was needed (as Miss Hamlyn had been warned) before the show—a set of annual lectures was the agreed format—could be got properly on the road, with (what is now) the University of Exeter leading in their organisation and the universities of London, Leeds, Belfast and Wales helping out with trustees.

The first lecture, Freedom under the Law, was delivered at the University of London’s Senate House in 1948 by Lord Denning and set the standard for the subsequent lectures. He wasn’t Lord Denning then of course, just plain Sir Alfred Denning, new to the Court of Appeal. But what a booking, a bit like getting the Rolling Stones to launch a series of concerts before anyone knew who they were. Denning went on to become a legal rock star, lived long, wrote much and in that era before mandatory retirement hung on as a judge Ruth Bader Ginsburg-style until the early 1980s (when a recklessly unchecked book did for him). Reviews of this first set of Hamlyn lectures stressed the beauty of Denning’s writing and the ability he had to reach both the “common people” and the legal glitterati. The course of the Hamlyn lectures was set. In the 1950s, Lord Devlin lectured—famously—on juries as “the lamp that shows that freedom lives” and the legendary legal polymath Glanville Williams on “the proof of guilt.” The 1960s saw the first woman (Baroness Wooton, on crime, bursting the format with a book in two parts) and moves into foreign jurisdictions: maybe the organisers thought — heretically! — that those abroad might have the occasional good idea. Reflecting the times as well was a new interest in welfare law, a sign of the innovative instincts of the trustees. Perhaps the most famous Hamlyns of all are those of Lord Scarman in 1974—English Law – the New Dimension—talking about human rights before anyone really knew what they were. Constitutional Fundamentals by Professor William Wade in 1980 nearly launched a recherché legal revolution to impose those self-same human rights, with a wonderfully bonkers argument about how all it took to achieve a revolution was a few swear words from judges. (“Changing the judicial oath” was how this old-school but wildly fresh thinker put it.) Another early booking, Denning-style, was Brenda Hale, 1995, a newbie in the High Court’s Family Division. Cambridge University Press took the lectures over in 2005 and they now have a glossy website, lovely photos and an energetic publicity drive behind them. Eleanor Sharpston QC gives the first of her three—remotely, of course but notionally from Edinburgh—on 29th October, on the European Union and the rule of law: as a senior advocate within the European Court of Justice until Brexit there will be much of topical as well as academic interest for sure.

Of course you cannot have a lecture series with mega stars every year. We jobbing professors get a look in too, from time to time. I gave the Hamlyns in 2005, on the catchy title (for which I had one of the organisers to thank) Can Human Rights Survive? It is still easily my best-selling book (not a difficult achievement admittedly). I started mine at LSE (where I work) and then went to Durham (where some of my friends who violently disagreed with me worked and who were gagging to have a go at me) and from there to Belfast. (Dublin was ruled out: a bit too foreign for Miss Hamlyn it was decided.) The bequest paid my way, rewarded the attendees with a drink afterwards and laid on a lovely dinner at each venue. (My mother drove across the border for the Belfast one, got herself into the dinner of course even though she was unexpected, and then mortifyingly made an after-dinner speech about what a good little boy I had been; in memory, though, this has grown into the highlight of my academic career.) The Hamlyns do that—bring people together (and not just relations), and when done well focus attendees’ thoughts on a legal issue which has been rendered accessible by a speaker who knows both their stuff and the nature of the audience, and who can do it all with panache.

Covid-19 has pinched all our lives even if it has not destroyed them, and this year’s distinguished speaker will have to make do without the canapés and conviviality. In giving the lectures at a time when over 800 lawyers have felt compelled to sign a letter to the Prime Minister and Home Secretary calling on both to desist from using hostile language against those in the law profession, Sharpston will surely be choosing to reassert the importance of the rule of law. I used to be pretty scathing about judges and lawyers and the Inns of Court and all their paraphernalia of privilege—one of my Hamlyns went on and on about this (hence my Durham friendly enemies finding lots to attack on the night). But now I am not so sure. I guess my hostility was all the wilder for what I had for so long taken for granted about the United Kingdom—that the government would respect the law; that separation of powers would not be regarded as dispensable; that the executive would not exploit the vagueness of the UK constitution to hoard power without regard to the consequences. It is thought that Emma Hamlyn founded her trust in memory of her father, though she never said so. I like to think that the magistrate would have been pleased with what his daughter has set in train, and that there will be many in the (remote) audience nodding in agreement, and many Emma Hamlyn’s too—decent, quiet observers of the UK who know something has gone decidedly rotten.

 

Civil Liberties, Human Rights, Law, Misc

The Overseas Operations Bill: a license for atrocity

The Overseas Operations (Service Personnel and Veterans) Bill is what happens when the pub bore takes over British defence policy and there is no one left to prevent his cranky anger being turned into law. A rambling hostility to Johnny foreigner combines with a maudlin concern for the stresses faced by British troops on duty abroad to produce a measure which is almost as embarrassing to good governance as it is to those who care about contemporary British values.

The plan outlined in the bill is to compel prosecutors to let soldiers off the hook for crimes committed overseas as long as five years has elapsed since their alleged occurrence. We still say we have independent prosecutors and the rule of law in this country so a sweeping indemnity bill was out of the question. Instead the circumstances have to be “exceptional” for such proceedings to continue, with “particular weight” being given to factors that “reduce… culpability” such as the “adverse effect (or likely adverse effect)” of a suspect soldier’s “experiences and responsibilities (for example, being exposed to unexpected or continuous threats, being in command of others who were so exposed, or being deployed alongside others who were killed or severely wounded in action).” This “adverse effect” might relate to a soldier’s “mental health” or even “their capacity to make sound judgements or exercise self control.” Just in case your accused soldier is left exposed for his or her crimes while more vulnerable criminal colleagues walk free, the prosecutor is also required (emphasis added) to “have regard to the exceptional demands and stresses to which members of Her Majesty’s forces are likely to be subject while deployed on overseas operations, regardless of their length of service, rank or personal resilience.” (Yes, all these quotations are directly from the bill, not a ministerial speech, or a letter to the Telegraph.) And just in case things go wrong, there is a long-stop guarantee against inappropriate prosecutions in the shape of a requirement for the consent of the attorney general. That office is held at the present time by Suella Braverman.

The protections afforded these criminal suspects among the armed forces are explicitly extended to cover those accused of a range of domestic criminal law as well as the great majority of even the most serious international crimes (genocide; crimes against humanity; war crimes). They do not apply if the victim is a Brit rather than a foreigner. Other provisions aim to curb the capacity of human rights law to reach military actions overseas, and then—revealingly—anticipate departures from human rights law? in relation to future “significant … overseas operations,” retaking Calais perhaps, or laying siege to Brussels. The UK the promoters of this bill have in mind is one that has recovered its imperial greatness and the wonderful impunity that comes with being the international hegemon. Oh happy days!

Why has the government done this? Many senior figures in the armed forces are certain to be unhappy at this unravelling of their brand as modern, rule-based, civilised and so on. The International Criminal Court is bound to see it as a direct challenge to its authority.


The bill is part retaliation, part provocation.

So far as the first of these is concerned, since the invasion of Iraq the courts have been robust in their pursuit of the armed forces in relation to a series of alleged violations abroad of ordinary and international criminal law. In a recent article included on this site (TORTURE THEN AND NOW: THE ROLE OF THE JUDGES) I have detailed the extent to which the judges have had to overcome high levels of hostility, obstruction and deliberate obfuscation from the authorities in cases of this nature. Nor has it only been the judges: on one occasion even the government’s lawyers went so far as to consider sending in the Metropolitan Police to try to find relevant materials within the Ministry of Defence. This is all a far cry from the good old days when, in the analogous context of Northern Ireland, judges like Lord Widgery, Lord Denning and Lord Diplock went out of their way to protect the forces of law and order from close scrutiny. The government has not liked the result, and nor have many parliamentarians. A Defence Select Committee report in 2017 attacked the use of the law in this context and then the exposure of one solicitor’s wrongdoings in the field of evidence-gathering gave the antagonists of what they call “lawfare” their chance. This bill is the result.

Then there is the provocation. The government appears desperate to get the leader of the opposition Keir Starmer off Covid-19 and onto “elite metropolitan issues” like the rule of law, human rights and the prosecution of patriotic soldiers for “doing their job.” It was the same in the mid-1990s when a then-rampant shadow home secretary Tony Blair was constantly being forced to defend his party’s hostility to UK anti-terrorism laws—to his intense embarrassment. Starmer has not yet risen to the bait. So far as this bill is concerned that has been hugely disappointing. It can surely not be doubted that the British public know the difference between doing your duty and murdering and torturing innocent people. This was a conversation Starmer could have afforded to have, and where he might well have been persuasive. Next up will be the Human Rights Act. Labour will have a big decision to make then about whether to defend it or let it go. That will tell us a great deal about how they will govern: compromises of this serious a nature may be made in opposition but their moral contamination is hard afterwards to shake off.

With this bill we have further evidence of what the UK does not stand for: human rights, an ethical military and the rule of law. With Brexit we know it rejects regional co-operation too. What’s left? Trade deals with the Old (aka White) Commonwealth? The display of imperial power? You cannot govern a country on the basis of nostalgia however loud you shout.


Human Rights

On Fantasy Island

My book On Fantasy Island. Britain, Strasbourg and Human Rights will be published by Oxford University Press in July, with the proper launch being in September. I did a lecture a while back with this title – a summary of which you can read here . The book explores the various myths, illusions and occasional downright deceptions that have marked the attitude of our two main political parties, but especially the Conservatives, to the Human Rights Act since it was enacted in 1998. After going through these fantasies I outline the facts behind the Act and then end with some thoughts about the future.  About 80,000 words – an antidote, I am hoping, to the infections of noisy nonsense that the Act has attracted. The test of the value of a law lies in the sort of enemies it attracts.  On this basis alone the Human Rights Act would be worth defending!

Watch out for my new web site devoted specifically to the book, coming soon.  I’ll be including long extracts from it there, and comments on the latest speeches on rights as and when they emerge – like Theresa May’s yesterday, on which as well more later (very soon in fact).

Human Rights

Do As I Say Not As I Do: Hypocrisy And Human Rights

Shortly before he became Prime Minister, David Cameron launched the Conservative Party’s Annual Human Rights Report. In it the Party called in exemplary fashion for an increase in human rights protection around the world. Introducing the Party leader, a young man from the Democratic Republic of the Congo (a former child soldier) praised the Party’s emphasis on ‘responsibilities’ as well as ‘rights’. He then went on to give a moving endorsement of British law, and in particular the Human Rights Act without which – he went on to say – his claim to asylum would never have been successful.

Woops.

No one had told him the Conservatives wanted to repeal the Act, that human rights were for everybody – except those over whom this Party hoped to be able to exercise control.

This kind of double-standard is par for the course so far as human rights are concerned.

The more powerful a state is the easier it finds it to be hypocritical in its conduct without any serious risk of this being noticed or mattering very much if it is.

  • For years the US has lectured the world on human rights and occasionally started revolutions elsewhere on the basis of them, all the while resolutely refusing any proper critique of its own human rights record, at home or abroad. (This is not just the obvious – Guantanamo and so on – but extends to such basics as childrens rights and the death penalty and much else besides.)
  • Israel is keen to advertise its ‘western values’ through its special trading relationship with the EU and its participation in such events as the Eurovision song context and various European football competitions – but we hear very little from this beacon of democracy and human rights about agitating to be allowed to sign up to the European Convention on Human Rights with its judicial oversight from Strasbourg – which for example even Turkey and Russia have managed to do.

Now the Vatican has joined the list of places which talk a good human rights game abroad but can hardly be said to be practising what it preaches at home.

Towards the end of May the Pope’s butler Paolo Gabriele was arrested, or so it was eventually acknowledged – the Vatican doesn’t do due process like the democratic world. It seems Gabriele was then sent to the Vatican cells where he has been kept through the early months of the Summer, until a sudden announcement (from the press office, rather than any kind of judicial officer) that he had been ‘released on parole’, in fact placed on house arrest. It seems a ‘Promoter of Justice’ has now determined that charges are to be brought, and it seems it will then be a ‘Vatican judge who will then decide whether he will face trial or be acquitted’. According to media reports in Italy, a sentence of 6 years could be meted out, albeit at this point the butler would need to be transferred to an Italian prison. Meanwhile we are assured by Gabriele’s lawyer that the butler had acted entirely on his own and as an ‘act of love’ towards the pope.

Well what would you say, after months in a cell in the sweltering heat of the Vatican and facing a tribunal that might jail you for many years?

Let’s substitute the words ‘Beijing authorities’ here for the Vatican and ‘defiant bishop’ for ‘the Pope’s Butler’ – what a fuss the Vatican would now be making, about freedom of religion, freedom from arbitrary detention, liberty of conscience, and so forth? And as for the ‘act of love’ our hypothetical Bishop is now said to be expressing towards the Communist Party – obviously unreliable, after two months in isolation in detention and with the fear of greater punishment to come?

And it has to be said that even Chinese laws are easier to access than those of the Vatican.

The web site of the Holy See takes you to a Vatican City State site, the section on the governance of which begins with the simple statement that ‘The form of government is that of an absolute monarchy’ [‘La forma di governo è la monarchia assoluta’]. Short summaries of the further disposition of power then appear. The ‘Fundamental Law of Vatican City State’ promulgated by John Paul II on 26 November 2000 has more on the nature of the Vatican flag than on the rights of anyone who might be affected by the exercise of executive power. Both the Holy See and the Vatican City State have signed up to various international Conventions – but these have not included anything so specific as the European Convention on Human Rights, with its prohibition on inhumane treatment, its demand for fair trials and its requirement that detention be non-arbitrary.

This insulation from European human rights norms doesn’t matter so long as they keep the butler holed up in the Vatican. But it could become important if Gabriele ends up in an Italian prison.

For Italy is bound by the Convention and – more to the point – an individual can take a case to the Strasbourg court if he or she can show him or herself to be a victim of a violation. There was a case a few years ago in which nullity proceedings in the Vatican which needed to be enforced by Italy were found wanting in a case against that country.

If Gabriele found himself languishing in an Italian prison, at the very least there would be an arguable case that the detention was unlawful, not least because the process that lead to his incarceration had been fundamentally flawed. It is impossible to tell how such a case would go – but clearly the hearings would be very embarrassing to the Vatican and its absolute ruler.

Does the Holy See want to have the Vatican state’s procedures exposed to scrutiny by the very court that has been at the forefront of establishing a secular, multi-cultural identity for Europe?

Expect a retreat by the authorities, aided and abetted by further fulsome apologies from the errant butler. Rome can go back to holding forth on the international stage safe in the knowledge that it has avoided scrutiny of its own behaviour. But a nasty taste of hypocrisy will remain hanging in the air.