Category Archives: Human Rights

The Future of Protest

Does protest have a future? That’s a question that, even just a few years ago, I would have found unthinkable, not only here in the United Kingdom but around the world as well. That was a time when human rights seemed to be on the march everywhere, the Arab Spring was throwing authoritarian regimes in north Africa and the Middle-East into turmoil, and even confident despots like Vladimir Putin in Russia and Alexsandr Lukashenko in Belarus were having to deploy high levels of coercion merely to mind their backs. Liberals have always been tempted to believe that the course of history leads inevitably to ever-increasing levels of personal freedom, that they are bound to win. That is how many felt.

No more. This year I ran a new lecture series at LSE, on ‘Freedom and the Law in Britain’. Open to all – academic staff, students and professional services alike – the idea was to escape the tyranny of compulsion, of course codes, course work and exam prep, to offer a fresh perspective on a subject of what was clearly great contemporary interest, (It was the efforts to control protest about the Israeli destruction of Gaza that first gave me the idea.)  But is was also, I thought, to being some much needed historical perspective.  My plan was to show how it has invariably been a struggle to exercise civil liberties, that every new group always gets a rough time from the police and the public until (if they win) they are retrospectively deified as constitutional treasures. Reinterpreting the past like this is what has long allowed us to pretend that civil liberties are the life-blood of English democracy: all those valiant suffragettes, impressive hunger-marchers, defiant workers fighting for their basic rights, and so on. My initial thought, then, was to force my audience to get a grip, to see that the present was no worse than the past had been, that we are not ‘becoming the police state’ that many feared but rather repeating old cycles of civil libertarian oppression that would be followed by – if we held our nerve – the good guys winning.

Preparing the lectures changed my mind. It is worse today than it ever was in the past. A succession of public order laws has poured from Westminster in recent years and these have made protest practically impossible, not just old-fashioned stuff like marching and meeting but new-fangled ways of drawing attention to your cause as well (‘slow marching’; ‘locking-on’; even just being ‘noisy’ in the wrong places; and much else). I knew that elected parliamentarians of both parties have never liked protestors as in their bones (and we can see why) they think the best, indeed the only right thing to do, is to stand for parliament as they have all (by definition, successfully) done. But the current antagonism has been outlandish in its reach: it is as though overwhelmed by the scale of the problems they face, MPs have decided that it is easier to hound that pro-EU bloke who greets them with some music on the way in, or some other single protestor who sits across the road reminding them, day in, day out, that they have blood on their hands. As the power of our sovereign parliament shrinks before our eyes in the impoverished country that Brexit Britain has become, so ‘taking back control’ ends up reduced to being the ability to bully into subjection those citizens who protest in the hope of changing the country for the better.

Three aspects to the current on-going effort to criminalise effective protest make things worse than in the past.

First it is very unlikely that any new Labour administration will roll back the powers accumulated at the centre of government. Labour has not been civil libertarian in spirit since the days of George Lansbury in the 1930s and (briefly) Jeremy Corbyn a few years ago. Neither had any electoral success. The leader who did, Tony Blair, adopted all previous Tory laws on protest and added many of his own.  Keir Starmer is likely to follow this path, more aware than even Blair was that in Britain’s flawed democratic system coercion pays electoral dividends.

Second, while it is true the police have historically never been (to put it at its mildest) exactly sensitive to the necessity of accommodating protest, they have usually been mindful of their obligation to obey the law, or at very least the risk of not doing so. In recent years a succession of government ministers from the prime minister down have sought to pressurise senior police officers to act to ban protest where they have no legal authority to do so and/or to be more aggressive in their policing where such protest does take place. I think no such overt effort to interfere with the operational independence of the police has ever occurred here since democracy took root in Britain at the end of the last century. Weirdly aggressive ministers who in past administrations would never have escaped the ranks of junior ministers (if they made it that far) now don the constable’s helmet and yell from the sidelines for more, not less police violence. The police are confused as to which to follow, authority or the law.

Third, there is the recent altogether closer association that has been fostered between corporate power and the police.  Much contemporary protest on climate change and its effects has been focused not on governmental but rather on those large private companies that benefit so hugely from expediting the destruction of our planet. They do this perfectly lawfully of course, but lawful too should be the peaceful means of protest designed to draw their conduct to the wider public while also attempting to slow down their polluting endeavours. Increasingly the police work with private power to make such protest impossible, agreeing how to police the environmentalists so as to reduce their effect.

What can be done? There are still bulwarks in place defending the rights of protestors.  Some juries at least have been willing to treat protestors with respect and acquit where the state has been baying for punishment. Now and again judges take the rule of law seriously (much more so than in the past) and rule against abuses of executive power. Smart phones make police brutality much harder than in the past, and social media has helped dilute the homogenising force of the right-wing press. Business boycotts by individuals are hard to defeat as the government has not yet got the capacity or the will to force us to buy products produced by exploitation or illegal occupation.

We still need, though, to be even smarter than ever before if we are to work out new ways of enjoying the solidarity that follows from a mass action against oppressive action by the state and its corporate partners, ways that do not end up with many of us in jail. In the old, pre-democratic days, it was a riot that power truly feared; even as recently as the late 1980s, it was the anti- poll tax disturbances that helped bring the Thatcher premiership to an end.  But such violence needs to be very carefully focused if it is to succeed, and – let’s face it – the essence of a riot is its uncontainability.

What does the future hold for protest? How should we do it today? Readers, any ideas?

 

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.

 

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.


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).