Thursday, 15 December 2011

Well there you are: the European Court of Human Rights has decided not to precipitate a crisis of authority between itself and the UK Supreme Court after all.

In today’s Grand Chamber decision in AL-KHAWAJA and TAHERY v. THE UNITED KINGDOM, the challenge was to UK hearsay law, a law which in certain circumstances allows statements to be admitted in evidence and to play a sole or decisive role in securing a conviction even where they are not made in the course of the trial. The Grand Chamber has now ruled that this does not as such amount to a breach of the Convention’s right to a fair trial (to be found in article 6). The Chamber judgment of the same name which claimed this was wrong; the UK Supreme Court ruling of R v Horncastle [2009] UKSC 14 (with Lord Phillips prominent) which said as much was right, or at least more right than the first version of Al Khawaja and Tahery had been. Of course where such evidence is admitted - with no possibility of cross-examination or testing in open court - then it has to be treated cautiously and where it is the sole or decisive evidence then the court needs to be super careful and check what other safeguards there are to guard against injustice. But crucially there is no automatic breach of article 6.

My colleague at LSE Mike Redmayne is an expert on the law of criminal evidence and with his permission I summarise here his comments to me about the case:

"Well, it’s an interesting judgment. They do a careful job: one of the better ECHR judgments I’ve read. There’s a concurring judgment from Judge Bratza, which sets the context: he welcomes the dialogue with the national court." (I intervene here to set out exactly what Judge Bratza said: "The present case affords, to my mind, a good example of the judicial dialogue between national courts and the European Court on the application of the Convention to which Lord Phillips was referring., and thinks this is a sensible way to settle things.") …

Then Mike goes on:

"The majority judgment looks at the law in lots of other common law jurisdictions, giving a more careful review than the Supreme Court did in Horncastle. They also look very closely at the Supreme Court’s arguments, and address them one by one. They don’t concede much. The Chamber judgment was that if hearsay is the sole or decisive evidence against a Defendant, it can’t be used. But the Grand Chamber concede that this is too absolute: exceptionally, hearsay can be sole or decisive and not make a trial unfair. On the facts of the cases, they conclude Al-Khawaja had a fair trial (there was corroborating evidence), but that Tahery did not…. Where that leaves domestic hearsay law is hard to say: but we’re probably left with something like a corroboration rule for hearsay."

The partly dissenting judgments of Judges SAJÓ AND KARAKAŞ show how this case might have gone.

The Convention gives a defendant in a criminal case a specific right (in article 6(3)(d)) "to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him." On the view of these dissenters, this represents an unqualified right which cannot be turned into just an element in the general test of fairness already set out in Article 6(1) - "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." But this they complain is exactly what the majority have done. Before today "this Court has never stated that fairness can still be achieved [even] if one of the fundamental rights is deprived of its essence." They went on: "With regard to the right to cross-examine witnesses and the related but broader equality-of-arms principle, the Court has systematically and consistently drawn a bright line, which it has never abandoned, in the form of the sole or decisive rule." And then melodramatically but perhaps accurately: "Today this last line of protection of the right to defence is being abandoned in the name of an overall examination of fairness."

Who is right?

There is certainly a change in that the "sole or decisive" rule is dumped but only on account of its inflexibility. It is still the operating assumption and will be hard to rebut. And whatever about the substance of the case, if the minority had won out there would now be quite a lot of political noise about this silly court and the inflexible insensitivity of its rulings and so on. It’s a relief not to be having to listen to all these pontificating sceptics, and know at the back of your mind that maybe, just maybe, they have a point. Things will probably calm down on the Strasbourg front now, so far as the local political temperature is concerned.

Last word to Mike:

"So on a first look the ECHR come out of this pretty well: they’ve played the Supreme Court at its own game, of carefully reasoned argument drawing on comparative resources, and done a good job. They abandon some of the stupid arguments the Chamber made. And the English courts won’t have to concede much."

In other words: a score draw after an entertaining match. Strasbourg and the Human Rights Act live to fight another day!

Wednesday, 23 November 2011

Britain runs the Council of Europe!

The cat is well and truly out of the bag now.

The Foreign Secretary has announced the government’s priorities for its chairmanship of the Council of Europe. ‘Chairmanship of the Council of Europe,’ I hear you say - what exactly is that?


This once obscure outpost of regional largesse (the UK follows Ukraine and is followed by Albania) has suddenly become the lynch-pin of Britain’s effort to apply its wonderful diplomatic skill and invincible intelligence to reform of the European Court of Human Rights.

Now talking up reform is a sensible idea, politically. There is obviously lots wrong with the structures under which the Court has to labour, a fact of which all those who work in Strasbourg are painfully aware. Turning the chairmanship into the legal equivalent of D Day has allowed David Cameron and Ken Clarke to fight off Euro-sceptics (who are never very particular about which Europe it is they despise) by claiming that they are finally ‘getting a grip’ on this scruffy and intrusive human rights Babylon.

But hold on a bit.

When the cat’s away the mouse does play. The Foreign Secretary’s job these days is to translate the political into the diplomatically possible, ‘mediate’ (the right scholarly word I think) between the Tabloid incitements of his colleagues and the … er… need to keep Ukraine, Albania and so on onside.

So the announcement.

Lots of very sensible stuff, much of it obvious and almost all of it building on previous work, not least last year’s Interlaken Declaration.

But then, suddenly there is this: ‘human rights, democracy and rule of law are central to the policy of the United Kingdom in every area of government.’

Every area of government: does that include the cat-hating Home Office?

And then there is the government’s commitment to subsidiarity: ‘This involves strengthening the implementation of the Convention at national level, to ensure that national courts and authorities are able to assume their primary role in protecting human rights’.

Strengthening the implementation of the Convention ?

So will the Government lead by example, supporting the Human Rights Act as a model for Europe, or even adding to it so as to allow judges better to implement the Convention (by striking down Acts of Parliament)?

The ‘Declaration’ at the Ministerial conference on reform of the Court to be held in the UK on 14 May next year will be fun. This is getting very post-modern. Will the government (as chair of the Council of Europe) attack itself (as protector of all that is Great in Britain) for failing to treat its own recommendations with the seriousness demanded of foreigners.

Time for a jazz record.

You couldn’t make it up.

Thursday, 20 October 2011

So the encampment at Dale Farm has been broken up. The travellers and protestors have left. The final throw of the litigious dice has failed, and the expulsion has been achieved.

How did the judicial route, once seemingly so endlessly promising, ultimately turn into a cul-de-sac?

The details of what was to be done by way of implementation of the enforcement notices (entitling the Council to act) were finally judged sufficient to allow the action. And a last minute dependence on the Human Rights Act proved of no avail: the argument had come too late in the day to make a difference. In any event, ruled Ouseley J on the 12th October, the local authority had lawfully and rationally considered the proportionality of its conduct and had taken the claimants' personal circumstances, health and education into account when making its decision. The planning system and the criminal law could not be indefinitely defied, thereby bringing both into disrepute. The interests of the children of the campers were being looked after - if the families did not take up the offer of alternative bricks and mortar accommodation then that was their problem, not that of the Council.

Sure there would be distress just as there had already been a vast expenditure of legal costs. But that was simply how it had to be.

Some questions:

- will David Cameron, Teresa May, Melanie Phillips, the Daily Mail and all the other Human Rights Act haters now praise the Act for its failure to provide protection for the travellers? Or do they only notice the measure when opportunity gives them a chance to disparage it?

- will Basildon Council think hard about its statutory duty to provide sites for travellers? Will other councils?

- will this case lead to copycat acts of legalised brutality across the country?

- Should it worry us that the Human Rights Act is so marginal in a case like this, while being so vital where you might think interests are much less central to people's lives than they were here?

- Does this show up the limitations inherent in any human rights law intended to operate in a way that complements rather than subverts the status quo?

Tuesday, 4 October 2011


Nothing quite marks the decline of the power of British government more powerfully than the performance of the country’s political leaders during the conference season. In truth Mr Cameron and his colleagues can do next to nothing to affect the country’s current situation, hemmed in as they are not only by their own commitment to austerity but also by the various international, regional and economic realities that inevitably reduce the room for manoeuvre of all minor national powers. The advance messages chosen to inspire the Conservative conference say it all: more bins to be collected; more dead on the roads (so that we can drive faster). And the Human Rights Act of course, the Tory equivalent of Tony Blair’s opposition to fox-hunting – a policy to be wheeled on stage whenever easy applause is required from the cheap seats.

The falseness of the discussion over the Human Rights Act is dispiritingly multi-layered. First most of the scare stories put about by the media are (as I have said often enough before) simply inventions, lies peddled to undermine an Act which has damaged the newspapers’ commercial interest in the invasion of the privacy of various celebrities and sportspersons. The latest nonsense about a prisoner not being walked across to a hearing from a police cell but having to wait hours for transport is, it seems, in truth a story about the inflexibility of privatised contractual commitments rather than about human rights. But this doesn’t matter in the least to the papers, just as it doesn’t ever occur to these same ‘journalists’ (the scare quotes are irresistible) to distinguish between a claim to a human right (to Sky Sports 2 in prison, or pornography) and a successful court action establishing that claim as matter of law.

Second, the supposed negative impact of the legislation on the so-called fight against terrorism is only a bad thing if we want people who are in this country to be sent to states which will in all probability torture and/or kill them. This must be what the Home Secretary Mrs May wants, so why does she not say so honestly? ‘We will expel foreigners to countries where they are likely to be tortured or killed and that is why we want to repeal the Human Rights Act’ would at least be honest – indeed, and hauntingly, it might even get a round of applause among Tory activists. True sometimes the right to a family life is also weighed in the balance as well, but here it is the interests of the children that are often uppermost in the minds of the judges – so again why doesn’t the Home Secretary honestly declare this a price worth paying?

Thirdly, even if the Human Rights Act was repealed it would not make the faintest difference to anything because all the Act requires (including the non-removal of suspects) is already an obligation of membership of the Council of Europe, by whose European Convention on Human Rights (with its European Court of Human Rights) Britain remain bound. The government’s answer to this is to say they are going to push for reform of the Court - but why should the other forty six countries help the Tories out of their foolishly vacuous corner? In any event the reform story is already underway: a high level conference at Interlaken in 2010 has been followed by further discussions under the Turkish chairmanship in April this year, the latter leading to the Izmir declaration which among other things stresses the need for domestic remedies for Convention abuses at home, ie something exactly like the Human Rights Act!

Fourthly even if the Convention did not exist, the probability is that the UK courts would themselves simply draw on a developing tradition of local human rights to impose exactly the same kinds of things on government that the Act allows for today. Indeed without the Act’s explicit guarantee of parliamentary sovereignty, the courts might be emboldened to go further than they are allowed under the current legislation and actually strike down acts of parliament.

Fifthly, there is the effect on the rest of the UK of this very English party’s commitment to repeal of the Human Rights Act: what would the Scots say, or the Welsh or both parts of Ireland given that incorporation was an essential element of the Good Friday Agreement (producing incidentally a very similar human rights law in the Republic of Ireland as well)? Has anybody in the Tory party done any homework on the response of the other nations that make up this supposedly United Kingdom?

Sixthly the Human Rights Act has no negative impact on business; quite the reverse in fact in that it helps business resist unlawful government regulation and also to challenge the exercise of state power negative to its interests.

Seventhly, there is an obvious point about double standards: David Cameron the liberator of Libya brings human rights to the whole world – except those over whom he himself governs.

In truth of course the policy is a charade. The Tories have not the slightest intention of repealing the Human Rights Act. The whole issue has already been kicked into the long grass with a commission having been set up (made up of Helena Kennedy and a bunch of middle-aged and old white men from the Tory and Lib Dems) and it has been told to go away and come back sometime towards the end of 2012. The big thing for this week was to find something which Tory party activists wanted which they could pretend it was the Lib Dems fault that they were not able to deliver.

The Human Rights Act has not a reach into UK law remotely to match that of the institutions of the EU and of the European Court of Justice in particular - and this court is now developing a very strong rights dimension to its jurisprudence – the point is made crystal clear in Aidan O’Neill’s recent superbly researched tome EU law for UK Lawyers (Hart, 2011). Ministers are attacking the wrong Europe and the wrong court. The EU is too big so let’s pick on the softer Europe epitomised in the Strasbourg court and its rather innocuous European Convention. The bully will always turn on the easier target especially if it means there is an appreciative audience to watch the one sided fight.

Am I getting old? Has party politics always been this crudely, self-consciously stupid? It makes a policy for speeding cars and massive bin collections seem almost sensible.

4 October 2011

Wednesday, 28 September 2011


The attempt to remove travellers from Dale Farm in Essex has been the subject of a series of complicated legal actions, some of which are ongoing. Here is a snapshot of the current state of play.

In the 1990s Dale Farm was owned by a Mr Roy Bocking. Even then it wasn’t a farm - more a scrap-yard made up of a hard surface used for storing cars. The property is within the Green Belt and as early as 1992 it was the subject of no fewer than 42 planning enforcement notices related to the unlawful activity that was taking place on it. Hard surfaces and various fences were required to be removed. When the travellers who are at the centre of today’s dispute purchased the place in 2001 they inherited a large amount of hard-standings and these are very likely to have dated from this time; it would seem that (contrary to what the Council was later to tell itself) these early enforcement notices had not been complied with.

New enforcement notices ensued between 2002 and 2004, requiring removal of hardcore or hard standings and subsequent re-seeding of the land, the cessation of residential use on the plots, and the removal of caravans and vehicles and other mobile and portable structures. Apart from one plot however there was no requirement in any of the notices to demolish or remove buildings. And unlike the 1992 enforcement notices, none of the current notices required the removal of unlawfully erected fences.

The issue that has preoccupied the courts this week has been how far the Basildon Council is entitled to go in executing these new enforcement notices. Everyone initially agreed that they are valid (see R (McCarthy) v Basildon District Council [2009] EWCA Civ 13) and that stuff can be done – the question is how much. As Mr Justice Edwards-Stuart put it in his judgment this Monday ([2011] EWHC 2416 (QB)) ‘the residents contend that a wholesale removal of the hard standings (apart from the excepted plots), removal of fixed caravans and demolition of certain buildings and other fixed structures, such as walls, fences and gates, goes beyond the scope of the steps described in the notices’ whereas the Council submits that ‘these objections are misconceived and that, save for [some very few exceptions], it is entitled to carry out what is, in effect, a wholesale clearance of nearly all of the plots on the site.’

At an earlier hearing the week before this latest judgment, the judge asked for the Council to be much more particular about what it was planning to do. Basildon duly put together a more detailed analysis and presented it to Court on Friday the 23rd. The judge heard evidence from both sides on the Friday and gave written judgment two days ago: this is the judgment of Monday 26th mentioned above.

And what has the judge now decided? Yes you have guessed - that another hearing is necessary! This time it is mainly to work out which buildings, if any, can be demolished and which are to be protected, with everything hinging on when they were constructed. It seems that buildings, walls, fences and gates which predate the second set of enforcement notices but which are nowhere mentioned in them will be now safe from destruction - so long as their age can be established, with the onus being on the residents to show that they were there when the notices (which fatally didn’t mention them) were issued and have not been opportunistically (and illegally) added since. As the judge put it in a neatly understated way the enforcement notices ‘may not have been sufficiently precisely drawn’. He is surely right about that: you can’t issue an enforcement notice to remove a ground surface and then nip in and destroy a house to get at it – the second action is not just an enabler of the first, and so in fairness requires its own enforcement notice.

As though all this were not complicated enough, the day before the hearing on the 23rd the residents started a whole new parallel legal action saying the implementation of the enforcement power was itself unlawful, a much wider attack than they had hitherto contemplated and one that is to be decided upon tomorrow (the 29th).

So there you have it - two proceedings ongoing, each enmeshing the Council’s desire to get rid of these travellers in ever increasing amount of red tape and legalistic confusion. No mention of the Human Rights Act, or of international human rights law, or of the rights of travellers. But out of sight is not out of mind, so far as this judge is concerned, I’d say. Behind the pedantry is a truly ethical position, even if it is unspoken: before you wreck people’s lives make sure you have made your legal authority crystal clear. The judgment reminds me of those cases in apartheid South Africa where brave human rights lawyers and the occasional sympathetic judge cleverly used every loophole they could to reduce or undermine the actions of the state agents with whose immoral conduct they were confronted. A worrying analogy to make of a British court decision.

And what next?

I’ll return to this when we have the ruling tomorrow on the validity of the enforcement notice and then (if that goes well for the Council) the final ruling on what exactly they will be able to do at Dale Farm.


Sunday, 11 September 2011


On this day ten years ago, 11 September 2001, we were not to know that the perpetrators of the attacks on New York and Washington had played their best card right at the start of their game. Nothing illustrates the weakness of terrorism more clearly than do the hijackings of that day: spectacular, attention-grabbing, grandly cruel – but from any kind of strategic point of view useless. No troops followed up the attacks. No guerrilla activity was launched anywhere to drive home their advantage. Not even a single decently destructive sleeper group was mobilised to cause further anxious mayhem on America’s home front. Instead a pleased and smug Osama Bin Laden sat back and waited for America to run scared. Like many privileged people before and after him, he mistook wealth for intelligence: the Americas had been cowards before (in Beirut in 1983; in Somali under Clinton) so he knew they would be again. No one seems to have told him that history did not start only when he became an adult. New York and Washington were closer to Pearl Harbour in 1941 than anything in the Middle-East and the Horn of Africa.

Bin Laden had to acknowledge responsibility or the point of his attacks would have been lost: they were communicative not military acts and communication eventually requires talk. But in doing so he was also signing his organisation’s suicide note: once the US stood round to fight he was bound to fail. And when the counter-attack began no action on his part could ever repeat the glory of 11 September. A terrorist campaign is not like a military one, victories being ground out slowly but surely in unglamorous campaigns of fighting. After 11 September, Bin Laden had nothing left to say of sufficient significance to help realise his own self-declared goals. Sure there was an embassy bomb here, a terrible Bali attack there, the London and Madrid attacks, and much else that was awful. But they had no military purpose while also failing to ratchet up the violence in any kind of strategically coherent way. Al Qaida became the bully in the playground pushing the other kids around but not doing much of any real significance or importance to change the way the teachers behaved, an irritant (a made-made Tsunami; a human-induced earthquake) but not a history-changer.

Without the Iraqi invasion and occupation, Al Qaida would have faded sooner from our consciousness. Not even injustice in Palestine (upon which Bin Laden with increasing desperation relied) would have been enough in itself. But Bush’s ‘crusade’ to overthrow Saddam Hussein was the lifeline that kept Bin Laden centre-stage far longer than his capacities or strategic intelligence warranted.

Not for the first time an act of terrorism is more important for what it provoked than for what it was: for a little while it really did seem that the US was going to be able to turn the events on 11 September into a world-changing moment in favour of the Bush-Cheney vision of what America should be - an exceptional nation, dominant abroad and with a supra-constitutional executive branch at home, a country in which human rights, the rule of law and democratic accountability played permanent second fiddle to an endless and endlessly useful ‘war on terror.’ This Orwellian dystopia was not far away. But then came Iraq, the open pleasure taken in torture, the unembarrassed reliance on Guantanamo Bay.

Maybe we should be grateful for Bush’s strategic stupidity: a rich kid like Osama he too thought he could get what he wanted quickly and without opposition. But his actions were so extreme they alienated even his own Republican Supreme Court justices and informed American opinion as well (not to mention the rest of the world).

Liberal values have been recovering from the excesses of the Bush decade but the authoritarian roots put down in that time have been hard to eradicate completely. It is too early to tell but it may be that Bin Laden’s lasting legacy will have been to make democratic authoritarianism seem somehow normal, the burden of proof being placed on those who desire freedom rather than those who care more about what they get away with calling security.

Meanwhile if you want to reflect on somebody who really knew where violence fitted, skip all this weekend’s reflections on Osama Bin Laden and read instead about General Giap, the celebrated Vietnamese fighter, and victor over the French and Americans - still going strong at 100. Now there is the kind of guy whom you would not want to take on. I wonder what he made of Osama and George Junior?

Sunday, 21 August 2011

The Human Rights Act has become for David Cameron what the fox-hunting ban was for Tony Blair: when in a spot of bother with your own support, wheel out something bound to please them.

In his article in the Sunday Express today the prime minister is quite right to note that “[t]here are deep problems in our society that have been growing for a long time: a decline in responsibility, a rise in selfishness, a growing sense that individual rights come before anything else.” He might even be right to say that we "need a concerted fightback against the wrong-headed ideas, bureaucratic nonsense and destructive culture that have led us to this" situation.

So is there to be a renewed effort to tackle corporate lawlessness, or the mindless consumerism that has created a 24 hour, seven-day capitalism so destructive of family life? (It seems "family is back at the top of the agenda.") Are we to begin this reclaiming of the better parts of our past by returning to Sunday trading laws for example, or by instituting a guaranteed living wage so as to give all workers the means to live decently and be better fathers and mothers as a result?

No it’s none of these, or anything like it. It’s those old Tory favourites, welfare spongers and human rights 'abusers': the fightback "means rebuilding the sense of personal responsibility that has been eroded over the years by many things, from the welfare system where work doesn’t pay to the twisting and misrepresenting of human rights." And "though it won’t be easy, though it will mean taking on parts of the establishment, I am determined we get a grip on the misrepresentation of human rights..... We are going to fight in Europe for changes to the way the European Court works and we will fight to ensure people understand the real scope of these rights and do not use them as cover for rules or excuses that fly in the face of common sense."

The prime minister is right that it "won’t be easy" - this is because it is impossible. The days are long gone (if they ever existed) when continental Europe listened carefully to their English masters and did what they were told. The Prime Minister knows this, just as he knows that British bill of rights or no British bill of rights, the UK is not about to withdraw from the Council of Europe (home to the European Convention on Human Rights and the maladjusted court about which he affects to obsess so much) anytime soon. Even he must be aware how utterly foolish he looks when his foreign minister wanders the world preaching human rights like some latter day ethical colonialist while he continues to thrash human rights at home. Maybe the Iranians are right and we need their human rights monitors?

In truth this is just noise, a way of getting the old Europhobes excited, pleasing his geriatric xenophobes and annoying the Lib Dems: a silly season story by pseudo-silly people hoping the nonsense they peddle will divert attention from what they are not doing.

Wednesday, 17 August 2011

Stark raving Starkey

I first encountered David Starkey in the late 1980s. We were debating freedom and civil liberties together in a BBC2 programme chaired by Jonathan Dimbleby. It was the first time I had ever been on TV as I recall, but even then my opponent seemed to be a seasoned media performer, holding forth to all and sundry before the show, assuming (as he always seems to) that everybody would want to hear him speak for as long as he felt like talking.

The debate involved me taking a civil libertarian line critical of the Thatcher government and Starkey saying things weren't at all bad. Then an incredible thing happened. Starkey came out on TV - declared himself Gay but unpersecuted. Dimbleby turned delighted to me, 'so what do you make of that then Dr Gearty, ah ha' (or words to this effect). I sort of said 'okay, good'... Clearly they all knew it was coming, a fab scoop on as live TV.

Then another amazing thing - Starkey didn't know me had never met me but had listened to enough of what I had said to detect an Irish accent, a sort of proper country accent not West Brit or even Dublin. 'Now Conor like me comes from a poor background...' he began to proclaim, on no basis other than how I spoke.

So there you have it: an obsessive self-publicist and casual maker of racist assumptions, even then over twenty years ago.