Friday, 7 September 2012
On being distinguished: a story about an 'influential lawyer'
I first heard I was among The Times ‘Top 100 Lawyers’ on Twitter.
I don’t read the paper, in fact have always treated it as a polemical tract only lightly disguised by learning, so I might never have known. (Not many of my friends read the paper either.)
But there I was, my eleven letters and space among the 140 characters in an enthusiastic Tweet.
One of the ‘Top 100’?
I was excited, and also intrigued. Where was I in the Pantheon? My pulse raced. Maybe even ‘Top Ten’? And what did they say about me? Perhaps there was a profile, interviews with grateful students from the past, a picture even! My mind raced to construct the sort of praise that would finally do me full justice. And deliciously, who was not on? One hundred was not very many - letters of sympathy to the disappointed were for a nano-second of triumphalism forming before me as a real option: ‘Dear Geoffrey, I was so sorry to read in The Times of your omission from the list of top lawyers. I think that is quite wrong, or at very least they should have included the next 100. Let me just say that had I been asked I’d have certainly offered my place to you. Yours, Conor’.
But where to get the paper?
It was late. Left any longer it might disappear into that black hole which is yesterday’s news. I headed off with the dog, eventually finding and buying a copy, but furtively, eschewing my usual (and already purchased) Guardian and reaching into the tabloids as though I were buying Playboy or Penthouse and not the Old Thunderer itself. Good it had the law section; great there was the article - hold on - it’s a bit short. Let’s get home.
Disappointment awaited.
The ‘paper’ paper only had the greatest hits among the 100, the Shami’s and the Brenda Hales, the household names and not the whole bunch. To get these, readers were directed to The Times web-site, which I already knew was hidden from public view, protected by a ‘fire-wall’ demanding payment for entry. I ran upstairs, credit-card in my hand, intent on buying that day before the day ran out - surely only a pound or two.
It wasn’t as simple as that. Reading The Times’s home-page felt like being assailed by a computerised Big Issue vendor crossed with a snake-oil salesman.
You couldn’t buy one; you had to buy a package, involving The Times - possibly for weeks on end, maybe for ever! - and potentially much else besides. There was one moment when I was a button away from Sky’s supreme package which would have led to a Dish on the roof the next morning and cycling live from Budapest in the afternoon. (This was before I had heard of Bradley Wiggins.) None of it was as cheap as buying the newspaper in a shop. I wavered. What was it to be: the minimum package to get at today’s paper, or forget the whole thing. At that very moment I learned something important about myself: I am more mean than I am big-headed. I left it.
That is not to say I did not brood.
Why on the web, with more space, my profile might be longer, even more fulsome, the picture finer?
And the nagging thought I might be ‘top ten’ ate away at me.
Eventually I hit on a plan. I asked the Press Office at LSE (which I knew must be a subscriber) to find and send me the article. Brilliant: money saved and ego massaged. As The Times didn’t allow electronic escapes from their prison of news, this meant I had to wait for an old-fashioned print out to reach my LSE box via the internal mail. The tension!
Eventually the internal envelope arrived, thinner than I’d have expected for an article detailing the talents of one hundred - perhaps they had sent me just the bit about me?
No, this was it.
No organisation of names into any particular order. Just a jumble of people, some I’d heard off some I hadn’t. And there under G, me - and the single explanation for my appearance: ‘Director of the Centre for the Study of Human Rights, LSE’ - a job I gave up three years ago. Horror: I shouldn’t have been there at all! Never mind, no one reads the paper and if I keep quiet my secret is safe.
A month later I had to pitch for a pay rise, as do all profs at LSE on an annual basis. In filling in the form I tried to remember what on earth could justify me getting more money for the job I love doing anyway. Yes, that’s it, I am a top 100 lawyer. I am ashamed to say I put it in. And yesterday I got the letter declining to give me the extra money I didn’t deserve anyway. Never mind, the letter was as warm and gentle a rejection letter as you are ever likely to get: ‘The accolade of recognition as one the United Kingdom’s one hundred most influential lawyers brings great credit to you personally and to the School.’ Good job they don’t read the electronic Times either.
Monday, 13 August 2012
DO AS I SAY NOT AS I DO: HYPOCRISY AND HUMAN RIGHTS
Shortly before he became Prime Minister, David Cameron launched the Conservative Party’s Annual Human Rights Report. In it the Party called in exemplary fashion for an increase in human rights protection around the world. Introducing the Party leader, a young man from the Democratic Republic of the Congo (a former child soldier) praised the Party’s emphasis on ‘responsibilities’ as well as ‘rights’. He then went on to give a moving endorsement of British law, and in particular the Human Rights Act without which – he went on to say – his claim to asylum would never have been successful.
Woops.
No one had told him the Conservatives wanted to repeal the Act, that human rights were for everybody – except those over whom this Party hoped to be able to exercise control.
This kind of double-standard is par for the course so far as human rights are concerned.
The more powerful a state is the easier it finds it to be hypocritical in its conduct without any serious risk of this being noticed or mattering very much if it is.
- For years the US has lectured the world on human rights and occasionally started revolutions elsewhere on the basis of them, all the while resolutely refusing any proper critique of its own human rights record, at home or abroad. (This is not just the obvious – Guantanamo and so on – but extends to such basics as childrens rights and the death penalty and much else besides.)
- Israel is keen to advertise its ‘western values’ through its special trading relationship with the EU and its participation in such events as the Eurovision song context and various European football competitions – but we hear very little from this beacon of democracy and human rights about agitating to be allowed to sign up to the European Convention on Human Rights with its judicial oversight from Strasbourg – which for example even Turkey and Russia have managed to do.
Now the Vatican has joined the list of places which talk a good human rights game abroad but can hardly be said to be practising what it preaches at home.
Towards the end of May the Pope’s butler Paolo Gabriele was arrested, or so it was eventually acknowledged - the Vatican doesn’t do due process like the democratic world. It seems Gabriele was then sent to the Vatican cells where he has been kept through the early months of the Summer, until a sudden announcement (from the press office, rather than any kind of judicial officer) that he had been ‘released on parole’, in fact placed on house arrest. It seems a ‘Promoter of Justice’ has now determined that charges are to be brought, and it seems it will then be a ‘Vatican judge who will then decide whether he will face trial or be acquitted’. According to media reports in Italy, a sentence of 6 years could be meted out, albeit at this point the butler would need to be transferred to an Italian prison. Meanwhile we are assured by Gabriele’s lawyer that the butler had acted entirely on his own and as an ‘act of love’ towards the pope.
Well what would you say, after months in a cell in the sweltering heat of the Vatican and facing a tribunal that might jail you for many years?
Let’s substitute the words ‘Beijing authorities’ here for the Vatican and ‘defiant bishop’ for ‘the Pope’s Butler’ – what a fuss the Vatican would now be making, about freedom of religion, freedom from arbitrary detention, liberty of conscience, and so forth? And as for the ‘act of love’ our hypothetical Bishop is now said to be expressing towards the Communist Party – obviously unreliable, after two months in isolation in detention and with the fear of greater punishment to come?
And it has to be said that even Chinese laws are easier to access than those of the Vatican.
The web site of the Holy See takes you to a Vatican City State site, the section on the governance of which begins with the simple statement that ‘The form of government is that of an absolute monarchy’ [‘La forma di governo รจ la monarchia assoluta’]. Short summaries of the further disposition of power then appear. The ‘Fundamental Law of Vatican City State’ promulgated by John Paul II on 26 November 2000 has more on the nature of the Vatican flag than on the rights of anyone who might be affected by the exercise of executive power. Both the Holy See and the Vatican City State have signed up to various international Conventions - but these have not included anything so specific as the European Convention on Human Rights, with its prohibition on inhumane treatment, its demand for fair trials and its requirement that detention be non-arbitrary.
This insulation from European human rights norms doesn’t matter so long as they keep the butler holed up in the Vatican. But it could become important if Gabriele ends up in an Italian prison.
For Italy is bound by the Convention and - more to the point - an individual can take a case to the Strasbourg court if he or she can show him or herself to be a victim of a violation. There was a case a few years ago in which nullity proceedings in the Vatican which needed to be enforced by Italy were found wanting in a case against that country.
If Gabriele found himself languishing in an Italian prison, at the very least there would be an arguable case that the detention was unlawful, not least because the process that lead to his incarceration had been fundamentally flawed. It is impossible to tell how such a case would go – but clearly the hearings would be very embarrassing to the Vatican and its absolute ruler.
Does the Holy See want to have the Vatican state’s procedures exposed to scrutiny by the very court that has been at the forefront of establishing a secular, multi-cultural identity for Europe?
Expect a retreat by the authorities, aided and abetted by further fulsome apologies from the errant butler. Rome can go back to holding forth on the international stage safe in the knowledge that it has avoided scrutiny of its own behaviour. But a nasty taste of hypocrisy will remain hanging in the air.
Shortly before he became Prime Minister, David Cameron launched the Conservative Party’s Annual Human Rights Report. In it the Party called in exemplary fashion for an increase in human rights protection around the world. Introducing the Party leader, a young man from the Democratic Republic of the Congo (a former child soldier) praised the Party’s emphasis on ‘responsibilities’ as well as ‘rights’. He then went on to give a moving endorsement of British law, and in particular the Human Rights Act without which – he went on to say – his claim to asylum would never have been successful.
Woops.
No one had told him the Conservatives wanted to repeal the Act, that human rights were for everybody – except those over whom this Party hoped to be able to exercise control.
This kind of double-standard is par for the course so far as human rights are concerned.
The more powerful a state is the easier it finds it to be hypocritical in its conduct without any serious risk of this being noticed or mattering very much if it is.
- For years the US has lectured the world on human rights and occasionally started revolutions elsewhere on the basis of them, all the while resolutely refusing any proper critique of its own human rights record, at home or abroad. (This is not just the obvious – Guantanamo and so on – but extends to such basics as childrens rights and the death penalty and much else besides.)
- Israel is keen to advertise its ‘western values’ through its special trading relationship with the EU and its participation in such events as the Eurovision song context and various European football competitions – but we hear very little from this beacon of democracy and human rights about agitating to be allowed to sign up to the European Convention on Human Rights with its judicial oversight from Strasbourg – which for example even Turkey and Russia have managed to do.
Now the Vatican has joined the list of places which talk a good human rights game abroad but can hardly be said to be practising what it preaches at home.
Towards the end of May the Pope’s butler Paolo Gabriele was arrested, or so it was eventually acknowledged - the Vatican doesn’t do due process like the democratic world. It seems Gabriele was then sent to the Vatican cells where he has been kept through the early months of the Summer, until a sudden announcement (from the press office, rather than any kind of judicial officer) that he had been ‘released on parole’, in fact placed on house arrest. It seems a ‘Promoter of Justice’ has now determined that charges are to be brought, and it seems it will then be a ‘Vatican judge who will then decide whether he will face trial or be acquitted’. According to media reports in Italy, a sentence of 6 years could be meted out, albeit at this point the butler would need to be transferred to an Italian prison. Meanwhile we are assured by Gabriele’s lawyer that the butler had acted entirely on his own and as an ‘act of love’ towards the pope.
Well what would you say, after months in a cell in the sweltering heat of the Vatican and facing a tribunal that might jail you for many years?
Let’s substitute the words ‘Beijing authorities’ here for the Vatican and ‘defiant bishop’ for ‘the Pope’s Butler’ – what a fuss the Vatican would now be making, about freedom of religion, freedom from arbitrary detention, liberty of conscience, and so forth? And as for the ‘act of love’ our hypothetical Bishop is now said to be expressing towards the Communist Party – obviously unreliable, after two months in isolation in detention and with the fear of greater punishment to come?
And it has to be said that even Chinese laws are easier to access than those of the Vatican.
The web site of the Holy See takes you to a Vatican City State site, the section on the governance of which begins with the simple statement that ‘The form of government is that of an absolute monarchy’ [‘La forma di governo รจ la monarchia assoluta’]. Short summaries of the further disposition of power then appear. The ‘Fundamental Law of Vatican City State’ promulgated by John Paul II on 26 November 2000 has more on the nature of the Vatican flag than on the rights of anyone who might be affected by the exercise of executive power. Both the Holy See and the Vatican City State have signed up to various international Conventions - but these have not included anything so specific as the European Convention on Human Rights, with its prohibition on inhumane treatment, its demand for fair trials and its requirement that detention be non-arbitrary.
This insulation from European human rights norms doesn’t matter so long as they keep the butler holed up in the Vatican. But it could become important if Gabriele ends up in an Italian prison.
For Italy is bound by the Convention and - more to the point - an individual can take a case to the Strasbourg court if he or she can show him or herself to be a victim of a violation. There was a case a few years ago in which nullity proceedings in the Vatican which needed to be enforced by Italy were found wanting in a case against that country.
If Gabriele found himself languishing in an Italian prison, at the very least there would be an arguable case that the detention was unlawful, not least because the process that lead to his incarceration had been fundamentally flawed. It is impossible to tell how such a case would go – but clearly the hearings would be very embarrassing to the Vatican and its absolute ruler.
Does the Holy See want to have the Vatican state’s procedures exposed to scrutiny by the very court that has been at the forefront of establishing a secular, multi-cultural identity for Europe?
Expect a retreat by the authorities, aided and abetted by further fulsome apologies from the errant butler. Rome can go back to holding forth on the international stage safe in the knowledge that it has avoided scrutiny of its own behaviour. But a nasty taste of hypocrisy will remain hanging in the air.
Monday, 18 June 2012
Conor Gearty, Liberty and Security (Polity Press, forthcoming)
All aspire to liberty and security in their lives but few people truly enjoy them. This book explains why this is so. In what Gearty calls our 'neo-democratic' world, the proclamation of universal liberty and security is mocked by facts on the ground: the vast inequalities in supposedly free societies; the authoritarian regimes with regular elections; and the terrible socio-economic deprivation camouflaged by cynically proclaimed commitments to human rights.
Conor Gearty's book is an explanation of how this has come about, providing also a criticism of the present age which tolerates it. He then goes on to set out a manifesto for a better future, a place where liberty and security can be rich platforms for everyone's life.
The book identifies neo-democracies as those places which play at democracy so as to disguise the injustice at their core. Nor is it just the new 'democracies' that have turned 'neo'; the so-called established democracies are hurtling in the same direction, as is the United Nations.
A new vision of universal freedom is urgently required. Drawing on scholarship in law, human rights and political science this book argues for just such a vision; one in which the great achievements of our democratic past are not jettisoned as easily as were the socialist ideals of the original democracy-makers.
All aspire to liberty and security in their lives but few people truly enjoy them. This book explains why this is so. In what Gearty calls our 'neo-democratic' world, the proclamation of universal liberty and security is mocked by facts on the ground: the vast inequalities in supposedly free societies; the authoritarian regimes with regular elections; and the terrible socio-economic deprivation camouflaged by cynically proclaimed commitments to human rights.
Conor Gearty's book is an explanation of how this has come about, providing also a criticism of the present age which tolerates it. He then goes on to set out a manifesto for a better future, a place where liberty and security can be rich platforms for everyone's life.
The book identifies neo-democracies as those places which play at democracy so as to disguise the injustice at their core. Nor is it just the new 'democracies' that have turned 'neo'; the so-called established democracies are hurtling in the same direction, as is the United Nations.
A new vision of universal freedom is urgently required. Drawing on scholarship in law, human rights and political science this book argues for just such a vision; one in which the great achievements of our democratic past are not jettisoned as easily as were the socialist ideals of the original democracy-makers.
Tuesday, 21 February 2012
Reflections on last night's law night at Occupy LSX
The discussion at Occupy LSX last night was about the role of law in seeking to change the way we understand the society in which we find ourselves.
Interestingly there was far less cynicism about law that there would have been twenty years ago. The excellent David Allen Green produced an anthem to law-adherence which was applauded rather than booed down (as it might have been not so long ago). David was right to remind us that lawlessness is something the rich and powerful are more adept at and able to do with greater impunity, so that we need to be very careful before we write off the rule of law - it remains as David said (quoting the great radical historian E P Thompson) ‘an unqualified public good’.
Why did the rule of law get such an easy ride?
I’d say this is because of the transformation we have seen in the English judiciary in the past two decades, moving from the blind defenders of the status quo that I recall when I first starting teaching civil liberties (in the Thatcher era) to the more nuanced, thoughtful people you encounter on the Bench at the present time.
An example of this was the Occupy LSX appeal in the Court of Appeal (decision on the case due on Wednesday) - it went very well from the occupiers’ point of view:
- they were treated with respect
- their lawyer (John Cooper QC) was warmly congratulated for having taken on the case
- the human rights issues were given time to be developed
- the individual litigants themselves had the chance of a ‘day in court’ that felt meaningful to them and was not just a charade.
This is all excellent news. But it does not mean that the appeal will succeed. I would still say the odds are stacked against.
And of course the judges might change again, losing the humanity which has marked recent appointments and reverting to hard-nosed type (historically the norm).
As we await the Court's ruling in the St Paul's case....
how do we define success?
Already the brave and extraordinary discipline shown by Occupy LSX, the organisational strength of the movement and its intelligent engagement with the issues have marked it out as a triumph. The case - taken against them of course and not by them - has been turned into a public soapbox, giving them a chance to explain their point of view and counter the demonization to be found elsewhere, in some of the Tabloid media, among the more hard-nosed City types and even - saddest of all - in St Paul’s itself where a noisy commitment to social justice has been shown to be risibly skin-deep.
Last night’s event was full of hope - hope that society can be transformed; hope that our culture can find the levels of solidarity that it so desperately needs; hope that equality can be achieved rather than merely spoken about.
But this hope never collapsed into utopian illusion.
Nor did it threaten at any time to morph into a cynical aggressiveness towards a public who refuse to share the dream.
There was an intelligent awareness of the time dreams take to be realised, of the hard work that utopia demands and of the need to be there for the long haul. Minds are not changed by singular actions, however singular. They are changed when society comes to regard these singular actions as the rule rather than the exception, when common sense shifts onto the side of the erstwhile heretic. This can take a long time or happen very quickly indeed. But it can always happen. No situation is so bad that dreams - with courage, determination and patience - cannot be realised.
I was proud to be involved last night and honoured to have been asked to speak.
Interestingly there was far less cynicism about law that there would have been twenty years ago. The excellent David Allen Green produced an anthem to law-adherence which was applauded rather than booed down (as it might have been not so long ago). David was right to remind us that lawlessness is something the rich and powerful are more adept at and able to do with greater impunity, so that we need to be very careful before we write off the rule of law - it remains as David said (quoting the great radical historian E P Thompson) ‘an unqualified public good’.
Why did the rule of law get such an easy ride?
I’d say this is because of the transformation we have seen in the English judiciary in the past two decades, moving from the blind defenders of the status quo that I recall when I first starting teaching civil liberties (in the Thatcher era) to the more nuanced, thoughtful people you encounter on the Bench at the present time.
An example of this was the Occupy LSX appeal in the Court of Appeal (decision on the case due on Wednesday) - it went very well from the occupiers’ point of view:
- they were treated with respect
- their lawyer (John Cooper QC) was warmly congratulated for having taken on the case
- the human rights issues were given time to be developed
- the individual litigants themselves had the chance of a ‘day in court’ that felt meaningful to them and was not just a charade.
This is all excellent news. But it does not mean that the appeal will succeed. I would still say the odds are stacked against.
And of course the judges might change again, losing the humanity which has marked recent appointments and reverting to hard-nosed type (historically the norm).
As we await the Court's ruling in the St Paul's case....
how do we define success?
Already the brave and extraordinary discipline shown by Occupy LSX, the organisational strength of the movement and its intelligent engagement with the issues have marked it out as a triumph. The case - taken against them of course and not by them - has been turned into a public soapbox, giving them a chance to explain their point of view and counter the demonization to be found elsewhere, in some of the Tabloid media, among the more hard-nosed City types and even - saddest of all - in St Paul’s itself where a noisy commitment to social justice has been shown to be risibly skin-deep.
Last night’s event was full of hope - hope that society can be transformed; hope that our culture can find the levels of solidarity that it so desperately needs; hope that equality can be achieved rather than merely spoken about.
But this hope never collapsed into utopian illusion.
Nor did it threaten at any time to morph into a cynical aggressiveness towards a public who refuse to share the dream.
There was an intelligent awareness of the time dreams take to be realised, of the hard work that utopia demands and of the need to be there for the long haul. Minds are not changed by singular actions, however singular. They are changed when society comes to regard these singular actions as the rule rather than the exception, when common sense shifts onto the side of the erstwhile heretic. This can take a long time or happen very quickly indeed. But it can always happen. No situation is so bad that dreams - with courage, determination and patience - cannot be realised.
I was proud to be involved last night and honoured to have been asked to speak.
Thursday, 19 January 2012
Reflections on yesterday's ruling on the St Paul's Protest
All flourishing Christian organisations need to steer a careful course between mammon and morality.
On the one hand there is the wealth, power and influence that flow out of such success, especially if it is millennia old (as with the Roman Catholic church) or backed by the state (as with Anglicanism): how can one bite the hand that feeds one if the food is so good and one’s corpulent body now so dependant? On the other hand there is the unsettling example of Jesus himself – uninterested in money; contemptuous of luxury and of worldly power; devoted to the needy (or as we would say today the disadvantaged).
Some churches solve this problem by assimilating mammon to morality - the good are good because they are rich, and vice versa. This is too obviously special pleading for the more thoughtful faiths for whom, however, the problem remains: how can they be rich and radical at the same time?
These churches usually manage to side-step this dilemma by using their knack of fine rhetoric to call upon others to act. A prime example is the Report Value and Values: Perceptions of Ethics in the City Today issued by the St Paul’s Institute in November last year, an excellent critique of the ethical emptiness of global capital out of the mouths of financial services practitioners themselves.
But by the time this Report came out, the Occupy LSX camp had arrived at St Pauls, sparking a crisis of identity for the great Cathedral that supports this ‘challenging and well-resourced space for conversation’ (as the Archbishop of Canterbury had described the Institute in June 2010).
With eviction proceedings to remove the camp having yesterday produced a judgment against the occupy group, things are likely to get worse before they get better for the cathedral. At the back of everyone’s mind will be the feeling that a rare opportunity has been missed for an heroic religious engagement, for action as well as words.
It had all begun so promisingly.
The camp had only arrived at St Pauls in October last year when the stock exchange proved impenetrable. The police did not initially act, and the Cathedral itself – in the ebullient and civil libertarian form of the Canon Chancellor Giles Fraser – was positively supportive. Services continued. The talk was of a presence until Christmas. Early compromises allowed visits to the Cathedral to continue. The peaceful nature of the protest was acknowledged by all, the atmosphere good. Treated with respect and properly self-regulated, given as Giles Fraser was later to say on Newsnight ‘nice cups of Anglican tea … and a warm embrace’, a camp such as this might well have grown into a benign witnesses to the need for radical change, as the anti-nuclear Greenham common women had done a generation before. And what a gift this would have been to a Church about to launch its critique of city capitalism.
Faced with an open goal, the senior church authorities promptly turned tail and shot into their own net.
The talk was suddenly all of health and safety and of the risk of fire. The advice of professionals in these fields was immediately accepted, leading first to closure of the Cathedral (soon shown to be quite unnecessary) and then to a legal action launched with the intention of expelling the protestors. When the latter action was suspended the more hard-nosed Corporation of London took on the job of clearing out the protestors, the custodians of the Cathedral whispering encouragement while trying to look the other way. By then the Cathedral had lost both Fraser and the Dean himself, Graeme Knowles.
The law appeared stacked against the protestors from the outset and the judgment yesterday can have come as no surprise, with both highways and planning law being deployed by the City to legitimise its effort to get the protestors removed, not just from the areas all around the Cathedral but from the Cathedral land as well.
Of course the protestors pleaded the right to freedom of expression under the Human Rights Act but that measure ws always unlikely greatly to assist. The European Court of Human Rights has been reluctant to extend its protection to those who invade private property in the effort to get heard, and the same has now proved to be true (so far as this case is concerned) of deliberate efforts to obstruct the highway for the same purpose. Lindblom J had the job of assessing the proportionality or reasonableness of the disruption as against its value as speech - and here again the background hostility of the Cathedral was likely to weigh heavily against the Camp.
With this ruling handed down, the case is already shaping up to resemble the Dale Farm debacle, with endless litigation, media summits, appeals, further clarifications of court orders and - eventually - a nasty moment when the camp is physically dismantled by the authorities.
If and when this does come about, the Cathedral will have been primarily responsible. Had it adopted Fraser’s line, the protestors would probably be gone by now (as they had always intended), the Institute’s report on the city would be a widely admired and much read document, and the church’s commitment to economic justice would have been given a tremendous boost.
Instead....
We have this spectacle of a great cathedral acting not as a focus for Christian action but as a grand religious NIMBY.
The chance to undo this damage will not come about - opportunities of the sort offered by the Occupy movement are rare. No doubt there will be many more remarks such as that of the Revd Michael Hampel, Canon Precentor who commented of the Value and Values report that "Action is a crucial goal of the protest camp outside St Paul’s Cathedral. We hope that the telling findings of this report can provide a solid foundation for future engagement and highlight issues where action might be of mutual concern for all sides of the debate.” This kind of comment is so within the comfort zone of the Church to be indistinguishable from complacency.
At Mass at the start of January celebrating the Epiphany, Catholic Christians had Psalm 71:
‘For he shall save the poor when they cry and the needy who are helpless. He will have pity on the weak and save the lives of the poor.’
What kind of an epiphany has St Paul’s offered the world this Christmas season?
On the one hand there is the wealth, power and influence that flow out of such success, especially if it is millennia old (as with the Roman Catholic church) or backed by the state (as with Anglicanism): how can one bite the hand that feeds one if the food is so good and one’s corpulent body now so dependant? On the other hand there is the unsettling example of Jesus himself – uninterested in money; contemptuous of luxury and of worldly power; devoted to the needy (or as we would say today the disadvantaged).
Some churches solve this problem by assimilating mammon to morality - the good are good because they are rich, and vice versa. This is too obviously special pleading for the more thoughtful faiths for whom, however, the problem remains: how can they be rich and radical at the same time?
These churches usually manage to side-step this dilemma by using their knack of fine rhetoric to call upon others to act. A prime example is the Report Value and Values: Perceptions of Ethics in the City Today issued by the St Paul’s Institute in November last year, an excellent critique of the ethical emptiness of global capital out of the mouths of financial services practitioners themselves.
But by the time this Report came out, the Occupy LSX camp had arrived at St Pauls, sparking a crisis of identity for the great Cathedral that supports this ‘challenging and well-resourced space for conversation’ (as the Archbishop of Canterbury had described the Institute in June 2010).
With eviction proceedings to remove the camp having yesterday produced a judgment against the occupy group, things are likely to get worse before they get better for the cathedral. At the back of everyone’s mind will be the feeling that a rare opportunity has been missed for an heroic religious engagement, for action as well as words.
It had all begun so promisingly.
The camp had only arrived at St Pauls in October last year when the stock exchange proved impenetrable. The police did not initially act, and the Cathedral itself – in the ebullient and civil libertarian form of the Canon Chancellor Giles Fraser – was positively supportive. Services continued. The talk was of a presence until Christmas. Early compromises allowed visits to the Cathedral to continue. The peaceful nature of the protest was acknowledged by all, the atmosphere good. Treated with respect and properly self-regulated, given as Giles Fraser was later to say on Newsnight ‘nice cups of Anglican tea … and a warm embrace’, a camp such as this might well have grown into a benign witnesses to the need for radical change, as the anti-nuclear Greenham common women had done a generation before. And what a gift this would have been to a Church about to launch its critique of city capitalism.
Faced with an open goal, the senior church authorities promptly turned tail and shot into their own net.
The talk was suddenly all of health and safety and of the risk of fire. The advice of professionals in these fields was immediately accepted, leading first to closure of the Cathedral (soon shown to be quite unnecessary) and then to a legal action launched with the intention of expelling the protestors. When the latter action was suspended the more hard-nosed Corporation of London took on the job of clearing out the protestors, the custodians of the Cathedral whispering encouragement while trying to look the other way. By then the Cathedral had lost both Fraser and the Dean himself, Graeme Knowles.
The law appeared stacked against the protestors from the outset and the judgment yesterday can have come as no surprise, with both highways and planning law being deployed by the City to legitimise its effort to get the protestors removed, not just from the areas all around the Cathedral but from the Cathedral land as well.
Of course the protestors pleaded the right to freedom of expression under the Human Rights Act but that measure ws always unlikely greatly to assist. The European Court of Human Rights has been reluctant to extend its protection to those who invade private property in the effort to get heard, and the same has now proved to be true (so far as this case is concerned) of deliberate efforts to obstruct the highway for the same purpose. Lindblom J had the job of assessing the proportionality or reasonableness of the disruption as against its value as speech - and here again the background hostility of the Cathedral was likely to weigh heavily against the Camp.
With this ruling handed down, the case is already shaping up to resemble the Dale Farm debacle, with endless litigation, media summits, appeals, further clarifications of court orders and - eventually - a nasty moment when the camp is physically dismantled by the authorities.
If and when this does come about, the Cathedral will have been primarily responsible. Had it adopted Fraser’s line, the protestors would probably be gone by now (as they had always intended), the Institute’s report on the city would be a widely admired and much read document, and the church’s commitment to economic justice would have been given a tremendous boost.
Instead....
We have this spectacle of a great cathedral acting not as a focus for Christian action but as a grand religious NIMBY.
The chance to undo this damage will not come about - opportunities of the sort offered by the Occupy movement are rare. No doubt there will be many more remarks such as that of the Revd Michael Hampel, Canon Precentor who commented of the Value and Values report that "Action is a crucial goal of the protest camp outside St Paul’s Cathedral. We hope that the telling findings of this report can provide a solid foundation for future engagement and highlight issues where action might be of mutual concern for all sides of the debate.” This kind of comment is so within the comfort zone of the Church to be indistinguishable from complacency.
At Mass at the start of January celebrating the Epiphany, Catholic Christians had Psalm 71:
‘For he shall save the poor when they cry and the needy who are helpless. He will have pity on the weak and save the lives of the poor.’
What kind of an epiphany has St Paul’s offered the world this Christmas season?
Wednesday, 18 January 2012
Abu Qatada v UK
First Article 3.
In the Abu Qatada case the European Court of Human Rights has ruled that he is not likely to be tortured or ‘ill-treated’ in Jordan if he is returned there to face the authorities.
Now this is, ultimately, a question of judgment for the court, based on an assessment of probability on the current facts. It could theoretically arise in a case involving Sweden or Norway just as much as it does in relation to Jordan or (for that matter) Libya or Egypt. It doesn’t come up because it never even occurs to anyone that such ill-treatment might occur. The thought, though, is uppermost when these other places are the likely recipients of expelled European residents.
Memoranda of Understanding are just devices for rebutting the inference of likely ill-treatment that is made simply on the basis of the record of countries like these. It is neither logical nor fair to rule them out as evidence simply because their having been volunteered proves irretrievable bad faith.
The weight to give them is quite another matter.
The Strasbourg court has rejected such memoranda in the past. In Abu Qatada, the court accepted that the facts before it (including of course - and I agree critically - the memoranda agreed by the British and the Jordanians as to how the applicant would be treated) did not give rise to the ‘real risk’ of ill-treatment necessary for their jurisdiction to prohibit the removal to kick in. As the Court says ‘its only task is to examine whether the assurances obtained in a particular case are sufficient to remove any real risk of ill-treatment’.
Commentators critical of this ruling have to accept that what they are doing is questioning a judgment of the court on the facts. If the Government were to do this, no doubt the human rights activists would be furious.
Now Article 6.
This ruling is a very strong one and worth defending if this case goes further up the Strasbourg hierarchy, as it may well do.
The Court found that Abu Qatada has successfully ‘discharged the burden that could be fairly imposed on him of establishing the evidence against him [in Jordan] was obtained by torture’ and that he has also therefore shown that there would be ‘a real risk of a flagrant denial of justice if he were deported to Jordan.’ This strikes me as a strong finding and a reflection of how torture (of anyone) should never be allowed to pay.
But….
How can this Article 6 ruling be gratefully received by commentators (based as it is on a finding of a set of facts) while the court’s other ruling on Article 3 (equally based on a finding of facts) is rejected?
Are the critics allowing their feelings to run away with them, turning the Strasbourg court into an a la carte menu from which only the bits agreeable to their previously identified positions are to be selected?
Does such partisanship do the advocacy of human rights any favours?
In the Abu Qatada case the European Court of Human Rights has ruled that he is not likely to be tortured or ‘ill-treated’ in Jordan if he is returned there to face the authorities.
Now this is, ultimately, a question of judgment for the court, based on an assessment of probability on the current facts. It could theoretically arise in a case involving Sweden or Norway just as much as it does in relation to Jordan or (for that matter) Libya or Egypt. It doesn’t come up because it never even occurs to anyone that such ill-treatment might occur. The thought, though, is uppermost when these other places are the likely recipients of expelled European residents.
Memoranda of Understanding are just devices for rebutting the inference of likely ill-treatment that is made simply on the basis of the record of countries like these. It is neither logical nor fair to rule them out as evidence simply because their having been volunteered proves irretrievable bad faith.
The weight to give them is quite another matter.
The Strasbourg court has rejected such memoranda in the past. In Abu Qatada, the court accepted that the facts before it (including of course - and I agree critically - the memoranda agreed by the British and the Jordanians as to how the applicant would be treated) did not give rise to the ‘real risk’ of ill-treatment necessary for their jurisdiction to prohibit the removal to kick in. As the Court says ‘its only task is to examine whether the assurances obtained in a particular case are sufficient to remove any real risk of ill-treatment’.
Commentators critical of this ruling have to accept that what they are doing is questioning a judgment of the court on the facts. If the Government were to do this, no doubt the human rights activists would be furious.
Now Article 6.
This ruling is a very strong one and worth defending if this case goes further up the Strasbourg hierarchy, as it may well do.
The Court found that Abu Qatada has successfully ‘discharged the burden that could be fairly imposed on him of establishing the evidence against him [in Jordan] was obtained by torture’ and that he has also therefore shown that there would be ‘a real risk of a flagrant denial of justice if he were deported to Jordan.’ This strikes me as a strong finding and a reflection of how torture (of anyone) should never be allowed to pay.
But….
How can this Article 6 ruling be gratefully received by commentators (based as it is on a finding of a set of facts) while the court’s other ruling on Article 3 (equally based on a finding of facts) is rejected?
Are the critics allowing their feelings to run away with them, turning the Strasbourg court into an a la carte menu from which only the bits agreeable to their previously identified positions are to be selected?
Does such partisanship do the advocacy of human rights any favours?
Wednesday, 11 January 2012
St Paul's - reflections on the court ruling on eviction
All flourishing Christian organisations need to steer a careful course between mammon and morality.
On the one hand there is the wealth, power and influence that flow out of such success, especially if it is millennia old (as with the Roman Catholic church) or backed by the state (as with Anglicanism): how can one bite the hand that feeds one if the food is so good and one’s corpulent body now so dependant? On the other hand there is the unsettling example of Jesus himself – uninterested in money; contemptuous of luxury and of worldly power; devoted to the needy (or as we would say today the disadvantaged).
Some churches solve this problem by assimilating mammon to morality - the good are good because they are rich, and vice versa. This is too obviously special pleading for the more thoughtful faiths for whom, however, the problem remains: how can they be rich and radical at the same time?
These churches usually manage to side-step this dilemma by using their knack of fine rhetoric to call upon others to act. A prime example is the Report Value and Values: Perceptions of Ethics in the City Today issued by the St Paul’s Institute in November last year, an excellent critique of the ethical emptiness of global capital out of the mouths of financial services practitioners themselves.
But by the time this Report came out, the Occupy LSX camp had arrived at St Pauls, sparking a crisis of identity for the great Cathedral that supports this ‘challenging and well-resourced space for conversation’ (as the Archbishop of Canterbury had described the Institute in June 2010).
With eviction proceedings to remove the camp having yesterday produced a judgment against the occupy group, things are likely to get worse before they get better for the cathedral. At the back of everyone’s mind will be the feeling that a rare opportunity has been missed for an heroic religious engagement, for action as well as words.
It had all begun so promisingly.
The camp had only arrived at St Pauls in October last year when the stock exchange proved impenetrable. The police did not initially act, and the Cathedral itself – in the ebullient and civil libertarian form of the Canon Chancellor Giles Fraser – was positively supportive. Services continued. The talk was of a presence until Christmas. Early compromises allowed visits to the Cathedral to continue. The peaceful nature of the protest was acknowledged by all, the atmosphere good. Treated with respect and properly self-regulated, given as Giles Fraser was later to say on Newsnight ‘nice cups of Anglican tea … and a warm embrace’, a camp such as this might well have grown into a benign witnesses to the need for radical change, as the anti-nuclear Greenham common women had done a generation before. And what a gift this would have been to a Church about to launch its critique of city capitalism.
Faced with an open goal, the senior church authorities promptly turned tail and shot into their own net.
The talk was suddenly all of health and safety and of the risk of fire. The advice of professionals in these fields was immediately accepted, leading first to closure of the Cathedral (soon shown to be quite unnecessary) and then to a legal action launched with the intention of expelling the protestors. When the latter action was suspended the more hard-nosed Corporation of London took on the job of clearing out the protestors, the custodians of the Cathedral whispering encouragement while trying to look the other way. By then the Cathedral had lost both Fraser and the Dean himself, Graeme Knowles.
The law appeared stacked against the protestors from the outset and the judgment yesterday can have come as no surprise, with both highways and planning law being deployed by the City to legitimise its effort to get the protestors removed, not just from the areas all around the Cathedral but from the Cathedral land as well.
Of course the protestors pleaded the right to freedom of expression under the Human Rights Act but that measure ws always unlikely greatly to assist. The European Court of Human Rights has been reluctant to extend its protection to those who invade private property in the effort to get heard, and the same has now proved to be true (so far as this case is concerned) of deliberate efforts to obstruct the highway for the same purpose. Lindblom J had the job of assessing the proportionality or reasonableness of the disruption as against its value as speech - and here again the background hostility of the Cathedral was likely to weigh heavily against the Camp.
With this ruling handed down, the case is already shaping up to resemble the Dale Farm debacle, with endless litigation, media summits, appeals, further clarifications of court orders and - eventually - a nasty moment when the camp is physically dismantled by the authorities.
If and when this does come about, the Cathedral will have been primarily responsible. Had it adopted Fraser’s line, the protestors would probably be gone by now (as they had always intended), the Institute’s report on the city would be a widely admired and much read document, and the church’s commitment to economic justice would have been given a tremendous boost.
Instead....
We have this spectacle of a great cathedral acting not as a focus for Christian action but as a grand religious NIMBY.
The chance to undo this damage will not come about - opportunities of the sort offered by the Occupy movement are rare. No doubt there will be many more remarks such as that of the Revd Michael Hampel, Canon Precentor who commented of the Value and Values report that "Action is a crucial goal of the protest camp outside St Paul’s Cathedral. We hope that the telling findings of this report can provide a solid foundation for future engagement and highlight issues where action might be of mutual concern for all sides of the debate.” This kind of comment is so within the comfort zone of the Church to be indistinguishable from complacency.
At Mass at the start of January celebrating the Epiphany, Catholic Christians had Psalm 71:
‘For he shall save the poor when they cry and the needy who are helpless. He will have pity on the weak and save the lives of the poor.’
What kind of an epiphany has St Paul’s offered the world this Christmas season?
On the one hand there is the wealth, power and influence that flow out of such success, especially if it is millennia old (as with the Roman Catholic church) or backed by the state (as with Anglicanism): how can one bite the hand that feeds one if the food is so good and one’s corpulent body now so dependant? On the other hand there is the unsettling example of Jesus himself – uninterested in money; contemptuous of luxury and of worldly power; devoted to the needy (or as we would say today the disadvantaged).
Some churches solve this problem by assimilating mammon to morality - the good are good because they are rich, and vice versa. This is too obviously special pleading for the more thoughtful faiths for whom, however, the problem remains: how can they be rich and radical at the same time?
These churches usually manage to side-step this dilemma by using their knack of fine rhetoric to call upon others to act. A prime example is the Report Value and Values: Perceptions of Ethics in the City Today issued by the St Paul’s Institute in November last year, an excellent critique of the ethical emptiness of global capital out of the mouths of financial services practitioners themselves.
But by the time this Report came out, the Occupy LSX camp had arrived at St Pauls, sparking a crisis of identity for the great Cathedral that supports this ‘challenging and well-resourced space for conversation’ (as the Archbishop of Canterbury had described the Institute in June 2010).
With eviction proceedings to remove the camp having yesterday produced a judgment against the occupy group, things are likely to get worse before they get better for the cathedral. At the back of everyone’s mind will be the feeling that a rare opportunity has been missed for an heroic religious engagement, for action as well as words.
It had all begun so promisingly.
The camp had only arrived at St Pauls in October last year when the stock exchange proved impenetrable. The police did not initially act, and the Cathedral itself – in the ebullient and civil libertarian form of the Canon Chancellor Giles Fraser – was positively supportive. Services continued. The talk was of a presence until Christmas. Early compromises allowed visits to the Cathedral to continue. The peaceful nature of the protest was acknowledged by all, the atmosphere good. Treated with respect and properly self-regulated, given as Giles Fraser was later to say on Newsnight ‘nice cups of Anglican tea … and a warm embrace’, a camp such as this might well have grown into a benign witnesses to the need for radical change, as the anti-nuclear Greenham common women had done a generation before. And what a gift this would have been to a Church about to launch its critique of city capitalism.
Faced with an open goal, the senior church authorities promptly turned tail and shot into their own net.
The talk was suddenly all of health and safety and of the risk of fire. The advice of professionals in these fields was immediately accepted, leading first to closure of the Cathedral (soon shown to be quite unnecessary) and then to a legal action launched with the intention of expelling the protestors. When the latter action was suspended the more hard-nosed Corporation of London took on the job of clearing out the protestors, the custodians of the Cathedral whispering encouragement while trying to look the other way. By then the Cathedral had lost both Fraser and the Dean himself, Graeme Knowles.
The law appeared stacked against the protestors from the outset and the judgment yesterday can have come as no surprise, with both highways and planning law being deployed by the City to legitimise its effort to get the protestors removed, not just from the areas all around the Cathedral but from the Cathedral land as well.
Of course the protestors pleaded the right to freedom of expression under the Human Rights Act but that measure ws always unlikely greatly to assist. The European Court of Human Rights has been reluctant to extend its protection to those who invade private property in the effort to get heard, and the same has now proved to be true (so far as this case is concerned) of deliberate efforts to obstruct the highway for the same purpose. Lindblom J had the job of assessing the proportionality or reasonableness of the disruption as against its value as speech - and here again the background hostility of the Cathedral was likely to weigh heavily against the Camp.
With this ruling handed down, the case is already shaping up to resemble the Dale Farm debacle, with endless litigation, media summits, appeals, further clarifications of court orders and - eventually - a nasty moment when the camp is physically dismantled by the authorities.
If and when this does come about, the Cathedral will have been primarily responsible. Had it adopted Fraser’s line, the protestors would probably be gone by now (as they had always intended), the Institute’s report on the city would be a widely admired and much read document, and the church’s commitment to economic justice would have been given a tremendous boost.
Instead....
We have this spectacle of a great cathedral acting not as a focus for Christian action but as a grand religious NIMBY.
The chance to undo this damage will not come about - opportunities of the sort offered by the Occupy movement are rare. No doubt there will be many more remarks such as that of the Revd Michael Hampel, Canon Precentor who commented of the Value and Values report that "Action is a crucial goal of the protest camp outside St Paul’s Cathedral. We hope that the telling findings of this report can provide a solid foundation for future engagement and highlight issues where action might be of mutual concern for all sides of the debate.” This kind of comment is so within the comfort zone of the Church to be indistinguishable from complacency.
At Mass at the start of January celebrating the Epiphany, Catholic Christians had Psalm 71:
‘For he shall save the poor when they cry and the needy who are helpless. He will have pity on the weak and save the lives of the poor.’
What kind of an epiphany has St Paul’s offered the world this Christmas season?
Monday, 9 January 2012
Al-Khawaja and Tahery v UK
Surprise – or no surprise at all? The European Court of Human Rights has decided not to precipitate a crisis of authority between itself and the UK Supreme Court.
In the long awaited Grand Chamber decision of Al-Khawaja and Tahery v United Kingdom, decided shortly before Christmas (15 December 2011), 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 these statements are not made in the course of the trial.
An earlier chamber ruling in the case had found against the UK on exactly this point.
It may be worth pausing briefly to remind ourselves of what the Convention says about fair trials. The general guarantee of fairness is in Article 6(1) - ‘In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing.’ Article 6(3)(d) then adds further meat to this by giving a defendant the right ‘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.’
Given these express rights, it might be thought not to have been too surprising that the Chamber of seven had found a breach, indeed had done so unanimously. But the ruling had created quite a storm in Britain. For many it crystallised much of what was wrong with Strasbourg: inflexible, ill-informed about the common law and (for all their talk of margins of appreciation and the like) insensitive to local expertise. The Supreme Court had even disowned it, in R v Horncastle [2009] UKSC 14. Politicians waded in. The popular press - already hostile because of the commercial damage HRA-based privacy law has done them – became even more hostile still. Everyone waited for the ‘verdict’ of the Grand Chamber whose hearing had taken place as long ago as May 2010. That whole year passed and then as 2011 drifted by concern grew. Had the judges forgotten? Were they too scared to act?
Now we know the reason for the long wait: the court was taking especial care. The Grand Chamber has now ruled that these Article 6 entitlements do not inevitably lead to a breach of the Convention where statements of the sort allowed in under UK law play this kind of sole or decisive role. The Chamber was wrong; the UK Supreme Court 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 so as properly to guard against injustice. But crucially there is no automatic breach of Article 6. Fifteen of the judges shared this opinion, with only two dissentients taking the purist line which had proved so attractive to the Chamber first time round. To these two (Judges Sajรณ and Karakaล) the ‘last line of protection of the right to defence is being abandoned in the name of an overall examination of fairness’ – melodramatic perhaps but not less true on that account. On any reading it’s a large-scale watering down of Article 6(3)(d).
The practical effect of this was that Mr Al-Khawaja’s application was dismissed while that of Mr Tahery was upheld: the differences in facts between the two cases meant that the reliance on hearsay in the first was acceptable, but in the second was not.
One of the features of human rights law is its insistence on crossing subject-boundaries while seeming to remaining firmly within public law. It must sometimes be irritating to specialists in other fields to see human rights muscling in on their patch in this way. What do our criminal lawyers think about the ruling? It is a little too early to be sure, but if Horncastle is any guide, they will be delighted. My colleague at LSE Mike Redmayne (our resident expert on the law of criminal evidence) is fairly relaxed about the outcome, seeing in it the probable ‘development of something like a corroboration rule for hearsay.’ Mike goes on:
"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."
The wider importance of the ruling is also obvious to those whose interests lie more in human rights law rather than in criminal procedure.
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. (Accused persons escaping justice through reliance on the death of their victims or their terrified refusal to testify are rarely the most attractive of characters.) 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.
There has been much talk recently about how the Supreme Court should deal with Strasbourg judgments, with judges and politicians as well as academics weighing in.
But this case is a reminder to us all that there is another question as well – about how the Strasbourg court should react to local judgments. Thinking this through is probably what took the court so long: on the one hand it did not want simply to surrender jurisdiction to an anarchy of local tribunals. On the other, well - what did it know about hearsay law in England (and much else, elsewhere as well, you might well say)?
The enduring importance of Al-Khawaja and Tahery may well lie in the short concurring of Nicolas Bratza, the UK judge, in the course of which he remarked:
"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 [in Horncastle] was referring."
If the UK does indeed drift out of all our Europes in the coming difficult years - not impossible given the composition of the current Conservative parliamentary party and the rise of English nationalism – it will be nearly as much of a loss to continental Europe as it undoubtedly will be on the ‘home front’. As Horncastle shows, Europe needs a UK that is engaged, but in a practical, sensible and intellectual rigorous way.
Horncastle set Strasbourg a test which having pleaded special needs and asked for more time, it has now triumphantly passed.
In the long awaited Grand Chamber decision of Al-Khawaja and Tahery v United Kingdom, decided shortly before Christmas (15 December 2011), 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 these statements are not made in the course of the trial.
An earlier chamber ruling in the case had found against the UK on exactly this point.
It may be worth pausing briefly to remind ourselves of what the Convention says about fair trials. The general guarantee of fairness is in Article 6(1) - ‘In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing.’ Article 6(3)(d) then adds further meat to this by giving a defendant the right ‘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.’
Given these express rights, it might be thought not to have been too surprising that the Chamber of seven had found a breach, indeed had done so unanimously. But the ruling had created quite a storm in Britain. For many it crystallised much of what was wrong with Strasbourg: inflexible, ill-informed about the common law and (for all their talk of margins of appreciation and the like) insensitive to local expertise. The Supreme Court had even disowned it, in R v Horncastle [2009] UKSC 14. Politicians waded in. The popular press - already hostile because of the commercial damage HRA-based privacy law has done them – became even more hostile still. Everyone waited for the ‘verdict’ of the Grand Chamber whose hearing had taken place as long ago as May 2010. That whole year passed and then as 2011 drifted by concern grew. Had the judges forgotten? Were they too scared to act?
Now we know the reason for the long wait: the court was taking especial care. The Grand Chamber has now ruled that these Article 6 entitlements do not inevitably lead to a breach of the Convention where statements of the sort allowed in under UK law play this kind of sole or decisive role. The Chamber was wrong; the UK Supreme Court 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 so as properly to guard against injustice. But crucially there is no automatic breach of Article 6. Fifteen of the judges shared this opinion, with only two dissentients taking the purist line which had proved so attractive to the Chamber first time round. To these two (Judges Sajรณ and Karakaล) the ‘last line of protection of the right to defence is being abandoned in the name of an overall examination of fairness’ – melodramatic perhaps but not less true on that account. On any reading it’s a large-scale watering down of Article 6(3)(d).
The practical effect of this was that Mr Al-Khawaja’s application was dismissed while that of Mr Tahery was upheld: the differences in facts between the two cases meant that the reliance on hearsay in the first was acceptable, but in the second was not.
One of the features of human rights law is its insistence on crossing subject-boundaries while seeming to remaining firmly within public law. It must sometimes be irritating to specialists in other fields to see human rights muscling in on their patch in this way. What do our criminal lawyers think about the ruling? It is a little too early to be sure, but if Horncastle is any guide, they will be delighted. My colleague at LSE Mike Redmayne (our resident expert on the law of criminal evidence) is fairly relaxed about the outcome, seeing in it the probable ‘development of something like a corroboration rule for hearsay.’ Mike goes on:
"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."
The wider importance of the ruling is also obvious to those whose interests lie more in human rights law rather than in criminal procedure.
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. (Accused persons escaping justice through reliance on the death of their victims or their terrified refusal to testify are rarely the most attractive of characters.) 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.
There has been much talk recently about how the Supreme Court should deal with Strasbourg judgments, with judges and politicians as well as academics weighing in.
But this case is a reminder to us all that there is another question as well – about how the Strasbourg court should react to local judgments. Thinking this through is probably what took the court so long: on the one hand it did not want simply to surrender jurisdiction to an anarchy of local tribunals. On the other, well - what did it know about hearsay law in England (and much else, elsewhere as well, you might well say)?
The enduring importance of Al-Khawaja and Tahery may well lie in the short concurring of Nicolas Bratza, the UK judge, in the course of which he remarked:
"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 [in Horncastle] was referring."
If the UK does indeed drift out of all our Europes in the coming difficult years - not impossible given the composition of the current Conservative parliamentary party and the rise of English nationalism – it will be nearly as much of a loss to continental Europe as it undoubtedly will be on the ‘home front’. As Horncastle shows, Europe needs a UK that is engaged, but in a practical, sensible and intellectual rigorous way.
Horncastle set Strasbourg a test which having pleaded special needs and asked for more time, it has now triumphantly passed.
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 SAJร AND KARAKAล 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!
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 SAJร AND KARAKAล 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?
Exactly.
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.
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?
Exactly.
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?
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
THE TORIES, THE HUMAN RIGHTS ACT AND THE MAKING OF POLITICAL NOISE
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.
CONOR GEARTY
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.
CONOR GEARTY
4 October 2011
Wednesday, 28 September 2011
WHAT IS REALLY GOING ON AT DALE FARM?
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.
CONOR GEARTY
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.
CONOR GEARTY
Sunday, 11 September 2011
A TALE OF TWO SPOILT KIDS
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?
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.
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.
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.
Monday, 16 August 2010
a new book-as-a-blog
I am launching a new book on the web, on 6 October 2010. The idea is to write regularly about freedom and human rights, inviting comments on the work as I go along. Then when I have all the comments in the material will be revised and published as a book early next year (2011) at LSE's third annual literary festival. More details to follow. What do you make of the idea?
Monday, 1 June 2009
should academic lawyers want to be understood by the general public?
There was a dispiriting moment in the Q and A session after Professor William Twining's excellent address to the Society of Legal Scholars last Thursday, on the need to foster the public understanding of law. An academic colleague described how the business of writing his academic treatise meant he had little time for other, non university stuff, dealing with the media for example, or making submissions to a parliamentary body on a matter on which he is expert. But how many people will read your book, was Professor Twining's reply - and it was left rather hanging in the air. At a time when the public purse is being so closely srutinised, do those of us who make a living off the taxpayer in the higher education field not have some sort of obligation to explain what we do? After all I get a lot more money than an MP, and it strikes me that my accounting for it should include learned books maybe, but well-prepared teaching and efforts at public engagement for certain. Surely there are enough hours around to be able to teach say an average of four or so hours a week (over the year) and write a few words a day for the tiny circle of readers of the specialist stuff, while also being able to help colleagues run the Department and still having enough time left over to be able to engage with the general public as and when the opportunity arises?
Wednesday, 14 January 2009
GAZA
Israel’s attack on Gaza is its consolation prize for not being allowed bomb Iran: like a school bully denied the chance to attack another Form, it has picked on some small kids in the playground so as to satiate its anger. Is there any way that, out of the suffering of the inhabitants of Gaza, something positive can be forged? The key is President Obama, the new head teacher at whom the bully’s message is also aimed: will he cower like the vast majority of his predecessors, more concerned with lobby popularity than with moral purpose, or is there more to him than this? Let us assume Obama knows full well both how shameful is America’s association with Israel and how senseless is his nation’s collusion in such vast criminality. There are ways of marking this without making it explicit and thereby unleashing the pro-Israeli forces against him at too early a stage.
It is already clear that the new Administration desires to re-engage with the global community and to revive its commitment to international law: the ‘war on terror’ will be reconfigured and Guantanamo closed. A rededication of the US to law should also involve a more consensual approach to the UN in general and to Security Council business in particular, and this should include (for example) support for UN investigative missions to regions where egregious violations of human rights and breaches of the UN charter need to be investigated. It should entail signing up to the International Criminal Court – and urging its closest allies to do likewise. Done in this way, US engagement in the international human rights agenda would quickly lead to a re-empowerment of the various forces for good, the rapporteurs, special representatives, committees of experts and so on, that have languished on the margins for so long.
All of this reformist energy would then need to be backed by mechanisms linking US financial and military aid to the newly emerging international legal order, a fresh set of McBride principles of the sort that eventually forced South Africa racism to its knees. And economic and intellectual boycotts would also need to be framed so as to lie in wait for the worst offenders against the new dispensation. Since its application would be general, Obama could do all this without ever mentioning Israel, leaving the consequences to be worked through by various bureaucracies while the ‘phone calls and special pleas of Netanyahu or Livni or Barak or whoever it is go either unreturned or politely fended off with an easy ‘it is out of my hands’. When the screams of the special interests reach dangerous levels, the president may then judge it to be necessary to take the issue to the American people, to discuss openly whether Israel should have a special exemption from the civilised values to which every other true ally and the US itself will by then have signed up. That is not likely to be a debate which the Israeli leadership will especially want.
Dreadful though they are, it is just possible the killings in Gaza may prove to be the beginning of the death rattle of Israel’s disastrous plunge into militant Zionism.
It is already clear that the new Administration desires to re-engage with the global community and to revive its commitment to international law: the ‘war on terror’ will be reconfigured and Guantanamo closed. A rededication of the US to law should also involve a more consensual approach to the UN in general and to Security Council business in particular, and this should include (for example) support for UN investigative missions to regions where egregious violations of human rights and breaches of the UN charter need to be investigated. It should entail signing up to the International Criminal Court – and urging its closest allies to do likewise. Done in this way, US engagement in the international human rights agenda would quickly lead to a re-empowerment of the various forces for good, the rapporteurs, special representatives, committees of experts and so on, that have languished on the margins for so long.
All of this reformist energy would then need to be backed by mechanisms linking US financial and military aid to the newly emerging international legal order, a fresh set of McBride principles of the sort that eventually forced South Africa racism to its knees. And economic and intellectual boycotts would also need to be framed so as to lie in wait for the worst offenders against the new dispensation. Since its application would be general, Obama could do all this without ever mentioning Israel, leaving the consequences to be worked through by various bureaucracies while the ‘phone calls and special pleas of Netanyahu or Livni or Barak or whoever it is go either unreturned or politely fended off with an easy ‘it is out of my hands’. When the screams of the special interests reach dangerous levels, the president may then judge it to be necessary to take the issue to the American people, to discuss openly whether Israel should have a special exemption from the civilised values to which every other true ally and the US itself will by then have signed up. That is not likely to be a debate which the Israeli leadership will especially want.
Dreadful though they are, it is just possible the killings in Gaza may prove to be the beginning of the death rattle of Israel’s disastrous plunge into militant Zionism.
Wednesday, 1 October 2008
The economic collapse
The great good fortune is that these events have taken place before not after the US presidential election: had this happened in March 2009, and had Obama won a tight contest he would have been powerless for a disjointed four years. Now, instead, not only is he more likely to win (if only because, in the welter of real news the Republicans have been unable to mount their usual campaign of concerted character assassination, and so have lost vital weeks of pre-election Attwater activity) but he is also more likely to be able to govern. Expect a great shift in our language towards equality and fairness: socialism may not be back yet, but social justice is.
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