Category: International Law

Can the Scottish Parliament block ‘Brexit’?

There has been some suggestion in the days since the EU Referendum, in which a sizable majority of Scottish voters voted to stay while a smaller majority of voters across the UK as a whole voted to leave, that the Scottish Parliament can in some way block the UK’s exit from the European Union.  That suggestion is, in my view, wrong; the Scottish Parliament cannot block the UK’s exit from the European Union.

Since Devolution there has been a convention operating whereby it has been understood that Westminster would not exercise its power as the sovereign and supreme legislative body for the United Kingdom to legislate in an area for which competence over has been devolved to the Scottish Parliament, without first obtaining the consent of the Scottish Parliament.  This convention is known as the Sewel convention.

Following the 2014 referendum on whether Scotland should become an independent country, a Commission was established by the UK Government to look at the Scottish devolution settlement.  That Commission, the Smith Commission, recommended that the Sewel convention was given legislative force.  Section 2 of the Scotland Act 2016 amends Section 28 of the Scotland Act 1998, which confirms in subsection (7) that Westminster can still legislate on areas of devolved competence, to add a subsection (8) which gives effect to that recommendation.  Section 28(8) provides that “it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”

What this means is that Westminster will not normally legislate on a devolved area without first obtaining the consent of the Scottish Parliament.  However, it can still legislate on an area of devolved competence without the consent of the Scottish Parliament (for example, in a time of emergency and where it wouldn’t be practical to obtain the Scottish Parliament’s consent).

What relevance does this have to blocking the UK’s exit from the European Union?  It would appear to me to be of no relevance whatsoever.  Firstly, we are not in a situation where the UK Parliament is going to be legislating.  The UK’s withdrawal from the EU is an exercise by the Executive of the prerogative power to conduct foreign affairs.  The Executive might well seek a vote in the UK Parliament on exercising the prerogative power (in the same way that appears to be becoming convention with the prerogative power to declare war), but that is not a legislative act by the UK Parliament.  Secondly, the United Kingdom’s relationship with the European Union is a specifically reserved matter in Schedule 5 to the Scotland Act 1998.  We are not, therefore, dealing with a devolved matter; we are dealing with a reserved matter.  Section 28(8) of the Scotland Act 1998 only relates to devolved matters.

It might be the case that, when the UK Parliament comes to give legislative effect to whatever relationship the UK is to have with the EU in the future, the Scottish Parliament may be able to invoke Section 28(8) of the Scotland Act 1998.  If that legislation were to affect a devolved area the Scottish Parliament could very well refuse to consent to the legislation; however, that would not necessarily equate to it being blocked.  The UK Parliament might have to rely on the word “normally“ in section 28(8) to legislate anyway so as to give effect to, what will be by then, the UK’s international law obligations.

The Scottish Parliament is still free to debate and vote on any issues that it chooses to do so.  We could therefore see in the coming days or weeks a debate and vote in the Scottish Parliament on whether the Parliament agrees with the UK’s withdrawal from the European Union.  However, it cannot invoke what is now Section 28(8) of the Scotland Act 1998 in relation to this issue.  Moreover, even it if it could invoke Section 28(8) of the Scotland Act 1998, that would not necessarily have the effect of blocking the action it refused to give consent to.

ECHR, international law and Abu Qatada

Last week it was reported that the Home Secretary wanted to take the UK out of the European Convention on Human Rights (ECHR) and this week she repeated that objective, if the Tories won the 2015 election.  Her cabinet colleague Chris Grayling (Secretary of State for Justice and Lord Chancellor) has said that the Tories will repeal the Human Rights Act 1998 (HRA) should they win the 2015 election.  The HRA and ECHR has become the place for politicians (particularly from the right of politics) to lay the blame when they don’t get their own way.  The very point of the HRA and the ECHR though is to prevent the State from acting in a way that is incompatible with basic rights and freedoms recognised as being essential in a free and democratic society.

One of the most recent frustrations of the UK Government is the inability of it to return Abu Qatada to the Kingdom of Jordan where he is wanted on terrorism charges.  Abu Qatada’s fundamental rights applicable to him as a human being have thus far prevented him from being deported from the UK to the Kingdom of Jordan (although the Special Immigration Appeals Commission prevented his extradition on the basis of his right to a fair trial over fears evidence obtained through torture would be used in his trial).  However, the ECHR is not the only prohibition in relation to torture.

There is an internationally recognised prohibition on torture.  This prohibition has achieved jus cogens status.  Jus cogens is a fundamental principle of international law which is accepted by the international community as a norm from which no derogation is ever permitted.  In other words, there are no circumstance under international law in which it is permissible to torture an individual; even someone who is as odious as Abu Qatada is alleged to be.  The International Criminal Tribunal for the Former Yugoslavia recognised the prohibition of torture as having achieved jus cogens status in international law in its decision in Prosecutor v Furundzija (see paragraph 153).  This means that the UK is bound by international law not to torture anyone.  Of course, it never was the case that the United Kingdom had or was going to itself torture Abu Qatada; however, that brings us onto another principle of international law: non-refoulement.

Non-refoulement is a principle of customary international law.  Customary international law arises from custom; which is an established pattern of action or behaviour that can be objectively verified.  In the international context it refers to the legal norms that have developed through the customary exchanges between states over time.  It is considered by the International Court of Justice (ICJ) and the United Nations as one of the primary sources of international law.

Non-refoulement as a principle is concerned with prohibiting the sending of one individual from one State to another where they will be tortured or face serious irreparable harm.

The principle of non-refoulement is primarily concerned with the area of international law covering refugees.  The 1951 Convention on the Status of Refugees specifically prohibits non-refoulement in Article 33.  However, it has been included in other international treaties such as the United Nations Convention against Torture or other cruel, inhuman or degrading treatment or punishment (CAT).  Article 3 of CAT clearly prohibits the expulsion, return or extradition of a person to another state “where there are substantial grounds for believing that he would be in danger of being subjected to torture”.  The United Kingdom signed CAT on 15 March 1985 and ratified it on 8 December 1988.  There is an argument to be made that non-refoulement is at the very least customary international law if not jus cogens.  However, the UK is bound by its obligations under CAT even if it were not considered to be customary international law or jus cogens.

Essentially, with or without the ECHR the United Kingdom would have been bound by international law not to extradite Abu Qatada to the Kingdom of Jordan while there were substantial grounds for believeing that he would have been tortured.  Without the ECHR though there would have been no effective remedy for Abu Qatada to force the United Kingdom to adhere to its international obligations.  That is because the United kingdom is not signatory to the first Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR; which also prohibits torture and non-refoulement) thereby preventing him (or indeed anyone else) from pursuing a case before the Human Rights Committee (the body responsible for the interpretation and enforcement of the ICCPR).  The UK does not accept the right of individuals to petition the Committee against Torture (responsible for CAT) under Article 22 of CAT.  The ICJ is only for disputes between states and an individual is therefore unable to pursue a claim before that Court against a State.  Without the HRA Abu Qatada (or indeed anybody else) would be unable to pursue human rights claims before the UK Courts.  In other words, the United Kingdom would be free to act against its clear international obligations.

What is the point of all of this?

The main point is to illustrate that the ECHR is not some unusual document in what it does.  There is a substantial body of international law protecting the human rights of individuals.  The United Kingdom is under an international obligation not to torture an individual and also not to expel, extradite or return an individual to a state where they are likely to be tortured (or face irreparable harm).  With or without the ECHR the UK would have faced enormous international pressure not to transfer Abu Qatada to the Kingdom of Jordan while there was a substantial risk of him being tortured by the Jordanian authorities.

The international law exists to protect individuals; especially individuals, like Abu Qatada, who are at substantial risk of torture because of their activities.  Domestically we have the HRA incorporating elements of the ECHR into our law.  It’s not perfect and there is a lot more that could have been included into the HRA to make it a fuller human rights document.  However, it is a substantially good thing and it largely reflects the position in international law.

The Tories simply want to leave the ECHR to avoid situations like Abu Qatatda; in essence to decide just who human rights apply to and who they don’t apply to.  It’s not about reclaiming British sovereignty, but rather about trying to create a situation where they can breach international law with little or no international intervention to prevent it from happening (i.e. being able to do exactly what they want when they want).

Leaving the ECHR would almost certainly increase the pressure on the UK to adopt optional protocol 1 to the ICCPR or permit individuals to refer matters to the Committee against Torture under Article 22 of CAT.  If the UK left the ECHR and did not undertake one of the two options just mentioned it would become one of very few states with no substantial international oversight of the way it treats those within its jurisdiction and that would be an unfortunate position to be in.

Julian Assange

The latest twist in the Julian Assange saga has presented with it some interesting legal and diplomatic questions.  In June Assange walked into Ecuador’s embassy in central London seeking political asylum on the grounds that as a result of the decision to extradite him to Sweden he feared he would be further extradited to the United States of America where his human rights would be infringed.

I am no expert in International law and there are people far more learned than I in these matters who have commented.  I have linked to some of their writings and other commentary at the end of this blog post.  There are serious issues at play in this case and I thought I would put my two-penneth in.

This whole saga started in October 2010 when the Swedish authorities issued a European Arrest Warrant (EAW) for Mr Assange.  EAWs are a way of ensuring the co-operation between member states of the European Union.  When the Swedish authorities issued the EAW, Assange was living in the UK and had been for no more than a couple of months.  There had been appeals against the EAW in Sweden and it was in December 2010 that Assange was informed by the Metropolitan Police Service that a valid EAW had been received.   Mr Assange then sought to challenge his extradition to Sweden in the English Courts and took his case all the way to the Supreme Court of the United Kingdom which held against him.  A number of important decisions were taken in these cases including that the offence for which he is sought is the equivalent to the offence of Rape in English law (something which some Assange supporters, even today, state is not the case) and that the under criminal procedure in Sweden the case against Mr Assange had reached a point that would be the equivalent of having been charged in English law.

One of the difficulties with any extradition proceedings is that each legal system is different and one cannot simply compare the system in the country seeking extradition to the system here in the UK.  Indeed, there is no uniform process of criminal procedure in the United Kingdom.  The UK courts have looked at the Swedish and English systems and decided that if Mr Assange was facing these allegations in England he would likely have been charged by this point.  This is important because Article 1 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (“the Framework Decision”) states that an EAW can only be issued “for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.”  In order to charge Mr Assange with any offence (within the meaning of Swedish and not English law) the Swedish authorities require to conduct a further period of questioning.  Mr Assange and his supporters have tried to use this in order to challenge the validity of the EAW.  However, as noted above the UK courts have found that the Swedish authorities are seeking him for the purposes of conducting a criminal prosecution and not merely to question him in relation to an allegation.

I don’t propose to say much else on the history of this case as it is really history now and much has already been written on it by others.  However, I do propose to consider the developments of the last few days and also some of the wider implications.

I first of all wish to state clearly that I am in favour of Mr Assange going to Sweden to face these allegations.  They remain only allegations at this stage and Mr Assange is afforded the presumption of innocence.  I make no comment on his guilt or innocence in relation to these allegations.  However, they are extremely serious allegations and the women who have made them have rights as well.  They have the right provide their version of events in court and to have the Swedish judicial system consider the evidence against Mr Assange and determine whether he has committed a criminal offence contrary to the law of Sweden.  He may be guilty and he may be innocent.  The only way in which that can be determined is for Mr Assange to face the Swedish judicial system.  If his supporters believe him to be innocent then they should be encouraging him to go to Sweden and prove that fact so as to ensure his name is cleared of these terrible allegations.  In my view, any right-minded and sensible individual should be in favour of Mr Assange going to Sweden to answer these allegations.

There has been some suggestion that Mr Assange could be further extradited to the United States of America where he may be tortured or face the death penalty.  Neither the UK nor Sweden will extradite a person to a country where they will face torture or the death penalty.  The European Convention on Human Rights (ECHR) will simply not allow it and any attempt to extradite Mr Assange to the USA without sufficient assurances that he will not be tortured and that he will not face the death penalty will likely lead to a sufficient challenge before the European Court of Human Rights (ECtHR) in Strasbourg.  Both the UK and Sweden are signatories to the ECHR and under the Framework Directive Sweden would need the consent of the UK before extraditing Mr Assange to the United States of America (Article 28, paragraph 4).  This means that the assurances given by the United States would need to satisfy both Sweden and the United Kingdom that Mr Assange will not be tortured and will not face the death penalty.  Of course the Home Secretary might be minded to give such consent were it sought; it would not prejudice Mr Assange’s right to recourse to the ECtHR.

Earlier this week the Foreign Minister of Ecuador announced that the Government of Ecuador was offering Mr Assange political asylum.  This caused outrange amongst the British and Swedish Governments who strongly criticised the decision.  The evening before the decision on Mr Assange’s application for Asylum was announced the British Government sent what has been considered to be quite a threatening letter to the Government of Ecuador.  It is recognised in International Law that premises used as Diplomatic or Consular premises are sovereign territory of the country using them.  This means that, while still in the UK, the United Kingdom cannot enter the premises to arrest Julian Assange without the permission of Ecuador’s Government.  To do so would be similar to English police officers travelling to Ecuador and removing a person from the country and brining them back to the UK.  They would not normally have jurisdiction to do that, unless Ecuador’s Government had so agreed to them having such jurisdiction.

The latter reminded Ecuador that under English law the UK Government could cease to recognise Ecuador’s premises by virtue of the Diplomatic and Consular Premises Act 1987 (“the 1987 Act”).  The 1987 Act is an interesting one and it wasn’t really enacted with cases like Mr Assange’s in mind.  As Carl Gardner stated in a comment on his blog post in relation to this issue (see links below for article), one of the principle considerations behind the 1987 Act was where diplomatic premises were being misused.  A Minister for State in the Foreign and Commonwealth Office (FCO) at the time, Baroness Young, use the example of where diplomatic premises were being used for terrorist purposes.

The Embassy of Ecuador is being used for the purposes of its mission.  I would find it hard to accept that granting asylum to a person and keeping that person there when the UK did not agree with that decision would be a sufficient reason for de-recognising the current premises used by Ecuador as its embassy.  In any event, removing diplomatic status of Ecuador’s embassy in London would open the way for Ecuador and its allies to retaliate and take action against our own diplomatic premises.  This, I would suggest, is not really a viable option and would be a severe abuse of the legislation.  Quite why the UK put such a “reminder” into a letter is something that can only be speculated upon.  It could have been a blunder, it could have been part of a diplomatic strategy or it could even have been part of an elaborate plan that has been negotiated between the three nations and Mr Assange.

Storming the Embassy is not really an option either.  It’s not been openly suggested by the UK Government, but some on the internet have suggested that the UK Government might just send the British Police (or even the SAS) into the embassy and drag Mr Assange out.  Such a move would be deeply disturbing and would no doubt be considered as an act of aggression towards it by Ecuador.  Again, such a move would put the UK’s diplomatic premises in Ecuador and other nations at risk and would set a dangerous precedent which is clearly contrary to the settled international custom on diplomatic premises.

The outcome of this case is likely to be rather dull than any of this.  It’s not likely to result in Judicial reviews in the UK Courts as the UK tries to use the 1897 Act; it’s not likely to result in a case of Ecuador v the United Kingdom before the International Court of Justice and it’s most certainly not going to result in a raid upon a foreign embassy in London.  What, in my view, is more likely to happen is that deal will be struck which will allow Mr Assange to either hand himself over to UK authorities or to make his way to Sweden and into the hands of the Swedish authorities.  It’s going to be impossible for Mr Assange to get out of the UK to Ecuador and there are real practical issues about him remaining in Ecuador’s embassy for the rest of the days (not least given the small size of Ecuador’s embassy in London).

In essence, Mr Assange should go to Sweden and answer the extremely serious allegations made against him.  He is probably more protected against extradition to the USA by being in Sweden than remaining in the UK.  By going to Ecuador’s embassy he has managed to create a diplomatic nightmare involving at least three countries.  The conclusion to this long-running saga might be some way off, but it will certainly not involve storming diplomatic premises and will unlikely involve stripping diplomatic premises of their diplomatic status.  Although, with Mr Assange anything is possible!

 

LINKS
The Council Framework Decision (pdf)
Extradition Act 2003
Diplomatic and Consular Premises Act 1987
Assange v Swedish Prosecution Authority (High Court of England and Wales judgment)
Assange v Swedish Prosecution Authority (Supreme Court judgment) (pdf)
Wikipedia Article on the European Arrest Warrant
Julian Assange: can the UK withdraw diplomatic status from the Ecuadorian embassy? (Carl Gardner)
Assange, Asylum and Immunity (Charles Crawford)
Julian Assange: can he get out of this? (Carl Gardner)
Will the Ecuadorian embassy be stormed? (David Allen Green)
The desperation of Julian Assange (David Allen Green)
Assange and the Supreme Court decision (David Allen Green)
Assange (@PME200)

The issue of Prisoners’ votes

Today in the House of Commons Members of Parliament overwhelmingly voted against extending the franchise to persons in prison having been convicted of criminal offences.  The decisions of the European Court of Human Rights (ECtHR) in the case of Hirst v The United Kingdom ([2005] ECHR 681) has effectively been ignored until now.  The matter which it raises has been a thorny one for politicians as it will not go down well with the vast majority of the general public.

The ECtHR did not decide in Hirst that all prisoners should be given the right to vote and indeed it was very clear from its judgment that this was not the practical implication of its decision.  What it has decided is that the automatic removal of a person’s right to vote upon being sent to prison having been convicted of a criminal offence is unlawful in terms of the European Convention.  I dealt with a the relationship between the United Kingdom and the Convention and its institutions in a blog post yesterday evening and so do not intend to deal with those points in great detail here (though they are intrinsically linked in respects of the arguments put forward by opponents of prisoner suffrage).

While watching the debate in the chamber today through the BBC website I heard many arguments against the move and as is always the case some were more convincing than others.  One MP argued that those who fought for the vote to be extended beyond male land owners would not have considered voting as a right but rather a privilege.  This was one of the less convincing arguments that I heard during the debate.  I was left wondering if I was the only person who understood the point of their fight for the vote being based on the principle that it was a right and not a privilege!

As I said above I am of the opinion that in some cases it is appropriate to remove the franchise from some people while they are in prison as part of their punishment.  I have given some thought as to how I would approach this issue if I were a member of the Government and settled on the following (which I believe would comply with the judgment in Hirst):

1. All prisoners sentenced to 12 months in prison or less will retain their right to vote in all cases.  12 months is not an arbitrary figure that I magically pulled out of a hat, but it is based on the law as it currently stands in relation to those who can hold a seat in Westminster.  Currently anyone sent to prison for 12 months or less can seek to be elected to Parliament and continue to hold their seat while in prison.

2.  All prisoners sentenced to 12 months, but less than 4 years will lose their right to vote, unless otherwise ordered by the court

3.  Where it is likely that an individual is going to be sentenced to a period of custody in excess of 12 months but less than 4 years may make an application before sentencing to not have their right to vote suspended.  The court would consider as part of the sentencing process whether the individual should be permitted to retain the vote based on a set of guidelines issued by the Sentencing Council or the Supreme Court.

4.  In cases where the individual is sentenced to a term of imprisonment of more than 4 years the question of their ability to vote could be considered by the Parole Board as part of their wider duties applying the same guidelines discussed in point 3 above.  Prisoners would have to make an application to the parole board for this to be considered when making their application for parole.

Voting by prisoners would be conducted by way of postal vote and would be for the constituency in which their last known address was.  In cases where they had no last known address their vote would be cast in the constituency where their parents currently reside.  Where no parent remains alive, or where the parents are no longer in the United Kingdom it would be based upon the town in which their birth was registered.  Where none of the criteria are met their constituency would be the one in which the court they were sentenced falls.

This would ensure that no one constituency is overly affected by prisoners voting and indeed that no one Member of Parliament is overly burdened by prisoners to the detriment of his or her other constituents.

As was pointed out in the chamber by some MPs today the United Kingdom cannot simply pick and choose which decisions of the ECtHR it follows.  Courts make decisions which are unpopular with one party to the case before them; it is a consequence of their function.  They are being asked to adjudicate between two parties who disagree with each other; this means that at least one party will not be happy with the outcome of the case.  The United Kingdom agreed to have the ECtHR make judgments on matters relating to the European Convention on Human Rights and as such gave up part of its sovereignty when it did so.  The giving up of sovereignty is part of the function of International Law.  To allow a pick ‘n’ mix approach to judgments of the ECtHR undermines its authority and makes the convention a meaningless statement of intent.

Regardless of the Parliament’s decision in the vote today it is going to have to pass legislation that changes the law as it stands and it should do so having taken part in a reasoned debate that looks at more complex options, such as the one described above, to resolve the matter.

Should the UK withdraw from the ECHR?

Many times before on this Blog I have considered the Human Rights Act 1998 (HRA), the Convention upon which it is based, the United Kingdom’s relationship with that Convention and its institutions.  In a week where we hear arguments proposing that the United Kingdom should withdraw from the European Convention on Human Rights and Fundamental Freedoms 1950 (ECHR) I find myself once again giving thought to the situation and how we might have arrived here.

In the past I have largely been critical of the media and its selective or in some cases its misreporting of cases relating to Human Rights issues.  Generally I have been of the opinion that this is somewhat a deliberate act by certain sections of the popular press, but have been given cause to reconsider this position.  I had a discussion with a news agency recently regarding an article they had written in which they specifically blamed the European Union for a Human Rights matter.  What I discovered was, what appeared to be, genuine ignorance of the fact that the ECHR is entirely separate from the European Union and not only that but ignorance of the Council of Europe.  Whether this was a genuine ignorance or a pretend ignorance is something I would not wish to speculate on.  Furthermore, I would not wish to speculate as to whether any genuine ignorance in this case is something that is widespread across the various media companies within the United Kingdom.

The ECHR was drafted following the atrocities that were seen within the Nazi regime that had spread across a significant section of Europe.  It was drafted out of a desire to never again allow such atrocities to take place.  It was an important treaty at the time and its importance is equally as great, if not more so, today.  It guarantees the citizens of the 47 Nations who have signed the treaty fundamental rights and freedoms.  The rights contained within are ones that most people would consider to be fundamental: the right to life, the right to be free from torture, the right to a fair trial, freedom of expression and such like.  They are rights and freedoms which anyone in a western democracy would consider as being essential elements of a democracy in the sense that without them there would not be democracy.

A treaty is a powerful statement of intentions by a State.  When signing up to such a treaty it sends out a message from the state to its citizens and other nations around the world.  It clearly illustrates the basic values and principles which that State believe in.  However, a treaty is nothing other than a statement.  Without an institution by which member states can be held accountable it lacks a bite.  This was the feeling at the time and resulted in the birth of the European Court of Human Rights (ECtHR).  Without such an institution the treaty is almost meaningless, but through the ECtHR the citizens of all 47 member states have a right of recourse to hold their Government accountable to the promises they have made by being signatories to the treaty.

Simply having an institution in place where arguments can be made and judgments pronounced is not enough.  That institution must have the ability to enforce the decisions it has made.  The Court is an unelected body and that gives it an independence and freedom that national Governments and Parliaments simply do not.  The United Kingdom has voluntarily agreed to submit to the jurisdiction of the ECtHR and as a result has to apply judgments made in relation to cases against it and take note of other judgments that may impact upon the UK Government’s policy.  If the Government was simply able to ignore the judgments it did not agree with then the institution would be entirely useless and result in the situation of a country signing up to a meaningless document.

The United Kingdom is an international proponent for Human Rights and advocates less democratic states to adopt many of the ideals set out within the ECHR.  The United Kingdom, along with others, has been very vocal about Human Rights abuses in countries such as North Korea, Iraq, China and Saudi Arabia.  To pull out of such a prominent international treaty on Human Rights while advocating the adoption of the very ideals set out in that convention by other countries would seem odd, not to mention the diplomatic headache it would create.  The United Kingdom would come under pressure from its European allies, all of whom are signatories to the ECHR.  However, these reasons are not the ones that we should be focusing on when defending our membership of the institution that is the ECtHR and being a signatory to the ECHR.

When defending the ECHR it must be remembered exactly where its roots lie, not one of us in this country is ignorant of the horrors of the Nazi regime in the 1930s and 1940s.  The Holocaust is taught to every single pupil to some degree in our schools prior to their leaving.  The atrocities perpetrated by the Nazi regime lead by Adolf Hitler and uncovered in the post war period and trials at Nuremberg shocked to the core those who had not experienced it.  The stories from those who lived in those areas and experienced the terror are truly shocking and hearing them should make anyone with any human decency want to do all they can to prevent such atrocities happening again.  It is here where we find the routes of the ECHR.

In the United Kingdom we have suffered the largest assault on our civil liberties and fundamental democratic rights and freedoms since the Second World War.  The rights and freedoms contained within the ECHR and enshrined into domestic law by the HRA are the very the UK went to war in 1939 to protect. It is important that we are not cavalier in the way we treat and view these rights and freedoms.

It would be possible to withdraw from the ECHR and have our own domestic legislation setting out what our rights and freedoms are.  However, there is a significant problem in this.  Currently, if the Government is defeated in the Supreme Court on a Human Rights issue it has no real choice other than to carefully consider the legislation in question and seek to pass an alternative.  Without the International element to Human Rights the United Kingdom’s constitutional arrangement would mean that there is nothing at all to prevent the Government simply ignoring the fundamental freedoms and rights guaranteed.  It is always open to the United Kingdom to withdraw from the ECHR and go down this route, but the accountability comes not only from the ECtHR, but the United Kingdom’s allies.  The diplomatic situation that would be created by withdrawing from the ECHR is one that no Government would want to face, especially one such as the United Kingdom which is so very loud on matters of Human Rights in relation to other countries.  It is these combined factors that keep not only the United Kingdom accountable, but the other nations who have signed up to this treaty.  It is the combined force of the other member states and the ECtHR that helps to ensure that a situation similar to that seen develop pre 1945 from happening again.

Not one international treaty is without some form of institution monitoring compliance.  Some of these institutions comprise unelected officials (e.g. The European Court of Justice, The European Court of Human Rights and The International Criminal Court) while others comprise elected officials from the member states (e.g. The United Nations Security Council and elements of the European Union) and some are directly elected by the people within the member states (e.g. The European Parliament).  The nature of the institution dictates the form it must take. For example, a court which is to consider disputes between a State and its citizens should not be one made of political appointees or officials elected by the citizens. Such an institution has to maintain its independence from the parties who will be appearing before it if it has to have any credibility.

The role in which the media plays in informing the public and by extension forming public opinion is one that I have covered on a number of occasions before on this blog and so I do not intend to discuss it in this blog post, partly because I would simply be repeating myself and partly because this is already a rather lengthy blog post.  I will however say this: the European Convention protects each and every individual within the 47 member states who have signed it, it can and is utilised by ordinary people out with the context of criminal matters.  It is not and never has been a document protecting criminals and the decisions made based on the ECHR affect every single person in the United Kingdom in some way.  The protections won in previous cases are available to anyone who should ever need them.

Should the UK withdraw from the ECHR?  The simple answer is No.  The ECHR and the ECtHR are essential elements of our lives, our judicial system and our politics.  Their existence is essential, along with the collective responsibility of the member states, to ensuring a repeat of the terror experienced across much of Europe in the 1930s and 1940s does not occur again.

Jon Venables

The big story hitting the headlines here is the recall to custody of Jon Venables.  At the age of 10 Jon Venables, along with his friend Robert Thompson, abducted and murdered James Bulger.  James Bulger was just two at the time he was killed.

In 2001, at aged 18, Jon Venables was released from Prison on licence.  He was given a brand new identity to protect him from vigilantism.  As you can imagine, the public’s hatred towards Venables was great at the time of the murder and has not really subsided much.

Venables has been recalled to custody and the mother of James Bulger and the wider public are demanding to know why Venables has been recalled to custody.  However, the Government have refused to release any information other than that Venables has been recalled due to serious allegations.

There are several reasons given by the Government as to why they are not releasing the reasons behind Venables’ recall to custody, all of which I whole heartedly agree with.  Venables’ new identity is still secret, as far as we know.  However, it has been suggested that an investigation was underway as to whether this was the case or not.  It costs the public an enormous amount of money to create a new identity for someone.  Assuming Venables is found guilty is it likely that he will be released from prison again and allowing Venables’ identity to be known will mean that, should it be decided he is still at significant risk of vigilantism, a further identity will need to be created – at the tax payers cost.  Now, as abhorrent as his crime was, he is entitled to face the same due process as everyone else and for the state to ensure his safety.  We cannot have a situation where people are allowed to administer their own kind of “justice”.  Further to this, Venables still has to be charged and then prosecuted for these offences.  It is imperative to ensure the integrity of the justice system is upheld that nothing prejudices the jury in any future trial.  The knowledge that they are looking at the person who killed James Bulger might prejudice them and impair the ability for the court to ensure that Venables has a fair trial – a right afforded to him under UK and Intentional Law.  Simply because he has been convicted of a heinous crime in the past does not mean that his rights are no longer valid.  Human Rights are universal and only are rights if they are universal.

It is also in the interest of the public to ensure that he has a fair trial.  Any hint of there not having been a fair trial could mean that any resulting conviction be deemed unsafe.  The effect of this would mean that Venables does not face justice for any crimes that he may have committed resulting in his recall to custody.   Also, any families affected by Venables’ alleged crimes would not see justice as having been done.

These are of course reasons as to why the public should not have the information released to them.  Why, then should the family of James Bulger not have this information released to them?  Well, quite simple really:  the more people who know, the more likely it is to make it into the public domain.

China’s Penal System

At approximately 02:30 (UK time) on Tuesday 29 December 2009 China executed a British Citizen convicted of smuggling 4kg of Heroin into China.  It is a widely known fact that China executes for drugs offences and as little as 50g of Heroin in your possession is enough to see you executed.  There has been a lot of media attention surrounding this case and the British Government have made an astonishing number of approaches to China and its officials here in the UK over this case.

There are a number of main issues surrounding this case, but all are linked by one common theme:  Mr Shaikh’s alleged Mental Illness.  This post is likely to turn into (in fact it is intended to turn into) a complete condemnation of China over its penal system and record on Human Rights.

Mr Shaikh reportedly suffered from Bipolar Disorder and delusional psychosis.   The charity Reprieve have come out and said that a Consultant psychologist’s report had made such a diagnosis.  Whether this report had been seen by a Court in China or had been passed to authorities in China we will probably never know given how secretive the Chinese are over their penal system – especially where the death penalty is involved.  Even had this report not been seen there was certainly enough evidence provided by Mr Sheikh’s family and the British Government for Chinese authorities to have conducted their own psychiatric examination of Mr Sheikh – indeed where no formal diagnosis has been made, but questions surrounding a person’s mental state in a criminal trial are raised this would be standard in pretty much every civilised country in the world.

It is also widely reported that the Chinese Government has great involvement in its judicial system with reports suggesting that decisions are frequently reached over a persons guilt before the trial has even began.  People have been executed in China following trials lasting half a day or less.

China is a signatory to many human rights treaties and blatantly ignores the obligations it has placed upon itself by signing these treaties.

China executes more people than the rest of the world combined and has the death penalty attached to at least 68 crimes including economic and other non-violent related crimes.

The exact number of people executed in China is not known due to its secrecy surrounding executions, in contravention of both its own domestic law and the obligations it has as part of being a member of the UN.  China is a committee member of the United Nation’s Economic and Social Committee and is a signatory to treaties which place an obligation upon China to publish full and frank information on the use of the Death Penalty and executions as well as banning the execution of those who are suffering from mental retardation or extremely limited mental competence, whether at the stage of sentence or execution.  China’s own criminal law require sit to publicly publish all executions (Article 212(5) of the 1996 Criminal Procedure Law of the People’s Republic of China) – this is something we know it does not.

The People’s Republic of China, whether we like it or not, is part of the International Community.  It is too big and economically advanced for us to ignore this, but the rest of the International Community, as a whole, must place pressure on China to start living up to its obligations under International Law to which it is a signatory.

China is known to use torture as part of its penal system and uses evidence extracted under torture at court and frequently people are found guilty and executed on evidence extracted under torture.  Such evidence is internationally regarded as unsafe and problematic for a number of reasons.

China is a central part of an international community and law making body and does not itself abide by the rules laid out within that community.  No country within that system is perfect and all breach parts of the Law, what makes China so different is its blatant disregard for treaties which it has voluntarily signed up to and accepted the obligations that signing that treaty place upon it.

While China is moving towards the use of the Lethal Injection as its method of execution (a method widely seen as a humane form of execution, but causes many problems in the USA) the most commonly used method of execution is death by a single gunshot to the back of the head from close range – families of condemned prisoners are often forced to pay for the bullet used to execute their loved ones themselves.

Lawyers in China have reported to the International Media that it is impossible to defend s person on a Capital charge in China and that almost 100% of those tried are convicted.  Having a near 100% conviction rate would normally be something to be pleased about, but looking at it in China it is deeply worrisome.  The fact that it is impossible to determine that each person convicted has been tried fairly means that we can have little or no confidence in China’s justice system.

Those accused of crimes in China often get no immediate access to legal representation, which places them at a significant disadvantage.

There is evidence of China’s courts convicting and upholding death sentences of evidence which has clearly and knowingly been fabricated and there are people whose convictions and sentences been overturned a number of times sitting on Death Row or have been executed after being convicted again and again and again on the same fabricated evidence.

Following revelations a few years ago on China’s booming organ transplantation services one does wonder how many executions are driven purely by the need for organs.   Personally I’d probably rather die than have an organ transplanted into me from a person executed in a system like China’s.

How can anyone have confidence in a justice system which is so obviously devoid of internationally accepted minimum standards on justice?  The answer is that one cannot.  Any country that has such a system and tries as hard as it can to

This blog entry has become rather lengthy and I don’t want to go on much longer.  All I really want to say is that I am disgusted (but not surprised) by the way China has handled this case.

Human Rights

Those of you who read my blog on a regular basis are probably, one would imagine, fed up with my topics on Human Rights, Fundamental Freedoms and Civil Liberties.  I can’t seem to stop writing about it though.  If I do decide to continue pursuing law as a career I’m looking at doing an LLM in Human Rights (now, there’s a surprise…not).  They are fundamental to our lives and without them we would live in a very different place.  It annoys me when people just seem to sit back and not care enough to fight for their protection!

I was reading The Student Law Review (Summer 2009 edition, Volume 57) and came across a number of article concerning Human Rights and it has lead me once again to blog on the matter.

Graham Arnold (a Barrister at Farringdon Chambers) wrote some very interesting things on the subject in an article entitled “Time for change:  Human rights and counter terrorism policies”.  He writes about a report called “Assessing Damage, Urging Action” which was prepared by the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights.  He wrote:

The panel points out that the framework on international law is being seriously undermined by states reneging on their treaty or customary law obligations.  Of particular concern is the fact that the erosion of such principles is being led by liberal democratic states with long histories of developing and protecting such principles.

This is an observation that I have made many times before.  Countries such as the United States of America and the United Kingdom have been blatantly failing in their obligations with regards to Human Rights.  In the United States we have seen, inter alia, The Patriot Act, Guantanamo Bay, military tribunals instead of criminal trials for those suspected of terrorism and extra-judicial rendition.  While in the United Kingdom we have seen, inter alia, the introduction of Biometric ID cards, control orders and increased pre-charge detention for terror suspects.  At the same time these countries have been parading round the world trying to impress upon other nations the need for them to observe human rights – such hypocrisy.

Mr Arnold continues:

The panel concludes that many states have fallen into a trap set by the terrorists.  Ignoring lessons from the past, some states have allowed themselves to be rushed into hasty responses, introducing an array of measures which are undermining the international legal framework carefully developed since World War II.

Again, this is another observation that I have made on numerous occasions.  The terrorists openly declare that they want to destroy our way of life.  Our rights and our freedoms are part of our way of life.  People died fighting to protect them, and 60 years later they are being desecrated by Governments under the guise of counter terrorism.  All the national governments are doing is making the population less safe and allowing the terrorists to win.  When will they see that their responses are meeting the aims of the terrorists?

Mr Arnold continues:

The panel notes that there has been a rash of ill and broadly defined anti-terrorism measures which have encroached upon fundamental rights in an unprecedented way.  Such measures have frequently interfered with the rights of genuinely innocent people in a way that would not otherwise have been possible.

I’ve never made this point expressly, but it has been implicate in my many blog entries on the matter.  The measures which are passed through parliament are done so in such a rush that proper scrutiny is not given to them.  All this ends up with is a heap of bad law on the statute books which is badly defined and so wide in its application that it could be applied to the granny going to buy her messages from the supermarket.  Mr Arnold recalls the case of Walter Wolfgang.  He was, of course, the man who was detained under s.44 of the Terrorism Act 2000 after heckling the then Foreign Secretary, Jack Straw MP, during a speech at the Labour Party conference in 2005.

In his article, Mr Arnold writes:

The panel also warns of the risk of seepage of special laws into normal legal procedures and practices.  Extraordinary measures to address terrorism, such as reliance on secret information that is difficult to challenge, are already seeping into the normal functioning of the state and the ordinary justice system, with long-term consequences for the rule of law and respect for human rights.

We have already seen this.  I remember a case where a local authority used powers under the Regulation of Investigatory Powers Act 2000 to track a family to ensure that they were indeed living in a school catchment area.  RIPA was designed to assist the security services in the collection of evidence in their work (i.e. national security and counter terrorism).

Another article contained within the Student Law Review, this time written by Helen Fenwick (Professor of Law, Human Rights Centre, University of Durham) entitled “The breach of the peace doctrine and public protest”.  I’m not going to spend too much time writing about this article as the first one mentioned was my main impetus for this blog entry.  However, it was a very interesting read and made very points on the cases mentioned.

A final article on Human Rights was on the UK Government’s slow reaction to decisions of the European Court of Human Rights (ECtHR).  It used the example of Hirst v United Kingdom (No2) to illustrate this point.

Hirst v United Kingdom (No2) was, of course, the case that challenged the blanket ban on convicted prisoners from voting contained within s.3(1) of the Representation of the People Act 1983.  The challange was based on the reasoning that it was disproportionate and indiscriminate and therefore was not in compliance with the European Convention on Human Rights and Fundamental Freedoms (ECHR).  The argument was accepted by the ECtHR, but as yet the position remains unchanged.  Right at the end of the article it makes, what I think is, a very good point.  It says:

The government’s response to the decision in Hirst casts doubt on its commitment to human rights for all and the provision of effective legal redress for those whose rights have been found to have been violated by the independent courts.  Specifically it is inconsistent with a recent UN report which suggests that the domestic law in this area may be in breach of the UN Covenant on Civil and Political Rights 1966, and unless the consolation and legislative process is carried out soon the next general election is in danger of being held in breach of the European Convention.  More generally, it shows that a swift and genuine response to judicial pronouncements is essential to the effective protection of human rights. (“Reacting slowly to human rights judgements; the government’s response to the prisoner’s right to vote”, Steve Foster PhD, Student Law Review, Volume 57, 2009)

I have absolutely no comment to make on that extract.

Uganda: Child charged with Treason

On 6 May 2002 Uganda acceded to the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. This protocol prohibits the forced recruitment of anyone under age 18 or their use in hostilities by both governmental and nongovernmental armed groups. Under the protocol, the government of Uganda is obliged to provide former child soldiers with assistance for their physical and psychological recovery and their social reintegration.

Yesterday, 6 January 2009, Human Rights Watch (HRW) sent a latter to the Ugandan Minister of Justice urging him to drop charges of treason against Bushobozi Irumba. Bushobozi was abducted in 2000 at the age of 9 by the Allied Democratic Front (ADF) rebel forces. Bushobozi was arrested at the age of 15 during combat, where he was wounded and subsequently spent a year in a military hospital.

Georgette Gagnon, Africa director at Human Rights Watch said:

“The Ugandan government has a great opportunity to show its commitment to the rehabilitation of a child abducted into rebel military service…Bushobozi Irumba was a child when abducted and a child when captured, and his treatment should reflect that.”

HRW has also expressed concern over Uganda’s non compliance with international juvenile justice standards throughout Bushobozi’s lengthy detention. These standards are there to ensure that children are treated in a way which takes account of their unique vulnerability, capacity for rehabilitation, and lower degree of culpability.

The dropping of the charges would be consistent with Uganda’s obligations under the Optional protocol. In April 2003 Uganda dropped similar charges against two boys, ages 14 and 16, who were abducted by Lord’s Resistance Army.

This is a good move by HRW. Independent states should of course remain independent and just because HRW has decided to get involved Uganda should not just drop the charges on that basis. They should drop them on the basis that it is the right and just thing to do.

Children are vulnerable and when abducted and forced into the situation where they become child soldiers they need to be treated with the utmost care and consideration. A 9 year-old cannot for themselves make the decision to join a rebel force and over-throw the Government, that is far to complex for a 9 year-old to understand in itself, let alone what the consequences of such an action would be. Prosecuting them for Treason is not the best way to help them…psychological help to overcome the traumas that they will have witnessed is what they need, not to be dragged through the legal system for a capital crime.

I’m all for the rule of law, but the law has to have a face and it has to take account of genuine vulnerabilities and account of the circumstances in which a crime took place. Do you really think that a 9 year old could get involved in something like this without adult coercion? Who are the real criminals here: Bushobozi and those like him or those who abducted him and set him to fight?

Rwanda genocide mastermind jailed

Following his trial and conviction at UN Tribunal Theoneste Bagosora has been sentenced to life imprisonment. Bagosora was convicted of instigating Rwanda’s 1994 genocide.

Bagosora led a committee that plotted the massacre of ethnic Tutsis and moderate Hutus.

It is the first time the Rwanda tribunal has convicted anyone of organising the killings.

The genocide in Rwanda claimed the lives of more than 800,000 people.

Along with Bagosora, former military commanders Anatole Nsegiyumva and Alloys Ntabakuze were also found guilty of genocide, crimes against humanity and war crimes, and given life sentences.

The defence lodged by Bagosora and his co-defendants was that the killings were not organised and therefore did not amount to genocide. This defence was rejected by the International Criminal Tribunal for Rwanda (ICTR), based in Tanzania.

Bagosora is expected to appeal against the guilty verdict.