Tag Archives: human rights

Misc

The Government’s Plans for Human Rights

The consultation on the Human Rights Act

 

The Conservative Government in general and the Secretary of State for Justice Dominic Raab in particular have a problem with human rights.  It is one of their own making and from which the convoluted consultation paper published on Tuesday is an effort to escape – but it is very unlikely to succeed.

On the one hand the UK government preaches human rights around the world, insisting that various countries of whose conduct they disapprove adhere to them, with Liz Truss playing the role of a latter-day Lord Palmerston, just as Mr Raab did when he was Foreign Secretary.   We cannot pause here to reflect on the absurdity of this mid-ranking, rather friendless country barking instructions at the likes of China and Russia because we must move briskly on to an even greater silliness – the fact that in the Tory vision of the world the only people who can’t have human rights are the British.

This bizarre position is a legacy of the Brexit wars. In the early pre-Brexit days, the Eurosceptics (as they were then called) made a fuss about the European Convention on Human Rights and the European Court of Human Rights in Strasbourg because they were a useful proxy target in the war against the real Europe, the entirely different EU. That war is now won (ho! ho!) but the proxy war against the European Convention’s domestic incarnation the Human Rights Act continues on a kind of auto-pilot, with no one knowing quite how to stop it.

The brave thing for Mr Raab and his colleagues to do would be to repeal the Human Rights Act entirely and without replacing it, at the same time withdrawing from the Council of Europe and so ditch the European Convention on Human Rights and the authority of the European Court of Human Rights altogether, truly taking back control. Theresa May actually suggested this before the Referendum in 2016, but it is proving too much for even these most red-blooded of Brexiteers.  It would be brave but suicidally bonkers, leaving the UK alone with Belarus outside the Council’s large tent (in which Russia and Turkey are among the 47 states to be found) and thus debilitating sad Brexit Britain’s diplomatic reach even more. It would also incur the wrath of the Americans (what about Northern Ireland’s Good Friday Agreement!) and the EU (to which human rights promises were made during the withdrawal process).

The result of this sensible failure of nerve is a dogs-dinner of a proposal full of grand but fairly empty gestures to please the anti-Europeans and imperial nostalgists who run the country these days, with a few bullying attacks on the weak and vulnerable thrown in just to show off how tough, how hard our leaders truly are.

The gestures first. It is to be a British bill of rights but with the same content as that never-to-be-mentioned Voldemort of documents the European Convention. There will be ‘some mention’ of responsibilities. Britishy things will be added (a qualified (shame!) right to a jury; er is that it?) and the Strasbourg court can be ignored by the UK courts (it can be already) while other countries courts can be referred to in judgments (ditto).  The power to twist things to fit with rights will be modified but probably not removed so the twisting will need to be a bit more carefully done.  The Daily Mail sort of gets its wish to have privacy removed so they can start ruining people’s lives again now Paul Dacre is back in charge but then again maybe it will survive – the government doesn’t plan to remove privacy altogether and anyway it is now weaved into the common law which of course they love so much.

That is it, pretty much. The controls placed by the present Act on public authorities are broadly fine as is the current system of unenforceable declarations of incompatibility which are occasional made against statutes. The institutional restraint shown by the courts is also good (and Lord Reed’s Supreme Court has certainly been making things easy on that score, with yet another decision reining itself in handed down the day after the Consultation Paper was published.  Of course you will find lots wrong with any statute if you resource an independent team to write a 580 page critique of it, as the government did as a prelude to this consultation. Most of the critique in that worthy and dense report belongs at the dreary end of law reform, not the front pages of the right-wing press, however Mr Raab talks his plans up.

In truth the government is hemmed in by facts. Northern Ireland requires the Convention and no end of knit-picking about the difference between that document and the case-law in Strasbourg can get away from this capital fact.  The Convention is likewise baked into the devolution settlements of Scotland and Wales and pulling it and/or its Strasbourg cases out of these frameworks against the wishes of the locals is likely to generate a series of chaotic constitutional wars.   Not following Strasbourg while keeping access to that court open merely returns us to the 1980s and 1990s – constant ill-tempered complaints from the UK about Strasbourg cases to which they invariably acquiesce in the end. The spies at GCHQ noticed this and forced Mr Raab to keep the extra-territoriality of the current law in his new Bill, depriving him of a headline-grabbing ‘the military can infringe human rights abroad’ boast, but thereby avoiding the exposure of our spies and soldiers to public scrutiny in Strasbourg when our courts here in the UK have been proving themselves so very accommodating about secret hearings and secret witnesses and so on.

The bullying is clearer than the grandstanding, aimed at a predictable array of vulnerable people for whom tough lives will be made even tougher. This includes the usual asylum seekers and foreigners fighting deportation but also – bizarrely – children whom the State has been trying to protect from their parents and those (usually baddies the government claims) whom human rights law insists should be told when their lives are at risk.  ‘Enough of this human rights nonsense’ might not be a sufficient answer if a campaign against whatever emerges from the consultation gathers momentum. The Labour leader Keir Starmer is mentioned a number of times in his previous capacity as a human rights expert, and there are odd little anti-wokish sentences now and again which are clearly intended to incite. Labour should relish the fight.   This is one they can win.

 

16 December 2021

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.