Confession of a human rights activist: the right to vote and the EU referendum

I’ve been on a personal journey. My best analogy is that it feels a little like the 7am train from York to London King’s Cross: whilst it’s a personal journey, it’s absolutely being shared by a lot of other people. I’ve also realised that I’ve reacted to the result of the EU referendum in a very predictable way. In fact, it makes me kick myself for being so human. In reality, I’m now relieved that I understand what has happened in my own head the last week or so. I was beginning to think that it wasn’t going to end well.

I’ve “Googled” the change cycle. It neatly sums up the process that I, and many others, have gone through. When change occurs, emotions of loss and anger result initially, followed by discomfort that transforms into discovery and understanding. Lastly, it results in integration.

changecycle-wheel
Copyright, http://www.changecycle.com

But, I’ve got a confession to make. I started, in my stage 1 shock and loss, by blaming people. In my stage 2 anger, I blamed all Brexiteers. I blamed them and I called them names. I was so wrapped up in my own feelings about the outcome that I failed to recognise that other people have feelings and views, and quite importantly, are entitled to them.

I’ve taken a step back. I’ve realised that my emotion got in the way of my rational objectivity. Did I seriously just challenge the right to vote of another person because they disagree with me? It happened. I’m on the same level as others who challenge human rights, and I consider myself to be a human rights activist. Thankfully, most of it was in my head, and apart from a ruined evening out with my partner, no harm done. I’ve promised to make it up to her, albeit again, currently only in my head.

How does one reconcile this thinking with the person I aspire to be in society? I had to think hard to avoid putting myself in a position where my opinions and arguments had the very effect I ordinarily campaign against. I now realise the errors in my earlier thought: I cannot be angry at a person for exercising their right to vote.

I don’t have to be happy about the overall decision, and I can campaign against it if I want to, just as Nigel Farage would have done if the result had been the other way around. I signed the second EU referendum petition as a kneejerk reaction, but I doubt that this would in reality be positive (asking the same broad question might allow some to express a change of mind, but fundamentally, is unlikely to get us anywhere further as the losing voters, whoever they would be, would still remain unhappy and unsatisfied). Nevertheless, the point is that it’s the decision I’m unhappy about, not the people, and I think back: was I prioritising my rights over other people’s rights on arbitrary grounds (my own opposite view)?

I don’t think we’ll end up leaving our European connections behind entirely. There’s too much uncertainty and chaos already. But, what I do think we need to do is work together in the UK and find the commonality between the opposing sides. Both sides had a right to vote, yes? Both sides have a right to express (legitimate) opinions on it, yes? (Non-legitimate opinions include those based on racism and those based on how intelligent the voters are, as examples). Both sides should respect human rights. Both sides should challenge racism.

Okay, says the reader, that’s all a bit obvious, isn’t it? Well, yes, but perhaps a less obvious important common theme is that both sides wanted the best for the UK, they just differ on what it is when asked a very broad and all encompassing question.

Did people voting know what they were voting for? Arguments based on whether you knew what you were voting for apply to both sides. Many people do not understand what the EU is and what it does. Many have an idea, but the real explanation is that people voted one way or the other for hundreds of different reasons, some of them not even directly related to the question being posed. Why should they, because even well informed people have very different views on the EU, its scope and effectiveness, and whether UK membership in it is positive or negative. See the Tory leadership, for example.

There’s a warm feeling brewing though. People are standing up against the real evils of society. No matter which way you voted, you find people standing up against racism and fascism. In the end though, whilst the referendum was advisory, what it has shown is how divided the country is on the issue. It was a blunt tool to try decide a complex question. There a thousands of issues arising out of the result. What is needed now is a rational discussion on the future of our UK that brings us closer together. Yes, indeed, a compromise between the (apparently) polarised positions and a conversation that seeks a better situation for all of us, politically, economically and socially. That might mean me conceding that we should not be a full member of the EU in the long run, if others concede that we should have some sort of relationship with the EU, guaranteeing things like freedom of movement.

What I realised though is that it’s easy to lose sight of your values when something big like this happens. I’m hoping that my reflection helps others in their own consideration of the matter and encourages people to not see in polarised “in” and “out” and “yes” and “no” and “right” and “wrong”. It is not, and never will be, that easy. But perhaps a question: what do we all now need to focus on together which would be the best for us all in the future?

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What’s the problem with marriage?

Well, is there a problem with marriage?

Marriage is a legal concept and many protections emanate from its definition. But, that’s not really the main point of it, is it? I don’t think I’ve ever heard a couple discussing the legal protections that marriage brings as the exciting part of getting married.

Marriage is a symbol, a statement, a defining moment and both and outward and inward display of love, affection and commitment. It is entwined and entangled in tradition, religion and history. It comes in many different forms, from simple registry office ceremonies to grand and lavish ‘full-day’ affairs, in a setting of a variety of splendorous country homes, engaging in the gaiety of numerous cultural dances, and celebration amongst food, wine, friends and family, culture permitting.

marriage-923660_1280

There was a problem with marriage though. Up until 2014, marriage was restricted to couples of the opposite sex, but it was a long road to get to that point. Public opinion and public pressure pushed the Government, in 2004, to introduce civil partnerships. From hereon, same sex couples would be entitled to engage in civil partnerships and would obtain the same legal rights as married couples. Yet, they would still not be permitted to marry. Whilst many decided to establish their civil partnerships, the campaign continued. Public pressure mounted, and eventually marriage was permitted for same sex couples as well.

Civil partnerships were a fix. Not a quick fix: a hard won fix. They were also not the solution. The solution was to allow same sex couples to marry, but at the time, this was not going to be possible, as public opinion was not yet perceived to be on side. Civil partnerships worked, as they were an interim measure, awaiting a time when changing the law on marriage would be possible.

It seems though that now the fix itself has become the problem. This article looks at the case of Seinfeld and Keidan v The Secretary of State for Education, in which a couple attempted to challenge the law preventing couples of the opposite sex entering civil partnerships together.

But what is it really about? To me it is about equality, but in the sense of fairness. Same sex couples can obtain civil partnerships, but opposite sex couples cannot. It is also about a challenge to the norm, or traditional forms of union. Marriage is bound up with our history. This means it is associated with religion, patriarchy, tradition and societal expectation. Civil partnerships do not have that association. They are free, to an extent. From what I can tell, the couple in this case thought that civil partnerships would be more equal, between men and women, whereas marriage is bound up in patriarchy.

The obvious irony of the introduction of civil partnerships is that now that same sex couples can marry, these couples have a choice that does not exist for opposite sex couples, whereas before no-one had a choice.

The case of Seinfeld and Keidan

The challenge brought was based on the European Convention on Human Rights. In particular, Article 14 in conjunction with Article 8. What they were saying was that when the Government introduced marriage for same sex couples, they should have changed the law to allow opposite sex couples to have civil partnerships.

They said that the state was interfering in their right to a private and family life by not allowing them to obtain a civil partnership (Article 8). What they also said is that this interference was discriminatory as it was on the basis of their sexual orientation (Article 14).

Copyright, BBC
Copyright, BBC

The court disagreed. It’s decision was that the state had denied the couple civil partnerships but that this did not interfere with ‘…their love, trust, confidence, or mutual dependence and has placed no constraints on their social intercourse’ (the key elements of ‘family life’) (see para.37). They were entitled to get married if they wished. But the court did not believe that their private life had been interfered with either. It said, ‘there is no evidence that they are subjected to humiliation, derogatory treatment, or any other lack of respect for their private lives on grounds of their heterosexual orientation by reason of the withholding of the status of civil partners from them.’ (para.38).

The court went further. It considered that the only obstacle to the couple’s wish to obtain legal recognition of their relationship was their own consciences. The judge said, ‘whilst their views are of course to be afforded respect, it is their choice not to avail themselves of the means of state recognition that is open to them’ (para.39). The court did not consider that the state, which provides for formal recognition of relationships through marriage, should have to provide a further means of formal recognition for couples of opposite sex.

The couple’s case therefore failed on the consideration of Article 8, the right to a private and family life, alone. There’s a lot more to this judgment, and I don’t really have space to go further into the consideration of Article 14 (see para.57 onwards, should you wish to read that). The couple have permission to appeal against this decision, so there may be more on this case in the future.

Some figures, but not all the figures

I decided to have a quick look at the number of civil partnerships compared to marriages since marriage became possible for same sex couples. The Office of National Statistics have a bulletin dedicated to this very topic. Whilst there are peaks and troughs each year (the peaks occuring in the summer months), what is clear from this graph is that, following the August 2013 peak, the numbers of civil partnerships never recovers in 2014. In fact, it continues to further decline. This coincides with the date from which marriage for same sex couples became legal, 29 March 2014.

chartimage
Copyright, Office for National Statistics (October, 2015)

What this could show, although I would suggest waiting for a few more years’ data to determine this conclusively, is that, following the introduction of marriage as an option for same sex couples, the overwhelming majority of couples chose marriage over civil partnerships. What it also suggests (although, I repeat the caveat) is that the number of civil partnerships continues to decline. What will be interesting is to see 2015’s data for civil partnerships.

But what else? Is it worth pursuing?

The judge in Seinfeld and Keidan’s case is clearly persuaded by the arguments put forward by the Government. Indeed, the judge states

This is not a case in which the Government has decided, once and for all, to maintain the current situation in which same-sex couples have a choice of civil partnership or marriage and opposite-sex couples do not have the same choice. (paragraph 60).

The Government was required to consult on changes to the law on civil partnerships. The responses are interesting and it published its report in June 2014. The Executive Summary provides the highlights, as follows:

Of the over 10,000 online survey answers to each of the relevant questions:

  • Less than a third of respondents supported abolition of civil partnership;
  • The majority were against closing civil partnership to new couples;
  • Over three-quarters were against opening up civil partnership to opposite sex couples.

The judge recognises the Government’s ‘wait and see’ approach: that it is too soon for change, that they need to see how things settle and see what the effect on the number of partnerships is. They state this in the Executive Summary, ‘Given the lack of consensus on the way forward, the Government will not be making any changes’ (see page 4 of the report).

Given the statistics set out by the Office of National Statistics above, they might be right. But there are two other key problems for heterosexual couples seeking to become civil partners. One, heterosexual couples can already obtain marriages, either civil or religious, so there argument over the need for equality weakens. The benefit obtained from civil partnerships seems (and this is a big ‘seems’) to me to be in the name alone (i.e. the name disassociates it from marriage and the views one has of marriage). The second issue is that it is not recognised outside of England and Wales; whereas, marriage is.

So, you choose to get married, or you don’t, was the response from the judge. Whether this is fair depends on whether civil partnerships will stay the course. If there are so few new ones, and the majority of those obtained before marriage became legal have been converted into marriage (which the law provided for), the Government could legitimately decide to remove them. Providing an expensive regime to allow for civil partnerships does not seem necessary if there are likely to be so few. However, if not and bearing in mind that getting rid of them was opposed by the majority of respondents to the Government’s consultation, if there is a demand for this alternative type of union, I would argue that they should be opened up to opposite sex couples, in the interests of fairness. What needs to be determined is whether there is a demand for it. If there is, the Government should set a timetable for concluding its ‘wait and see’ approach.

Further reading

As already mentioned there are the following pieces of further information:

Feedback, thoughts, comments

Are all gratefully received.

Chris

 

Read this week (3rd edition)

Where to start with this one? Well, perhaps a little update on a couple of ideas for articles. if there are any suggestions, do let me know.

I think there are three that are currently brewing in my mind. One, is about a recent court case challenging the law on civil partnerships; the second will attempt to summarise what the controversy in relation to GCHQ surveillance is and why it matters; and the third will look at the Sovereignty Bill (if it still exists). The idea behind the latter is to tackle the perceived problem of interference with UK law by the European Court of Justice (an EU institution) and the European Court of Human Rights. However, there are indications that this idea may have already been and gone.

And so, ‘read this week’ (well, to an extent). I’ll cover a few things this time around including and update on the al-Faqi trial, two convictions for international crimes, the arrest of Florence Hartmann, human rights and North Korea and a forthcoming case on UK Government surveillance powers in the European Court of Justice.

A guilty plea, two convictions and an arrest

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Copyright, ICC (2016)

A few weeks ago I mentioned the case of Ahmad al-Faqi al-Mahdi (pictured) who is currently being prosecuted at the International Criminal Court (ICC) (see their website for further information) for the intentional destruction of culturally important buildings in Mali. The development is that he has decided to plead guilty to the charges against him. See this article on AfricaNews.com and the press release and statement by the Prosecutor, Fatou Bensouda. It is also the first time that a suspect has pleaded guilty before the ICC.

Also in the ICC, the Court found Jean-Pierre Bemba Gombo guilty of crimes against humanity and war crimes for murder, rape and pillaging, all committed in the Central African Republic between 2002 and 2003. Troops in the Mouvement de Libération du Congo were under his authority and control at the time they committed the crimes. He will be sentenced shortly. The press release and judgment are available on the ICC’s website. The judgment (as you would expect) is very large, but the overview begins on page 10, which may be the easiest place to start.

In the International Criminal Tribunal for the former Yugoslavia (ICTY), Radovan Karadzic was convicted of genocide, crimes against humanity and for violations of the laws of war. He was Supreme Commander of the Republika Srpska at the time the crimes were committed in Bosnia and Herzegovina. The crimes were committed between 1992 and 1995 and included the massacre at Srebrenica (1995). He was convicted to 40 years imprisonment. This has been quite a well reported case, and there is plenty of information out there. The ICTY’s press release is here. Interestingly, there are 12 remaining cases at the ICTY of a total of 161 people indicted.

Lastly for this section, Florence Hartmann was arrested outside the Hague whilst waiting for the verdict in the Radovan Karadzic case. There are concerns in relation to her detention, including that she is being held in isolation. It stems from a conviction for contempt of court in 2009 for revealing information about two court decisions that were confidential. As Ed Vulliamy states in the Guardian, ‘Hartmann was convicted of contempt of court in 2009 for revealing in a book that the tribunal had withheld crucial information on the Srebrenica massacre of 1995 from the…international court of justice.’

Hartmann is a journalist and worked for Le Monde newspaper covering events in the Balkans in the 1990s and also worked for the ICTY, which is the body that later convicted her. Hartmann was convicted in 2009 and fined. Her sentence was later changed to seven days in jail when the fine went unpaid. The worrying part of this case is that the UN police decided to make the arrest on the day of the Karadzic verdict and in front of survivors of the war, who tried to prevent the arrest. The 2009 judgment can be found here and Hartmann’s appeal judgment here. It will be interesting to see how this progresses during the week. On the one hand, it is a demonstration that nobody is above the law, on the other, is it suppressing a journalist’s right to free speech?

For further commentary on the cases referred to above, and a few other developments as well, see the European Journal of International Law’s blog article, International Justice on the March.

North Korea and human rights

On Wednesday last week the UN Human Rights Council established a expert working group that will look to find ways to hold North Korea’s leaders to account for violating human rights in the country. This was covered by NKNews.org and by Human Rights Watch. It all ties in to what is above. Leaders are being held responsible for their actions and the crimes they commit.

One of the first stepping stones to be overcome came in February 2014 as the United Nations Human Rights Council Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea published its report. The summary report states in is analysis under Crimes Against Humanity (see paragraphs 74, 75 and 76),‘…the commission finds that the body of testimony and other information it received establishes that crimes against humanity have been committed in the DPRK…’

‘These crimes against humanity entail extermination, murder, enslavement, torture, imprisonment, rape, forced abortions and other sexual violence, persecution on political, religious, racial and gender grounds, the forcible transfer of populations, the enforced disappearance of persons and the inhumane act of knowingly causing prolonged starvation.’

The commission linked these crimes directly to the policies of government and the government institutions. The report is available here. It is absolutely unlikely that there will be a quick fix for the victims of the North Korean regime.

Surveillance, the UK and the European Court of Justice

This time it is the European Court of Justice and which is part of the European Union and has a role in the interpretation and enforcement of European law. It settles disputes between EU member states and in some cases also allows individuals to make applications to enforce their rights. See the europa.eu webpage for more information.

The reason it has come up is that there will be a hearing on 12 April at the European Court of Justice in relation to a challenge brought by David Davis and Tom Watson (the politicians, for the avoidance of doubt) on bulk interception of communications at GCHQ. As the Guardian reports, ‘The case raises such significant dilemmas in balancing conflicting interests of online privacy and national security that at least nine other EU countries and the European commission have also made submissions.’

The less interesting implication for this case is that the court might make their judgment available before the EU referendum in the UK, which may, perceivably, have an impact on the outcome. The more likely risk is that, whichever way the decision goes and if the judgment is released before the referendum, it will be used in such a way to justify one or the other’s cause, which inevitably misses the point of whether bulk interception of communications is a method that is positive, negative, legal or not legal!

There’s a lot to the surveillance debate and it will be worthy of dissertations, theses and at least a few articles on blogs! Here are a few suggestions on reads: an interview with David Davis MP in November 2015 and Liberty’s summary of the Investigatory Powers Bill.

Thanks for reading.

Chris

 

It’s hard to see the relevance.

This post began with an article on the Daily Mail website. The article argues for Brexit, referring to the case of April Jones, who was abducted and murdered in 2013. There are a number of problems with it:

  1. A tragic and emotionally charged murder case it not relevant to the question of whether the UK should leave the European Union (EU);
  2. The article confuses the EU and the European Court of Human Rights (ECtHR);
  3. The article confuses the European Court of Justice (ECJ) (an EU institution) and the ECtHR (which is not an EU institution, but is a creature of the perhaps confusingly named Council of Europe);
  4. The article refers to the case of Hutchinson, criticises the ECtHR, but does not seek to explain what that case and its decision were about, or make clear that it was actually the ECtHR that made the decision (in fact, it says the opposite).

What is this post about? Well, it is not about Brexit and, save for pointing out that there is a difference between the EU and the ECtHR and between the ECJ and the ECtHR, it is not centrally about those institutions (or the number of acronyms used).

What I thought might be interesting is to write about what Hutchinson is, and what it means. I therefore want to cover (briefly, to an extent), who is Hutchinson, what his case was about, a bit of the background and the decision in Hutchinson.

Who is Hutchinson?

Arthur Hutchinson was convicted in 1984 of the murder of three people, rape of another and aggravated burglary of a property (their house), all occuring in October 1983. Hutchinson murdered a married couple and their son using a knife and then repeatedly raped their daughter. The trial judge sentence him to life imprisonment and both the trial judge and the then Lord Chief Justice recommended a whole life term (i.e. he would never be released from prison). This requires the Secretary of State for Justice’s (the SofS) consideration and, in 1994, the SofS concurred and a whole life term was imposed.[1]

What was his case about?

It is not a straightforward challenge to his whole life order, nor is it an appeal against it. The challenge is limited to whether there could ever be a review of his whole life order, which might lead to his release. As will become clear, this would only be in exceptional circumstances under current law.

Hutchinson had a number of complaints. He relied on another case in the ECtHR of Vinter [2], which had considered UK law and whole life tariffs and decided:

  1. there had been a violation of Article 3 (the right to freedom from torture, inhuman and degrading treatment, see this page on Rights Info for further information on Article 3);
  2. the violation occured because there was a lack of clarity over whether whole life orders could be reviewed. [3]

Hutchinson also complained that the policy in other countries is tending towards requiring a fixed review of whole life orders (for example, occuring every ‘X’ number of years); but also that they are judicially, or ‘quasi-judicially’ conducted reviews (and not political ones by a SofS) [4].

A bit of the background

There are three parts to this: the SofS powers, the case of Vinter; and the case of R v Newell and R v McLoughlin.

The SofS powers

The starting point is that there is no longer any automatic and periodic review of a prisoner’s whole life tariff. [5]

However, the SofS for Justice has a discretion to release a prisoner serving a whole life term [6]. He can release the prisoner ‘…if he is satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds.’

The SofS publishes the Lifer Manual, which builds on this discretion and details the ‘…criteria for compassionate release on medical grounds…‘. The Manual limits the circumstances to terminal illness and a death that is likely to occur within a short timescale. Even then, there is no guarantee that the prisoner will be released [7].

Vinter (2013)

What the ECtHR said in 2013 in Vinter was that it was not clear whether a review could occur in any circumstances other than on health grounds that are in the Lifer Manual (so, as an example, a prisoner would need to be terminally ill in order to apply for release). If the SofS would not go further than the Lifer Manual, it would be in breach of Article 3 as it did not offer any ‘prospect of release’. The Court suggested that the SofS may need to amend the Lifer Manual, or for there to be a further court case in England to provide the clarity required [8].

What the Court of Appeal said in R v Newell; R v McLoughlin [9]

In 2014, the Court of Appeal disagreed with the ECtHR and provided clarification of the law in England and Wales. The Court said:

  1. The SofS discretion to review a whole life tariff arises in exceptional circumstances. The offender needs to show how their circumstances are exceptional. As the court said, ‘it is not necessary to specify what such circumstances are or specify criteria, the term ‘exceptional circumstances’ is of itself sufficiently certain.’  [10]
  2. Whilst the SofS must consider whether the circumstances justify a release on compassionate grounds, the Lifer Manual cannot prevent the SofS from considering all relevant circumstances, even if they are not listed in the manual. If the SofS does not consider all of the relevant circumstances (i.e. ones not in the Lifer Manual), he will ‘fetter his discretion’, which would be unlawful. [11]
  3. Compassionate grounds must be read compatibly with Article 3, and cannot be restricted by the Lifer Manual.
  4. The SofS’s decision must be on the circumstances of each case and is subject to judicial review.

The court summarised, as follows:

36. It is entirely consistent with the rule of law that such requests are considered on an individual basis against the criteria that circumstances have exceptionally changed so as to render the original punishment which was justifiable no longer justifiable. We find it difficult to specify in advance what such circumstances might be, given that the heinous nature of the original crime justly required punishment by imprisonment for life. But circumstances can and do change in exceptional cases.

The decision in Hutchinson

There were two elements to the decision in Hutchinson: a) the need for a review mechanism for whole life orders and b) whether the UK’s review mechanism is sufficient to comply with Article 3.

  1. a) the need for a review mechanism for whole life terms

As a start, the ECtHR recognised that it is important that states are able to impose whole life terms on criminals and that these are not prohibited by Article 3 or the other articles in the European Convention on Human Rights. What would contravene Article 3 is a sentence that would not end even where it was no longer appropriate.

The court considered its case law and reiterated that such sentences need to come with a prospect of release (however small) and a possibility of review. If a sentence does not have this, ‘…there was the risk that he [the prisoner] could never atone for his offence and that whatever he did in prison, however exceptional his progress towards rehabilitation, his punishment would remain fixed’ [12]. This would be incompatible with human dignity and outwith the shift towards rehabilitation whilst imprisoned.

  1. b) whether the UK’s review mechanism is sufficient to comply with Article 3

The court’s view was that the UK’s mechanism, as clarified by the Court of Appeal, was sufficient to comply with Article 3.

So, what does that mean? Well, (arguably) it means that  the current process works in the UK and the Court of Appeal’s clarity on the workings of the current law helped the ECtHR. The SofS can conduct a review of a prisoner’s whole life term in exceptional circumstances, which might include those listed in the Lifer Manual of terminal ill-health, but could be other things (i.e. circumstances, not yet defined, which could require the release of the prisoner). What is clear is that, when considering whether there are compassionate grounds for the release of a prisoner, the SofS considers all relevant circumstances and not just those in the Lifer Manual.

Does this settle the debate?

Not yet. Hutchinson’s case was referred to the Grand Chamber of the European Court of Human Rights and was heard on 21 October 2015. The Grand Chamber’s judgment could change things. For example, it could say that it still finds the law unclear, or uncertain, and recommend that the Lifer Manual is changed to provide such clarity. It could go further, and it could highlight that many states throughout the world have some sort of provision for an automatic review, after around 25 years, and that something similar would be preferred.

We’ll wait and see.

_______________________________

[1] See paragraphs 5 to 7 of Hutchison v United Kingdom (App. No.57592/08), judgment of the Fourth Section Chamber of the European Court of Human Rights, 3 Feburary 2015. Available from http://hudoc.echr.coe.int/eng?i=001-150778

[2] See paragraph 9 of n 1

[3] See paragraph 13 of n 1

[4] See paragraph 16 of n 1

[5] A periodic review at 25 years was removed by the Criminal Justice Act 2003, see the following article in the Guardian: http://www.theguardian.com/law/2015/feb/03/european-human-rights-whole-life-tariff-hutchinson

[6] Section 30(1) of the Crime (Sentences) Act 1997 (and paragraph 10 of n 1)

[7] Chapter 12 of Lifer Manual and para.10 of n 1

[8] Paragraph 129 of Vinter and Others v the United Kingdom Nos.66069/09, 130/10 and 3896/10 as referred to in paragraph 28 of R v Newell; R v McLoughlin [2014] EWCA Crim 188 and paragraph 13 of n 1.

[9] R v Newell; R v McLoughlin [2014] EWCA Crim 188

[10] See paragraph 13 of n 1 and paragraph 31 of n 9

[11] See paragraph 13 of n 1 and paragraph 32 of n 9

[12] See paragraph 19 of n 1

Read this week…2nd edition

The easy thing about writing is saying that you’re going to do it. The next level of difficulty is actually sitting down, writing, and completing something. The hardest part is keeping going at it, especially when reader statistics are low. Last week’s post is here.

Perseverance, perhaps?

Nevertheless, here is (surprisingly) the second edition of ‘read this week’. My ‘weekly’ which summarises some of the things I’ve read on law and human rights that were interesting to me. I hope they are of interest to you.

Cultural destruction and the International Criminal Court

This one is genuinely fascinating and a fantastic development for the International Criminal Court (ICC) (an international, independent body responsible for trying the ‘…most serious crimes of international concern, namely genocide, crimes against humanity and war crimes.’ [1]).

The case was reported on The Art Newspaper, on 29 February.  Ahmad Al Faqi Al Mahdi (pictured at his confirmation of charges hearing on Tuesday, below) was (allegedly) a member of Ansar Eddine, but also Hisbah, which was a group responsible for the upholding of public morals and to prevent vice. The prosecution assert that he is responsible for the destruction of 10 culturally important buildings in Mali, including 9 mausoleums and one 15th Century mosque (the Sidi Yahia mosque, see this article from The Atlantic, in

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Copyright, ICC

2012).

 

If it comes to trial, it will be the first ever prosecution at the ICC for intentionally directing attacks against culturally important buildings.

Further information on the case is available from the ICC website, including this press release, the case summary and the case Q&A.

Canada and the Right to Die

Those that have known me for a while will know that I have followed the debate on the right to die quite closely over the last few years. It’s interesting that it creeps on and, in some quarters, actually advances towards a more sensible debate about how we die, and whether, in certain circumstances, we should have (legally) more control over how and when it happens.

I spotted an article on ABC covering the fact that a law in Canada for medical assistance in dying may not be that far away. Canada’s Government must respond to a judgment of its Supreme Court [2] that its Criminal Code (sections 14 and 241(b)) is inconsistent with fundamental human rights; namely,  Section 7 of the Constitution Act 1982, ‘Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.’ 

The Criminal Code currently prevents physician assisted suicide. The Government has responded by establishing a joint committee to consider the issue which has reported and made recommendations on what eligibility for medical assistance in dying could look like, as follows:

Substantive Safeguards:

  • A grievous and irremediable medical condition (including an illness, disease or disability) is required;
  • Enduring suffering that is intolerable to the individual in the circumstances of his or her condition is required;
  • Informed consent is required;
  • Capacity to make the decision is required at the time of either the advance or contemporaneous request; and
  • Eligible individuals must be insured persons eligible for publicly funded health care services in Canada.

Procedural Safeguards:

  • Two independent doctors must conclude that a person is eligible;
  • A request must be in writing and witnessed by two independent witnesses;
  • A waiting period is required based, in part, on the rapidity of progression and nature of the patient’s medical condition as determined by the patient’s attending physician;

    Annual reports analyzing medical assistance in dying cases are to be tabled in Parliament; and

    Support and services, including culturally and spiritually appropriate end-of-life care services for Indigenous patients, should be improved to ensure that requests are based on free choice, particularly for vulnerable people.

    See page 3 and 4 of the Report of the Special Joint Committee on Physician-Assisted Dying, ‘Medical Assistance in Dying: A Patient Centred Approach’, February 2016, available from: https://www.documentcloud.org/documents/2721231-Report-of-the-Special-Joint-Committee-on.html

Related to this is a pod-cast, Better Off Dead, (available on itunes) mentioned in the above article by an Australian, Andrew Denton, who is campaigning for reform of voluntary assisted dying in Australian law. He argues that good people are dying bad deaths (his words, not mine). A summary of his arguments are in this Guardian article, but I have quoted the following from it, as follows:

 

It is a sad irony that by successfully arguing mythical threats to hypothetical grannies, opponents of assisted dying in Australia continue to allow real harm to actual grannies.

So many Australian families have scarifying stories of family members dying badly. The statistics about elderly suicide in Australia – not lonely people who are depressed, but people from loving homes who have irreversible, chronic diseases and who see no way out but to kill themselves violently – are shocking.

Testifying to the state parliament’s end of life choices inquiry last year, a Victorian coroner, John Olle, estimated that one elderly Victorian died in this way every week. And the National Coronial Information Service reports that every week, two Australians over the age of 80 take their lives. The most common method? Hanging.

Re-read the last paragraph of this quote.

That’s what happens when the law doesn’t work properly.

We are a way off Canadian style change in the UK.

50th Anniversary of the UN International Human Rights Covenants

I would hazard a guess that these are not so widely well known in the UK, but they are very important to the development of human rights when looking at it on an international scale. These are the UN covenants on human rights, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). These were adopted by the UN in 1966; although came into force in 1976. The UK is a signatory to both but the Covenants do not have direct effect (which essentially means that people cannot rely on them directly in the UK, because they have not been incorporated into our domestic law). However, they are important Covenants, as they set the minimum standards across the world for human rights. Importantly, the ICESCR exceeds human rights standards in the UK, as it sets standards for economic, social and cultural human rights, some of which are covered indirectly in the UK, but others which are not labeled as ‘human rights’. For example,  rights to the highest attainable standard of physcial and mental health and equal rights of men and women.

The Covenants are 50 years old this year, as the United Nations Human Rights Council recognised this week.  Which I think is a good thing.

Coming soon

I’m working on my first post looking at a report in the UK media which confuses the EU referendum saga with the European Court of Human Rights, and which (in my mind) misreports the judgment and makes a poor argument for Brexit.

Chris

[1] ICC website, ‘ICC at a glance’, accessed 5 March 2016

[2] Carter v Canada (Attorney General), 6 February 2015, accessed 5 March 2016, available at: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14637/index.do

Amnesty International and the UK (2015)

Amnesty International published its annual report on human rights on Wednesday, 24 February, with some coverage, interestingly enough. The report covers 160 countries and briefly states some of the positive and negative progress made in the development of human rights in those that are covered. The UK is included and, just for balance, there are some positive developments, despite the large number of negatives (including the big Human Rights Act repeal proposal problem)!

Media coverage

I did not expect there to be much media coverage, but was reassured by the fact that a number of outlets (I only checked a few mainstream ones: BBC News, the Telegraph, Daily Mail and the Guardian) did cover it, albeit with some assistance from the Press Association.  Only the Telegraph did not appear (by a rudimentary search on their website for ‘Amnesty International’) to cover the story. I have to say that the BBC’s search engine is so poor that I cannot work out whether they covered it based on the same search.

Amnesty launched the report in the UK with a strong piece in relation to the UK setting a dangerous precedent to the rest of the World on human rights. Principally, this is due to the Government’s desire to repeal the Human Rights Act 1998. But, it also covered the unintended consequences: that other countries with arguably poor or very poor records on human rights can point to the UK and say ‘if they’re not following it, we’re not following it either.’ The cartoon on their news report is a fantastic satire of the problem human rights face in the UK, which I haven’t saught to reproduce, but merely link you through to it.

What did the report cover?

The main message concerned the risk to the human rights framework in the UK as a whole with the threat of repeal of the Human Rights Act 1998 and its replacement with a bill of rights (I intend to cover this at somepoint in the future). Nevertheless, this is not the only threat to rights, with the Trade Union Bill, counter terrorism measures, torture and ill-treatment, surveillance and UK’s ongoing refusal to support refugees, all being included within the report. Worryingly, the Government has been conducting surveillance on Amnesty International itself (see page 385), which they highlight included interception and retention of communications.

I would recommend also reading the sections on Northern Ireland and Sexual and Reproductive Rights to get a (very brief) sense of a few of the issues ongoing there.

Overseas effect?

One of the key themes that Amnesty are playing with is something the Huffingdon Post also covered quite well: by talking about repealing human rights legislation in the UK (even if that is to replace it with something else), are the Government supporting regimes and governments elsewhere which do not have positive approaches to human rights? This is exemplified by Kenyatta’s (the current President of Kenya) testimony before the International Criminal Court in 2013, in which he relied on the fallout from the prisoner’s voting rights case and threats by the UK Government to walk away from the European Court of Human Rights (ECtHR) as an excuse to not be subject to external scrutiny himself (so, oddly, a court outside of your country would not be able to scrutinise allegedly illegal acts, even though your country was a signed up member of the court). At the time, that was covered quite nicely by the UK Human Rights blog.

The second is a Russian piece of legislation that, as Huffingdon also explain, was passed in December 2015, which allows Russian courts to disgregard the European Court of Human Rights (it’s phrased as ‘foreign courts’, which would of course include the ECtHR). Again, are we setting the example for other countries with the uncertainty over our own rights protection in the UK, and also cases such as Hirst (see the ECtHR factsheet, here) which is the example of the UK’s non-compliance with a judgment of the ECtHR? It is a slightly worrying state of affairs, given the number of pending cases awaiting consideration from Russia, which stands at 9,150 (13.8% of the cases pending and number three in the list of states). Perhaps, the more worrying statistic is that in 2015, the ECtHR found 109 violations against Russia, over one-sixth of the violations found in total.

Picking and choosing which judgments to comply with quite clearly defeats the objective.

Chris

Read this week…

Here’s one of the things that might be interesting, or useful, about this blog. A regular post about some of the things I have been reading out there about law and rights. It’s not intended to be the ‘essential reading’ or things that are ‘must read’. These are articles I’ve read, that might be interesting.

Another article on the EU – but at least this one is interesting

At the moment, the UK is dominated with the endless debate about whether it should remain a member of the EU or not. For the record (if there is such a thing), I’m of the view that the UK should remain in the EU, which was summed up quite nicely in a Guardian article this week, in which a ‘German economic migrant’ (or, more ordinarily, ‘a chap from Germany’) explains that he plans to leave the UK if it leaves the EU. He had some good reasons for this, such as not wanting to go through the hassle of applying for a Visa. I thought I would quote him,

It is time Britain realises it is not an empire any more, and that most problems nowadays are global and can only be solved within a supranational context.

Essentially, there are strong arguments for ‘better together’.

And so, I should come back to law and rights, even though the EU is an arguably very important force.

Student Barristers

It’s costing students over £127,000 in the UK to become a barrister (i.e. a lawyer). I don’t think it cost me this much, but I was lucky with the cost of my undergraduate degree. With student fees now costing £30,000 per degree course, it soon stacks up. The main problem is the competition post qualification. With the number of students far in excess of the number of pupillage places, it’s more than likely that you don’t end up practising law. In my mind, unfortunately there is definitely a glass ceiling for a lot of people. This is an interesting article exploring the economic problems of getting to the bar.

Dealth penalty – Zimbabwe

I caught a news article suggesting that the Government in Zimbabwe is moving towards elimination of the dealth penalty. It’s a clear positive, an excludes all women and all people under the age of 21 from such a sentence. I would welcome any comments on accuracy and whether this is actually as positive a step forward as it sounds. Nevertheless, a long way to go before the death sentence is eliminated for good. The article was on allAfrica.com.

Johnson & Johnson ‘talc’ court case

This is a strange one. A BBC report on a case in the USA in which Johnson & Johnson (J&J) has been successfully sued by the family of a lady who died of ovarian cancer. The family asserted that the use of J&J’s baby power talc was the cause, and have convinced a jury of this. They have awarded a staggeringly large amount of damages. Apparently, there’s a great deal on inconsistent scientific evidence, and although some of the studies suggest that there may be a link, there are many which equally do not. See the BBC article on this case here. If anyone out there has a public copy of the judgment on this case and would be willing to share, do let me know.

UK – Amnesty International International Report 2015/16

This was published on 23 February 2016 and I’ll have a read of the UK section and post tomorrow. The report is available here and covers and, ‘…documents the state of the world’s human rights during 2015’. It includes analysis of the UK and covers 160 countries world wide.

 

There, my very first ‘proper’ post. I hope it was of some interest.

Chris