tag:theconversation.com,2011:/us/topics/european-convention-on-human-rights-6392/articlesEuropean Convention on Human Rights – The Conversation2024-01-23T15:07:46Ztag:theconversation.com,2011:article/2216362024-01-23T15:07:46Z2024-01-23T15:07:46ZWhat is rule 39? UK government tells civil servants to ignore European court of human rights on Rwanda deportations<p>The UK government is once again navigating legal and political hurdles over its plan to send asylum seekers to Rwanda. The latest debate is over the emergency bill that legally declares Rwanda a safe place to send refugees (despite the supreme court ruling the opposite).</p>
<p>The government has now told civil servants that, if a minister tells them to, they must <a href="https://www.politico.eu/article/civil-servants-told-to-ignore-european-court-judges/">ignore rule 39 orders</a> from the European court of human rights in Strasbourg. </p>
<p>The court enforces the European convention on human rights, to which the UK and 45 other European countries are party. Rule 39 allows the court to issue interim measures to stop any of these governments from taking action that could or would violate someone’s human rights. </p>
<h2>When is rule 39 used?</h2>
<p>The court uses rule 39 only in urgent, exceptional cases where the person at the heart of the case faces real and irreparable harm to their life and health. Usually, this is when facing extradition or deportation to a country where they may be tortured or killed. Rule 39 measures are sometimes called “pyjama injunctions” because of the late-night nature of some rulings. </p>
<p>The court has been using this power for many years, and states usually comply. The court has only issued a handful of rule 39 orders to the UK. In some years it hasn’t issued any. In 2021 and 2022 it issued <a href="https://public.tableau.com/app/profile/echr/viz/InterimMeasures/OverviewInterimMeasures?publish=yes">five per year</a>. For comparison, in 2022 the court used these measures against Greece 101 times, Poland 64 times and Russia 59 times. </p>
<p>These measures are temporary. They simply stay the execution of extradition or deportation orders so the court can review the case. This is what happened in June 2022 to stop the first planned deportation flight to Rwanda <a href="https://theconversation.com/rwanda-deportations-what-is-the-european-court-of-human-rights-and-why-did-it-stop-the-uk-flight-from-taking-off-185143">from taking off</a>. </p>
<p>The court has also used an interim measure to <a href="https://ukhumanrightsblog.com/2020/08/24/alexei-navalny-evacuated-to-germany-european-court-of-human-rights-orders-interim-measures-against-russia/">secure Russian opposition</a> leader Alexei Navalny’s transfer to Germany for treatment after being poisoned by a nerve agent. In another case, the court prevented the closure of an <a href="https://hudoc.echr.coe.int/eng?i=001-194445">opposition television station in Georgia</a>, which could have violated freedom of speech protections.</p>
<h2>Can rule 39 injunctions be overruled or ignored?</h2>
<p>Because these measures are temporary, rare and often made as a last resort, the court does not have time to present its reasons in detail for granting them. There is also technically no way to formally appeal against them, but the court will lift them if the relevant parties can show the measures are no longer necessary. More often, the measures are lifted when the court delivers its final judgment on the case.</p>
<p>In response to criticism, <a href="https://www.dailymail.co.uk/news/article-10931803/Lord-Sumption-says-method-ECHR-Rwanda-ruling-unsatisfactory-pulling-ridiculous.html">largely from the UK</a>, the court has recently acted to make the process more transparent, deciding that the identity of the judge who issues the measures <a href="https://hudoc.echr.coe.int/eng-press?i=003-7796609-10812486">should be publicised</a>, and the formal judicial decision sent to the parties. These are welcome developments, but may mean slower decision making which could be disastrous for human rights in some cases.</p>
<p>The court is clearly open to improving its practices, but such reforms need to be done in a spirit of collaboration, rather than an outright rejection.</p>
<figure class="align-center ">
<img alt="Home secretary James Cleverley walking past Number 10 Downing Street" src="https://images.theconversation.com/files/570708/original/file-20240122-29-imzeac.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/570708/original/file-20240122-29-imzeac.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=431&fit=crop&dpr=1 600w, https://images.theconversation.com/files/570708/original/file-20240122-29-imzeac.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=431&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/570708/original/file-20240122-29-imzeac.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=431&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/570708/original/file-20240122-29-imzeac.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=542&fit=crop&dpr=1 754w, https://images.theconversation.com/files/570708/original/file-20240122-29-imzeac.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=542&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/570708/original/file-20240122-29-imzeac.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=542&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">James Cleverly is the third home secretary trying to get flights to Rwanda off the ground.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/london-united-kingdom-september-05-2023-2358461525">Fred Duval/Shutterstock</a></span>
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<p>The UK has already been condemned once <a href="https://theconversation.com/illegal-migration-bill-can-the-government-ignore-the-european-court-of-human-rights-204583">for failing to respect a rule 39 order</a>. The court <a href="https://hudoc.echr.coe.int/eng?i=001-97575">prevented British forces</a> from transferring two suspected terrorists over to Iraqi authorities in 2010, as there was a risk they could be sentenced to death. The UK ignored this measure, and the court found that by doing this the UK government violated the European convention on human rights – a significant condemnation in its own right. </p>
<p>Persistent violation of rule 39 measures would be more problematic. Even countries with much worse record of compliance with the court’s orders than the UK have never legally declared that interim measures can be ignored by its ministers. States cannot use domestic law to ignore their obligations under international law. </p>
<p>In extreme cases, persistent violation of human rights can mean that a state is expelled from the Council of Europe, the body that oversees the convention, as <a href="https://www.coe.int/en/web/portal/-/the-russian-federation-is-excluded-from-the-council-of-europe">happened with Russia in 2022</a>. </p>
<h2>The UK and human rights law</h2>
<p>It is difficult to overstate the role the UK played in the creation and functioning of the Council of Europe and the European convention on human rights. The statute of the Council of Europe was signed in London in 1949, and the UK is a founding member. </p>
<p>The prime minister, Rishi Sunak, has vowed not to let <a href="https://www.theguardian.com/uk-news/2023/dec/01/rishi-sunak-wont-allow-foreign-court-to-block-rwanda-plan">“foreign” courts</a> stop the UK from sending asylum seekers to Rwanda. A policy of ignoring rule 39 measures does not mean leaving the European convention on human rights immediately, but it doesn’t look good. </p>
<p>The UK should not be able to pick and choose which decisions of the court to follow, because everyone else could feel enabled to do the same. Similarly, calls from some Conservative politicians to <a href="https://www.theguardian.com/world/2023/aug/09/uk-could-leave-european-convention-on-human-rights-to-stop-channel-migrant-boats">withdraw from the convention</a> altogether arguably undermine the system that great British experts and diplomats helped to build by implying it is not fit for purpose. </p>
<p>Withdrawing would ultimately leave people in the UK without a robust instrument or framework for <a href="https://ukandeu.ac.uk/explainers/the-european-convention-on-human-rights/">challenging violations of their human rights</a>.</p>
<p>The government must make a sober calculation: is ignoring around five interim measures per year worth undermining the most effective international system of human rights protection in the world? I would very much hope not.</p><img src="https://counter.theconversation.com/content/221636/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kanstantsin Dzehtsiarou consults to the Council of Europe. </span></em></p>The UK government must decide if it wants to risk undermining the robust system of human rights protections.Kanstantsin Dzehtsiarou, Professor in Human Rights Law, University of LiverpoolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2076512023-12-21T14:50:53Z2023-12-21T14:50:53ZUK supreme court rules Guantánamo ‘forever prisoner’ can sue the government under English law – here’s why it matters<figure><img src="https://images.theconversation.com/files/566928/original/file-20231220-21-gtpvk.jpg?ixlib=rb-1.1.0&rect=139%2C118%2C3300%2C2178&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/close-shot-razor-wire-on-fence-2511288">Stephanie Swartz/Shutterstock</a></span></figcaption></figure><p>The UK supreme court <a href="https://www.supremecourt.uk/cases/uksc-2022-0083.html">has ruled</a> that a detainee in Guantánamo Bay can sue the UK government under English law over its alleged involvement in his detention and torture. This is the first case concerning the UK government’s liability for its participation in abuses committed by the CIA during the “war on terror”.</p>
<p>Abu Zubaydah brought a claim for damages against the UK government in 2020. The court has not yet ruled on the merits of this claim. Rather, it has ruled on an important, though obscure, part of the case to do with which country’s law applies – English law, or those of foreign countries. The answer, according to the court, is English law.</p>
<p>This means the case can now proceed to trial. It also has implications should the UK ever decide to cut ties with international legal mechanisms like the <a href="https://www.echr.coe.int/european-convention-on-human-rights">European convention on human rights</a> (ECHR).</p>
<h2>Zubaydah’s case against the UK government</h2>
<p>After September 11 2001, the CIA built and operated a global network of secret facilities to detain and interrogate terror suspects. These clandestine “black sites” operated outside the legal systems of the US and other nations where they were located.</p>
<p>Detainees were subjected to what the CIA calls <a href="https://www.intelligence.senate.gov/sites/default/files/publications/CRPT-113srpt288.pdf">“enhanced interrogation techniques”</a> – but what the UN human rights council, rightfully, classifies as <a href="https://www.ohchr.org/sites/default/files/documents/issues/detention-wg/opinions/session95/A-HRC-WGAD-2022-66-Advance-Edited-Version.pdf">torture</a>. Some detainees, despite never facing charges or standing trial for any crime, remain in Guantánamo with no foreseeable prospect of release.</p>
<p>One of these <a href="https://www.theguardian.com/law/2023/may/11/abu-zubaydah-drawings-guantanamo-bay-us-torture-policy?CMP=Share_AndroidApp_Other">“forever prisoners”</a>, Abu Zubaydah, was captured by the CIA in Pakistan in March 2002 on suspicion of being an al Qaeda member. Over the next four years, he was held in black sites in Afghanistan, Guantánamo, Lithuania, Morocco, Poland and Thailand. Since 2006, he has been held in Guantánamo.</p>
<p>Zubaydah is arguing that MI5 and MI6 officers made requests, from their London offices, to their CIA counterparts to interrogate him in circumstances where they knew or ought to have known of his rendition, unlawful imprisonment and torture.</p>
<h2>Which law applies to the case?</h2>
<p>The supreme court judgment addresses a preliminary question that had to be answered before it can be determined whether, and to what extent, the UK government is liable for Zubaydah’s unlawful imprisonment and torture. This is the question of applicable law – whether English law or foreign laws apply to the claim.</p>
<p>When a public officer commits a wrong, there are two main domestic legal avenues for compensating the victim: the <a href="https://www.legislation.gov.uk/ukpga/1998/42/contents">Human Rights Act 1998</a>, which implements the ECHR into UK law, and tort law. </p>
<p>Tort law is the law of civil wrongs, and applies when someone causes harm or loss to another person. If found liable, they must compensate the victim. Because there is no allegation that the UK hosted a CIA black site, this case falls outside the ECHR’s scope. This left Zubaydah only with the option of suing the UK government in tort.</p>
<figure class="align-center ">
<img alt="Close up photo of a statue of Justice, holding the scales of justice" src="https://images.theconversation.com/files/566929/original/file-20231220-21-tol36.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/566929/original/file-20231220-21-tol36.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=299&fit=crop&dpr=1 600w, https://images.theconversation.com/files/566929/original/file-20231220-21-tol36.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=299&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/566929/original/file-20231220-21-tol36.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=299&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/566929/original/file-20231220-21-tol36.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=376&fit=crop&dpr=1 754w, https://images.theconversation.com/files/566929/original/file-20231220-21-tol36.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=376&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/566929/original/file-20231220-21-tol36.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=376&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The question of which law governs this claim has important implications for future cases.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/statue-justice-symbol-legal-law-concept-681265648">r.classen/Shutterstock</a></span>
</figcaption>
</figure>
<p>Tort claims are <a href="https://www.legislation.gov.uk/ukpga/1995/42/part/III">typically</a> governed by the law of the country where the harm occurred. At first glance, Zubaydah’s claim could be governed by the laws of the countries where he was held. However, because the case concerns the exercise of UK sovereign power by UK officers sending requests to the CIA from their London offices, it was not certain whether English law or foreign laws should apply.</p>
<p>The <a href="https://www.bailii.org/ew/cases/EWHC/QB/2021/331.html">high court</a> held that foreign laws applied. The <a href="https://www.bailii.org/ew/cases/EWCA/Civ/2022/334.html">court of appeal</a> disagreed. In a four-to-one decision, the <a href="https://www.supremecourt.uk/cases/docs/uksc-2022-0083-judgment.pdf">supreme court has now</a> dismissed the appeal.</p>
<p>With the preliminary question out of the way, the case will proceed to trial. Zubaydah will have to prove that he was unlawfully imprisoned and tortured, and that the UK government is liable under English law.</p>
<h2>Why does this matter?</h2>
<p>This case is an important example of “satellite litigation”. Legal frameworks in <a href="https://global.oup.com/academic/product/constitutional-torts-and-the-war-on-terror-9780190495282?cc=gb&lang=en&">the US</a> and <a href="https://opil.ouplaw.com/display/10.1093/law/9780198744412.001.0001/law-9780198744412">other countries</a> prevent detainees like Zubaydah from suing the US in US and foreign courts. Instead, they can only bring proceedings against complicit states. Zubaydah has already successfully sued <a href="https://hudoc.echr.coe.int/fre#%7B%22itemid%22:%5B%22001-183687%22%5D%7D">Lithuania</a> and <a href="https://hudoc.echr.coe.int/fre#%7B%22itemid%22:%5B%22001-146047%22%5D%7D">Poland</a> (two locations of CIA black sites) at the European court of human rights.</p>
<p>While it may appear to be a technical issue, the question of applicable law is significant. There is an inherent peculiarity in applying foreign laws to acts committed by UK officials in their London offices.</p>
<p>This is particularly true because of the countries involved. Afghanistan’s legal system is shaped by the Taliban. Guantánamo is part of sovereign Cuban territory, leased to the US in 1903 and currently the subject of an international dispute. We therefore do not know which system of law applies there – pre-communist Cuban law, current Cuban law, or US law.</p>
<p>There is another reason why this case is important. The UK government has discussed the possibility of <a href="https://www.theguardian.com/world/2023/aug/09/uk-could-leave-european-convention-on-human-rights-to-stop-channel-migrant-boats">withdrawing the UK from the European convention on human rights</a>. The now-withdrawn <a href="https://bills.parliament.uk/bills/3227">bill of rights bill</a> aimed, among other things, to exclude the application of the convention to overseas military operations.</p>
<p>Should this ever become law, tort claims would be the only legal avenue to compensate victims of British military and security services’ wrongs committed overseas. This supreme court judgment underscores the importance of English law in such cases. In other words, it is a reminder that English law is still a viable avenue to pursue human rights cases.</p><img src="https://counter.theconversation.com/content/207651/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ugljesa Grusic provided pro bono advice to the claimant’s legal team.</span></em></p>Abu Zubaydah is accusing the UK government of involvement in his torture and unlawful detainment.Ugljesa Grusic, Associate Professor of Private International Law, UCLLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2045832023-04-27T15:17:13Z2023-04-27T15:17:13ZIllegal migration bill: can the government ignore the European court of human rights?<p>The illegal migration bill has been <a href="https://www.theguardian.com/world/2023/apr/26/controversial-uk-asylum-bill-passes-third-reading-in-commons">approved by MPs</a> and now moves to the House of Lords. The controversial bill would make it so that anyone who arrives in the UK irregularly (for example, by small boat) can be removed to their country of origin or a third country (for example, Rwanda). </p>
<p>The bill passed the Commons with a number of amendments, including one that allows the government to disregard “interim measures” issued by the European court of human rights. </p>
<p>The court typically uses <a href="https://echr.coe.int/documents/fs_interim_measures_eng.pdf">interim measures</a> to temporarily suspend an expulsion or extradition of an asylum seeker until their case can be properly heard by the court. These measures are used sparingly, and when the court suspects that sending someone to a particular country could risk violating their right to life, or put them in danger of torture or inhumane treatment. They are not the final say in a particular case – they just ensure that the court has a chance to consider all the evidence before someone is removed.</p>
<p>It is this sort of measure that <a href="https://theconversation.com/rwanda-deportations-what-is-the-european-court-of-human-rights-and-why-did-it-stop-the-uk-flight-from-taking-off-185143">blocked the first deportation flight</a> to Rwanda from taking off in June 2022. </p>
<p>If the bill becomes law in its current form, the UK would be the only country in Europe that legally gives ministers permission to disregard the legally binding order of the European court of human rights.</p>
<p>According to the court’s rule 39, interim measures <a href="https://www.echr.coe.int/documents/pd_interim_measures_intro_eng.pdf">can be used</a> in cases where the victim is facing an imminent and serious threat to their human rights. For instance, the court can ask a state to transfer a prisoner from a prison hospital to the civil one if they cannot be treated properly in the former. Or, to order a state not to discontinue medical treatment if it might violate a patient’s right to life. </p>
<p>The most widespread use of interim measures is in immigration cases. The court can temporarily prevent a migrant from being deported while deciding whether the deportation complies with human rights. If the court finds that the deportation is legal, the interim measures will be lifted and the applicant can be deported. </p>
<p>However, if the court decides that the applicant should not be deported, interim measures ensure that this can actually be carried out – if someone is deported to a country where they face threat of harm, it could be difficult to bring them back. </p>
<p>The court has ruled that failure to comply with <a href="https://hudoc.echr.coe.int/eng?i=001-68183">interim measures</a> violates a state’s obligations under the European convention on human rights (and therefore, international law). The convention, to which the UK is a party, states in Article 34 that parties must ensure the court can effectively deal with applications from alleged victims of human rights violations. Disregarding interim measures would disrupt this.</p>
<h2>Complying with the court</h2>
<p>Despite regular <a href="https://www.dailymail.co.uk/news/article-11703793/We-need-ditch-ECHR-tackle-Channel-migrants-crisis-Brexit-backing-MPs-say.html">criticism of the European court of human rights</a>, the UK has a good record of compliance with the court’s interim measures and final judgments. </p>
<p>Only once has it been condemned for failure to follow an interim measure. In a 2010 <a href="https://hudoc.echr.coe.int/eng?i=001-97575">case</a>, two alleged terrorists arrested by UK troops in Iraq were transferred to the Iraqi authorities despite a court-ordered interim measure preventing it. However, in this case, the government argued that there was no objective opportunity for them to comply. The amendments in the illegal migration bill would give power to the minister to disregard international law by setting aside the court’s interim measures.</p>
<p>More generally, interim measures are very well complied with. To keep compliance high, the court uses them rarely and only when it is strictly necessary. There are <a href="https://hudoc.echr.coe.int/eng#%7B%22documentcollectionid2%22:%5B%22GRANDCHAMBER%22,%22CHAMBER%22%5D%7D">fewer than 50 cases</a> where the court found a state violated the convention by failing to comply with an interim measure. </p>
<p>Russia, which was <a href="https://www.coe.int/en/web/portal/-/the-russian-federation-is-excluded-from-the-council-of-europe">recently expelled</a> from the Council of Europe, is still the leader in this unfortunate ranking, with around 20 judgments delivered against it. Although Russia has regularly failed to comply with interim measures, this practice isn’t part of Russian legislation.</p>
<p>There are some notable instances of compliance with interim measures even in Russia. For instance, when opposition leader Alexei Navalny <a href="https://ukhumanrightsblog.com/2020/08/24/alexei-navalny-evacuated-to-germany-european-court-of-human-rights-orders-interim-measures-against-russia/">was poisoned</a>, the European court of human rights ordered Russian authorities to transfer him to Germany for medical treatment, which they did. </p>
<p>Generally, states take interim measures seriously, and even in cases of failure to comply, usually argue in court that they could not enforce them due to some objective reason. </p>
<h2>Can they do that?</h2>
<p>Put simply, states cannot just disregard valid and ongoing international obligations, such as the UK’s obligations under the European convention on human rights.</p>
<p>However, sometimes states do that. The example of Russia again comes to mind, when its parliament ruled that in certain circumstances the Russian Constitutional Court can set aside the judgments of the European court of human rights. This decision was widely criticised by <a href="https://www.echrblog.com/2016/04/the-russian-response-to-prisoner-voting.html">academics</a>, <a href="https://www.amnesty.org/en/latest/news/2020/06/europerussia-venice-commission-denounces-putin-constitutional-amendments-which-avoid-execution-of-ecthr-rulings/">and international human rights organisations</a>.</p>
<figure class="align-center ">
<img alt="Home Secretary Suella Braverman walking outdoors in front of a black car, holding a red minister's folder under her arm" src="https://images.theconversation.com/files/523207/original/file-20230427-681-mzys49.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/523207/original/file-20230427-681-mzys49.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=397&fit=crop&dpr=1 600w, https://images.theconversation.com/files/523207/original/file-20230427-681-mzys49.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=397&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/523207/original/file-20230427-681-mzys49.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=397&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/523207/original/file-20230427-681-mzys49.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=499&fit=crop&dpr=1 754w, https://images.theconversation.com/files/523207/original/file-20230427-681-mzys49.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=499&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/523207/original/file-20230427-681-mzys49.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=499&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The law would allow ministers to ignore the European court of human rights’ interim measures.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/london-united-kingdom-november-22-2022-2285216867">ITS/Shutterstock</a></span>
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</figure>
<p>The European court of human rights is part of an international judicial system that only works if all parties agree and comply. According to the <a href="https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf">Vienna convention on the law of treaties</a> states cannot use their domestic laws to avoid international treaty obligations. This is exactly what the illegal migration bill now does. </p>
<p>The fact that interim measures are usually complied with shows that they are a respected tool that allows the court to effectively deal with important cases of human rights. They are temporary and can be lifted when a judgment is delivered, but still hold states to binding international obligations. Adopting a legal clause that allows the government to ignore such obligations is a very dangerous precedent that could easily backfire, for example, if the court were to issue interim measures in respect to another member state that the UK government would be in favour of.</p>
<p>To use the football metaphor, imagine a team in the English Premier League suddenly decides not to abide by the offside rule, and introduces this in their team’s statute. This would not work in a match, and the team’s reputation would suffer so much that it would have much less of a say if, for example, a rival team decided to allow players to use their hands.</p><img src="https://counter.theconversation.com/content/204583/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kanstantsin Dzehtsiarou does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The European court has ruled that interim measures are legally binding under international law.Kanstantsin Dzehtsiarou, Professor in Human Rights Law, University of LiverpoolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1863532022-07-18T10:58:24Z2022-07-18T10:58:24ZUK abortion laws are more precarious than they seem – replacing the Human Rights Act could unsettle them further<figure><img src="https://images.theconversation.com/files/474256/original/file-20220715-22-c54j9t.jpg?ixlib=rb-1.1.0&rect=32%2C0%2C5431%2C3637&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/london-england-october-2019-view-on-1535678198">zjtmath / Shutterstock</a></span></figcaption></figure><p>The state of abortion laws in the US has many in the UK wondering about reproductive rights in their own country. While abortion is largely accessible in the UK, its legal status is more precarious than many understand. Whichever government is in power next, it has the ability to either solidify abortion access or put it further into jeopardy. With this in mind, the next prime minister should reconsider plans to replace the Human Rights Act 1998 with the proposed bill of rights.</p>
<p>In June 2022, Justice Secretary Dominic Raab introduced the <a href="https://bills.parliament.uk/bills/3227">bill of rights bill</a>, which, if passed, will repeal and replace the Human Rights Act. When asked about inserting a right to abortion in the bill of rights, Raab said this wasn’t necessary, claiming that abortion is <a href="https://www.theguardian.com/politics/2022/jun/29/dominic-raab-says-right-to-abortion-does-not-need-to-be-in-bill-of-rights">“settled in UK law”</a>. Without the Human Rights Act, however, abortion in the UK is far from settled. </p>
<p>This is because no law created by parliament is ever truly settled. This is a principle of the British constitution known as parliamentary sovereignty. Parliament is free to pass laws on any issue without being limited by an existing law created by a previous parliament, or any court. This differs from the US, where courts can strike down laws if they conflict with the constitution. </p>
<p>Applied to abortion, this means parliament can legislate any new abortion laws it desires. No court of law or authority could prevent parliament from arriving at a new legal position that would restrict or prohibit abortion access. </p>
<p>The legal status of abortion access in the UK, through the <a href="https://www.legislation.gov.uk/ukpga/1967/87/contents">Abortion Act 1967</a>, is more precarious than common understanding. Having an abortion is still a criminal act. A <a href="https://www.legislation.gov.uk/ukpga/Vict/24-25/100/crossheading/attempts-to-procure-abortion">19th-century law</a>, which remains in place, states that any woman who intends to cause her own miscarriage commits a criminal offence that can result in life imprisonment. </p>
<p>The Abortion Act merely creates a limited exception when two doctors agree that the abortion is necessary and approve the procedure within 24 weeks of conception. At least two women in England and Wales are <a href="https://www.thetimes.co.uk/article/2d9c2058-0501-11ed-bcb4-08dbdb6c5639?">currently being prosecuted</a> for illegally procuring abortions.</p>
<p>Separate legislation, passed in 2019, <a href="https://www.legislation.gov.uk/uksi/2020/345/contents/made">removes criminality for abortion in Northern Ireland</a>. Still, due to the principle of parliamentary sovereignty, this legislation lacks any degree of permanency. The right to access abortion in Northern Ireland remains as fragile as in the rest of the UK. </p>
<p>The law granting a right to abortion access in Northern Ireland is re-voted on every year in the House of Commons. Votes in <a href="https://votes.parliament.uk/Votes/Commons/Division/798">2020</a>, <a href="https://votes.parliament.uk/Votes/Commons/Division/1022">2021</a> and <a href="https://votes.parliament.uk/Votes/Commons/Division/1324">2022</a> show that around 25% of MPs are consistently opposed to abortion rights. If political winds change in the future, this percentage might increase and bring forward the true extent of this fragility. </p>
<h2>Abortion and the Human Rights Act</h2>
<p>Raab’s claim that abortion law is settled might have been based on European human rights law, which applies in the UK through the Human Rights Act. However, this would be incorrect – European human rights law, so far, has offered only minimal protection to abortion access. The right to private and family life enshrined in Article 8 of the European Convention on Human Rights (ECHR) protects personal autonomy and bodily integrity. </p>
<p>Because the issue of abortion raises difficult moral questions over when life begins, the European Court of Human Rights has left it to each country to determine its own laws on abortion. This approach has been applied to other issues <a href="https://hudoc.echr.coe.int/eng#%7B%22appno%22:%5B%2230141/04%22%5D,%22itemid%22:%5B%22001-99605%22%5D%7D">including same-sex marriage</a>. Baroness Hale, during her time on the supreme court, remarked that the European court has given countries an “unusual” amount of leeway to determine their abortion laws. </p>
<p>The European court has made it clear that where a pregnancy would directly endanger a pregnant person’s life, their safety must take priority over the life of the foetus. Nonetheless, the court has yet to intervene in countries with restrictive abortion laws, such as <a href="https://oltem1bixlohb0d4busw018c-wpengine.netdna-ssl.com/wp-content/uploads/2022/06/15381_CRR_Europe_V8.pdf">Malta, Liechtenstein or Poland</a>.</p>
<h2>Domestic law and the power of the courts</h2>
<p>Domestic human rights law, on the other hand, offers some support to Raab’s claim of abortion being settled. In a <a href="https://www.supremecourt.uk/cases/docs/uksc-2017-0131-judgment.pdf">2018 ruling</a>, the UK supreme court held that domestic laws restricting access to abortions in cases of rape, incest or fatal foetal abnormality would be interpreted as being incompatible with the ECHR right to private and family life. </p>
<p>This interpretation of the right to privacy effectively limited Parliament’s ability to pass more restrictive abortion laws. But it was only possible due to the Human Rights Act, which grants UK judges interpretive powers when it comes to human rights law.</p>
<figure class="align-center ">
<img alt="Dominic Raab mid-speech in front of a UK flag and an EU flag" src="https://images.theconversation.com/files/474270/original/file-20220715-24-bp9ebb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/474270/original/file-20220715-24-bp9ebb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/474270/original/file-20220715-24-bp9ebb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/474270/original/file-20220715-24-bp9ebb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/474270/original/file-20220715-24-bp9ebb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/474270/original/file-20220715-24-bp9ebb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/474270/original/file-20220715-24-bp9ebb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Justice Secretary Dominic Raab is spearheading the plan to replace the Human Rights Act.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/brussels-belgium-july-19-2018-britains-1137924083">Alexandros Michailidis / Shutterstock</a></span>
</figcaption>
</figure>
<p>The new bill of rights purports to enhance UK courts’ ability to make judgments like the one described above, by declaring that European Court of Human Rights case law will no longer be “part of domestic law”.</p>
<p>But what it actually does is restrict the courts’ powers when it comes to the European Convention on Human Rights. The bill only permits the creation or expansion of new rights when domestic courts view it as being “beyond reasonable doubt” that the European Court will change its previous decided position on the issue. </p>
<p>There is presently not enough evidence to suggest “beyond reasonable doubt” that the European court will change its current legal framework on abortion. This would mean that under the bill of rights, a future UK supreme court would be prevented from reading Article 8 as requiring access to abortion in certain cases, as it did in 2018. Domestic courts would no longer be able to protect access to abortion in the UK and would return the issue almost entirely to parliament and political winds.</p>
<p>While there might be some support for the claim that abortion is sufficiently protected in law, this will be greatly undermined if the Human Rights Act is repealed. The next prime minister could commit to including a provision within the Bill of Rights specifically aimed at protecting abortion rights – or even better, reverse course entirely and keep the Human Rights Act in place.</p><img src="https://counter.theconversation.com/content/186353/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The next prime minister has an opportunity to make abortion rights more or less secure in UK law.Jamie Fletcher, Lecturer in Law, Bournemouth UniversityKarolina Szopa, Lecturer in Law, Bournemouth UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1851432022-06-15T16:41:52Z2022-06-15T16:41:52ZRwanda deportations: what is the European Court of Human Rights, and why did it stop the UK flight from taking off?<p>A flight chartered to send asylum seekers from the UK to Rwanda as part of a new government policy was grounded following an intervention by the European Court of Human Rights (ECHR). The plan to deport asylum seekers for processing in Rwanda is intended, the government says, to deter people from making the dangerous journey across the Channel to the UK. This first flight had been scheduled to take off on June 14 with just seven passengers on board. There had been more due to fly but legal action enabled them <a href="https://www.independent.co.uk/news/uk/politics/rwanda-deportation-flight-home-office-b2099601.html">to be removed</a>. </p>
<p>This decision has already sparked a very negative reaction from the <a href="https://www.theguardian.com/politics/live/2022/jun/15/rwanda-flight-asylum-echr-priti-patel-boris-johnson-pmqs-uk-politics-latest">UK government</a>, which says that plans for future flights are already underway.</p>
<p>The ECHR issued specific interim measures ordering the UK authorities not to remove one of the asylum seekers for three weeks after the final decision of judicial proceedings that are ongoing in the UK. This in turn triggered national legal mechanisms that prevented the other six from flying to Rwanda. Although the measures indicated are temporary, the ECHR can choose to extend them. </p>
<p>Home secretary Priti Patel pointed out in Parliament that the court did not declare the Rwanda deportation plan <a href="https://www.theguardian.com/politics/live/2022/jun/15/rwanda-flight-asylum-echr-priti-patel-boris-johnson-pmqs-uk-politics-latest#maincontent">to be unlawful</a>. This is correct – the ECHR has not made any such determination. At this point, it only stated that the national and European courts should be given more time to decide this case properly. However, if the UK were to deport the person concerned before the ECHR measures expire or are lifted, it would then be violating international law.</p>
<h2>What is the ECHR?</h2>
<p>The ECHR is a Strasbourg-based human rights court that deals with compliance with the <a href="https://www.echr.coe.int/documents/convention_eng.pdf">European convention on human rights</a>. It can deliver legally binding judgments when the human rights of any person under the power of any of its member states are violated – including right to life, prohibition of torture, right to privacy and others. The court is not connected to the European Union, and after Brexit, the UK remains a member.</p>
<p>The court usually deals with violations that happen on the territory of the member state, but with exceptions. Deportation is one such exception – the court can prevent deportation of a person who is under the risk of being tortured in the receiving country. This is a well-established principle of human rights law.</p>
<p>Normally, victims apply to the ECHR after the alleged violation has already happened. However, in some cases when the situation is ongoing, the court can order authorities to act to prevent irreparable harm. When it comes to deportation, the logic is that removing a person from a state that adheres to the European convention on human rights to one that doesn’t makes it very difficult to ensure that their rights will be properly protected.</p>
<p>In this case, the court cited concerns raised by the UN high commissioner for refugees that asylum seekers moved to Rwanda as part of the plan will not be able to access “fair and efficient procedures” related to their refugee status claims. There was no guarantee that they would be able to return to the UK from Rwanda to take part in future judicial proceedings relating to their case. </p>
<p>Interim measures such as these are are legally binding on states but they are only issued in extreme and rare cases in order to prevent serious harm. The court’s interim measures were instrumental in saving Russian opposition activist <a href="https://ukhumanrightsblog.com/2020/08/24/alexei-navalny-evacuated-to-germany-european-court-of-human-rights-orders-interim-measures-against-russia/">Alexei Navalny when he was poisoned in Russia</a>. Most often, interim measures are used when there is a threat of extradition or deportation to the country where the victims could be ill-treated. </p>
<h2>What’s next?</h2>
<p>Both Patel and prime minister Boris Johnson stated that they are not going to back off from the <a href="https://www.theguardian.com/politics/live/2022/jun/15/rwanda-flight-asylum-echr-priti-patel-boris-johnson-pmqs-uk-politics-latest#maincontent">Rwanda deportation plan</a>. This probably means that the UK authorities are considering withdrawing from the European convention on human rights altogether. This is something the government has been discussing <a href="https://www.theguardian.com/politics/2016/apr/25/uk-must-leave-european-convention-on-human-rights-theresa-may-eu-referendum">for some time</a>. </p>
<p>While no state has withdrawn from the convention in the past 50 years, if the UK does so it would follow Vladimir Putin’s Russia, which will cease to be a party to the European convention this year. Before Russia, the last withdrawal was Greece, which did so temporarily under the rule of a <a href="https://greekreporter.com/2022/04/21/april-21-1967-greek-junta-places-country-in-shackles/">military junta</a> in <a href="https://voelkerrechtsblog.org/parting-paths-russias-inevitable-exit-from-the-council-of-europe/">1967</a>. These are hardly good examples to follow. </p>
<p>The UK helped to build the Strasbourg system of human rights protection after the second world war and has continuously supported it. Hopefully, it will not be the one which destroys it.</p><img src="https://counter.theconversation.com/content/185143/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kanstantsin Dzehtsiarou does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The court blocked the UK from deporting asylum-seekers to Rwanda until after cases in the UK are decided.Kanstantsin Dzehtsiarou, Professor in Human Rights Law, University of LiverpoolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1737882021-12-15T16:25:23Z2021-12-15T16:25:23ZFive takeaways from the UK government’s proposal to replace the Human Rights Act<p>After years of <a href="https://www.bbc.co.uk/news/uk-politics-29466113">discussing</a> its intention to replace the Human Rights Act, the UK government has opened a <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1040409/human-rights-reform-consultation.pdf">consultation on a new bill of rights</a> to replace it.</p>
<p>The Conservative party has had an uneasy relationship with the Human Rights Act over the years. A promise to repeal and replace it with a British bill of rights has appeared in election manifestos more than once. After Brexit, it was almost inevitable that a Conservative government would move to repeal the Human Rights Act – the act imported the European Convention on Human Rights (ECHR) into domestic law, giving it a particularly strong influence. </p>
<p>The proposed <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1040409/human-rights-reform-consultation.pdf">overhaul</a> is intended in general to distance the UK from European ideas of human rights, allowing common law ideas and parliamentary determinations far greater leeway. Here are five elements to pay attention to:</p>
<h2>Deportation and rights claims</h2>
<p>The government says that “foreign criminals” are exploiting human rights claims, such as the right to respect for family life (Article 8 in the ECHR), to resist deportation. It suggests that the new bill of rights could include provisions limiting “a certain category of individuals” from avoiding deportation on human rights grounds.</p>
<blockquote>
<p>it could be clarified that certain rights, such as the right to family life, cannot prevent the deportation of a certain category of individuals, for example, offenders sentenced to a term of imprisonment, or persons involved in terrorist-related activity.</p>
</blockquote>
<p>In practice, this would likely mean that non-citizen offenders convicted of more serious offences, such as rape, could be more easily deported, regardless of their family life as established in the UK. But it would be a dramatic and discriminatory move since such people would be debarred from raising Article 8 arguments. Some individuals could still potentially bring claims at the Strasbourg court. Meanwhile, citizens convicted of the same offences not only could not be deported, but could also presumably rely on family life arguments.</p>
<h2>A ‘permission stage’ in rights claims</h2>
<p>Another proposal is to introduce a “permission” stage, which would require claimants to demonstrate that they had suffered “a significant disadvantage” before a claim could be heard in court. This is intended to filter out “frivolous or spurious” cases, which the government says “devalue” the concept of human rights. It considers allowing exceptional cases to proceed even though they fail to meet the threshold, where there is a highly compelling reason to do so.</p>
<p>If included and applied literally, this provision would mean that a number of claims failing to meet that threshold (including from people trying to escape deportation or extradition) would never be heard. </p>
<p>This proposal is clearly modelled on a similar “admissibility” provision in Article 35 of the ECHR. But Article 35(3) states that even if a significant disadvantage is not shown, the case could still be examined on its merits if it raises important human rights issues. </p>
<p>If the new bill of rights does not include the “highly compelling reason” provision suggested, Strasbourg’s permission stage would become less stringent than the domestic one. This means that some cases denied a full hearing domestically could still be heard at Strasbourg –- the exact opposite of what the government is hoping to achieve.</p>
<h2>Strengthening press freedom</h2>
<p>Another proposal aims to enhance press freedom of expression and limit “interference” with the press over privacy claims. This proposal was clearly prompted partly by the court of appeal’s recent judgment <a href="https://theconversation.com/meghan-markle-mail-on-sunday-loses-appeal-in-privacy-case-the-judgment-explained-173095">favouring privacy</a> in Meghan Markle’s case against the Mail on Sunday. </p>
<p>The consultation document suggests that Strasbourg has tended to give priority to the right to privacy (Article 8) over free speech. In contrast, the Human Rights Act directs courts to have “particular regard to the importance” of the right to freedom of expression (Article 10), but that it does not give primacy to press freedom.</p>
<p>The government’s proposal is to include a provision in the bill of rights directing courts to give Article 10 priority when in conflict with Article 8 or with wider public interests. Again, privacy claimants who lose a domestic case could still bring their case to Strasbourg.</p>
<h2>Right to trial by jury</h2>
<p>The ECHR does not provide a specific right to a jury trial. The government suggests that there may be scope to include one in the bill of rights, given its “significant historical place” in UK legal tradition.</p>
<p>The new right would apply differently in the devolved administrations since its application would depend on the relevant law in each jurisdiction. This inclusion would be relatively uncontroversial, although it would not be likely to be of great significance in practice. It could also accord the bill of rights a British, rather than a European, feel. </p>
<h2>Protecting public authorities</h2>
<p>The government wants to give greater protection to public authorities (such as police forces or government departments) that it says need to be freer to “perform their functions”. This would make it more difficult for people to bring human rights cases against these bodies. Instead, the issue of possible incompatibility of the legislative provision in question (under which the authority was acting) with the ECHR could be considered at a later point by Parliament. </p>
<p>This would be intended to create an environment whereby such authorities would have more power to carry out their functions as Parliament intended. To do this it has suggested changing the wording of the Human Rights Act to prevent human rights claims against public authorities.</p><img src="https://counter.theconversation.com/content/173788/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Helen Fenwick does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The proposals for a new bill of rights are now out for consultation.Helen Fenwick, Professor of Law, Durham UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1555232021-02-18T13:54:14Z2021-02-18T13:54:14ZMyanmar: trial of Aung San just the latest in a long line of unlawful prosecutions by illegal regimes<p>Myanmar’s military coup leaders have reportedly put the country’s lawfully elected leaders <a href="https://www.nytimes.com/2021/02/16/world/asia/myanmar-trial-aung-san-suu-kyi.html">on trial</a>. It is understood that the proceedings, apparently held in secret and without giving the defendants the benefit of legal representation, could last for up to six months. </p>
<p>Aung San Suu Kyi, Myanmar’s state counsellor and de facto leader, faces charges of illegally importing two walkie talkies and of contravening a natural disaster management law by interacting with a crowd during the coronavirus pandemic. These carry a maximum penalty of six years in jail. Win Myint, the country’s deposed president, has been charged with breaching the natural disaster restrictions, which – if he is found guilty – could mean up to three years imprisonment.</p>
<hr>
<p><em>You can hear more about the events which led up to Myanmar’s military coup in the second episode of our new podcast, <a href="https://theconversation.com/uk/topics/the-conversation-weekly-98901">The Conversation Weekly</a> – the world explained by experts. Subscribe wherever you get your podcasts.</em> </p>
<iframe src="https://player.acast.com/60087127b9687759d637bade/episodes/myanmars-collective-fury?theme=default&cover=1&latest=1" frameborder="0" width="100%" height="110px" allow="autoplay"></iframe>
<p>The worrying developments in Myanmar echo political or show trials of the past, raising fundamental questions about what “law” actually is. How does an unlawfully established government legitimately use the law against its opponents? Indeed, can any rules adopted or imposed by a dictatorship be said to be “laws” at all?</p>
<h2>Nuremberg trials</h2>
<p>This question has bothered legal theorists and human rights lawyers for a very long time. For example the German theorist <a href="https://www.britannica.com/biography/Gustav-Radbruch">Gustav Radbruch</a> argued that actions authorised by abhorrent Nazi “law” were <a href="https://www.researchgate.net/publication/228229762_Gustav_Radbruch_vs_Hans_Kelsen_A_Debate_on_Nazi_Law">not, in fact, lawful</a> and so the post-war prosecution of people for their actions in Nazi Germany would not be unfair. </p>
<p>Similar issues arose at the <a href="https://www.theguardian.com/law/2020/nov/15/the-slate-will-never-be-clean-lessons-from-the-nuremberg-trials-75-years-on">Nuremberg International Military Tribunal</a> in 1945 because the trial of senior Nazis there was the first time anyone had ever been put on trial for “crimes against humanity” and “waging aggressive war”. The defence argued that those crimes were not clearly established in international criminal law when they were said to have been committed.</p>
<figure class="align-center ">
<img alt="Former high-ranking Nazi officials in the dock at the Nuremberg War Crimes Trials, 1946." src="https://images.theconversation.com/files/384990/original/file-20210218-28-9fgiel.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/384990/original/file-20210218-28-9fgiel.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=412&fit=crop&dpr=1 600w, https://images.theconversation.com/files/384990/original/file-20210218-28-9fgiel.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=412&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/384990/original/file-20210218-28-9fgiel.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=412&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/384990/original/file-20210218-28-9fgiel.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=517&fit=crop&dpr=1 754w, https://images.theconversation.com/files/384990/original/file-20210218-28-9fgiel.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=517&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/384990/original/file-20210218-28-9fgiel.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=517&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">‘Natural law’: high-ranking Nazi officials on trial at Nuremberg.</span>
<span class="attribution"><span class="source">US National Archives</span></span>
</figcaption>
</figure>
<p>The judgment at Nuremberg made the not entirely convincing claim that it should have been obvious that these categories of international crime already existed, but it also stated that the rule against retrospective prosecution might not apply in the face of the scale of Nazi atrocities in any event.</p>
<h2>Arguments and amnesties</h2>
<p>More recently, the communist regimes of central and eastern Europe toppled and the newly democratic states joined the Council of Europe and signed the European Convention on Human Rights. Many of these states were, for the first time, now able to embark on the prosecution of people for their actions under communism, such as suppressing the failed <a href="http://news.bbc.co.uk/2/hi/uk_news/6069582.stm">1956 uprising</a> in Hungary, or killing people seeking to cross the <a href="https://www.bbc.co.uk/archive/the-berlin-wall/zdphd6f">Berlin Wall</a> to flee communist East Germany. </p>
<p>Defendants have argued not just that their prosecution was unfair because a prosecution was unforeseeable when they carried out the alleged crimes – but also that it violates the European Convention, which confirms that people can only be convicted of offences that existed at the time they were allegedly committed. The European Court of Human Rights has tended to take the <a href="https://www.echr.coe.int/Documents/Guide_Art_7_ENG.pdf">position</a> that where the actions were clearly contrary to international law, it does not matter if they were permitted by a state’s national legislation under communism.</p>
<p>This does not mean, however, that globally we are free of the notion of show trials and political trials that, like those in Myanmar, claim to be lawful but are anything but. Even in Europe, the hastily convened and poorly organised military “trial” and resulting execution of <a href="https://www.huffpost.com/entry/trial-and-execution-the-d_b_401497">Romanian dictator Nicolae Ceaușescu</a> and his wife on Christmas Day 1989 is a clear example. </p>
<p>The trial of <a href="https://www.amnesty.org/en/documents/mde14/044/2006/en/">Saddam Hussein</a> at the Supreme Iraqi Criminal Tribunal, an Iraqi national court, came close: it has been alleged that there was political interference and that the potentially very strong case against him was inadequately set out. Moreover, defence witnesses and lawyers were intimidated – and several were murdered. But even a weak trial was probably at least a step up from extrajudicial targeted killing, for example by <a href="https://www.theatlantic.com/international/archive/2018/08/trump-war-terror-drones/567218/">drone strikes</a>, that we have seen ordered by presidents and prime ministers of all political persuasions throughout the “war on terror”. </p>
<p>At the other extreme, there are examples of crumbling regimes attempting to provide themselves with an amnesty against prosecution – such as when military dictatorships established in Argentina and Chile in the 1970s came to an end in <a href="https://www.hrw.org/news/2005/06/14/argentina-amnesty-laws-struck-down">1983</a> and <a href="https://www.hrw.org/legacy/campaigns/chile98/chile-justice-anly.htm">1990</a>, respectively. Indeed, the Argentine Supreme Court only struck down their amnesty law in 2005. That ruling took inspiration from the case law of the <a href="https://www.corteidh.or.cr/index.cfm?lang=en">Inter-American Court of Human Rights</a>, which has ruled that such amnesties violate the human rights of surviving victims and dead victims’ next of kin.</p>
<p>There are, however, more democratic conditional amnesties, such as those granted in South Africa during the process of “Truth and Reconciliation” after the fall of apartheid: the <a href="https://www.justice.gov.za/trc/">South African Truth and Reconciliation Commission</a>, led by Archbishop Desmond Tutu, accepted over 1,000 applications for amnesty – in return for the applicant agreeing to testify to the Commission.</p>
<p>Back to the issue of Myanmar, it can only be hoped that the military government shows some restraint in its use and abuse of “the law”. But, given the country’s track record of violence, and <a href="https://www.bbc.com/news/world-asia-56094649">the growing protests against its coup</a>, it is questionable for how long even the pretence of acting according to the law will last.</p><img src="https://counter.theconversation.com/content/155523/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>James Sweeney is a Research Fellow of the Foreign Policy Centre <a href="https://fpc.org.uk/">https://fpc.org.uk/</a></span></em></p>‘Show trials’ by dictatorships have repeatedly been shown to have no basis in law.James Sweeney, Professor, Lancaster Law School, Lancaster UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1297342020-01-24T11:41:49Z2020-01-24T11:41:49ZBosses using tech to spy on staff is becoming the norm, so here’s a realistic way of handling it<figure><img src="https://images.theconversation.com/files/311159/original/file-20200121-117962-8ljl32.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Gotcha. </span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-illustration/employee-monitoring-workplace-surveillance-concept-group-747181753">Lightspring</a></span></figcaption></figure><p>Workplace surveillance sounds like the stuff of nightmares, but we are having to get used to it. In a sign of the times, the European Court of Human Rights <a href="https://www.lexology.com/library/detail.aspx?g=7293ae72-a731-4379-9107-8cfcc3251608">has just ruled</a> that a supermarket in Barcelona was entitled to fire employees after catching them stealing on CCTV cameras that they didn’t know were installed. This overturned a decision by the court’s lower chamber that the cameras had breached the employees’ <a href="https://www.echr.coe.int/Documents/Convention_ENG.pdf">human rights</a>. </p>
<p>Yet hidden cameras are almost quaint compared to some of the ways in which employers are now monitoring their staff. They are resorting <a href="https://www.businessinsider.com.au/workplace-surveillance-employee-monitoring-methods-ways-face-scanning-microchips-big-data-2019-9">to everything</a> from software that digitally scans workers’ emails to smart name badges that track their whereabouts. There are even <a href="https://www.newscientist.com/article/dn28560-head-tracker-knows-what-youre-doing-and-helps-you-multitask/">head scanners</a> in development that can monitor workers’ levels of concentration. According to <a href="https://www.businessinsider.com.au/workplace-surveillance-employee-monitoring-methods-ways-face-scanning-microchips-big-data-2019-9">one recent analysis</a>, around half of employers are using some form of non-traditional surveillance on staff, and the numbers are growing fast. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/310661/original/file-20200117-118359-1tm0rss.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/310661/original/file-20200117-118359-1tm0rss.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/310661/original/file-20200117-118359-1tm0rss.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/310661/original/file-20200117-118359-1tm0rss.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/310661/original/file-20200117-118359-1tm0rss.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/310661/original/file-20200117-118359-1tm0rss.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/310661/original/file-20200117-118359-1tm0rss.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/310661/original/file-20200117-118359-1tm0rss.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Big Brother is paying you.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/laptop-computer-being-watched-office-by-290998688">Brian A Jackson</a></span>
</figcaption>
</figure>
<p>Even tech employees are getting worried – witness Google workers <a href="https://www.technologyreview.com/s/614623/google-spying-employees-calendar-extension-surveillance-workplace-labor-law-nlra-nlrb/">recently accusing</a> their employer of building a browser extension to automatically notify managers about anyone attempting to arrange staff meetings. They claimed that it was intended to prevent staff from potentially trying to form a union. The <a href="https://www.theverge.com/2019/10/23/20929524/google-surveillance-tool-accused-employee-activism-protests-union-organizing">company denied</a> the accusations. </p>
<p>But if high-tech workplace surveillance is looking more and more unavoidable, what should we do about it? Before we go any further down this road, it’s time to weigh up the possibilities. </p>
<h2>The Man is everywhere</h2>
<p>Many <a href="https://www.tuc.org.uk/research-analysis/reports/i%E2%80%99ll-be-watching-you">fear</a> that technologies like wearable tech, digital cameras and artificial intelligence <a href="https://www.theguardian.com/commentisfree/2019/oct/15/the-dominos-pizza-checker-is-just-the-beginning-workplace-surveillance-is-coming-for-you">are turbocharging</a> staff <a href="https://monthlyreview.org/2019/02/01/new-means-of-workplace-surveillance/">monitoring</a>. Some would probably ban such practices outright. After all, most of us want to be free to do our work as we see fit. Yet in reality, employers have always monitored how workers perform. Why ban the new technology and not all such practices? The obvious answer is that we can’t: if all forms of monitoring were banned, how would organisations even function?</p>
<p>Even just to repel the newer forms of workplace surveillance will require huge sustained pressure on politicians and corporations. This seems unlikely, particularly when the culture is already established: most of us are willing to share our lives with the world via social media and allow tech corporations to harvest the data in exchange. </p>
<p>One compromise might be to only allow workplace surveillance where workers opt in. But what would stop employers from insisting that workers sign a consent form as a requirement of the job? You could ban companies from making this mandatory, but it probably wouldn’t work. Workers would still fear that not signing would reduce their job security and cause them to miss out on promotions and other opportunities. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/310663/original/file-20200117-118337-wgexrh.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/310663/original/file-20200117-118337-wgexrh.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/310663/original/file-20200117-118337-wgexrh.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=405&fit=crop&dpr=1 600w, https://images.theconversation.com/files/310663/original/file-20200117-118337-wgexrh.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=405&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/310663/original/file-20200117-118337-wgexrh.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=405&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/310663/original/file-20200117-118337-wgexrh.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=509&fit=crop&dpr=1 754w, https://images.theconversation.com/files/310663/original/file-20200117-118337-wgexrh.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=509&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/310663/original/file-20200117-118337-wgexrh.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=509&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">‘Wait till I get my hands on worker A651B’.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-vector/business-person-holding-long-paper-do-1464579962">Leremy</a></span>
</figcaption>
</figure>
<p>What about regulating the technology? Allowing it only to enhance employee wellbeing and not to monitor productivity, for instance. Such rules might be possible, but they will mean difficult compromises. One option would be to allow employees access to whatever information is gathered on them, for example.</p>
<p>On balance, well designed regulations and constant vigilance against abuses and workers’ rights being eroded is probably about the best we can hope for. Just as you can’t uninvent the atom bomb, you can’t easily put surveillance technology back in its box. If this sounds very stoical, it is also worth reflecting on a few possible consolations. </p>
<h2>Diamonds in the dirt?</h2>
<p>The firms that develop surveillance software <a href="https://blog.statustoday.com/so-you-care-about-employee-wellness-prove-it-44650a535762">often emphasise</a> the potential for tracking employer wellbeing. We shouldn’t dismiss this too easily. Is it possible that it could catch instances where workers are unhappy or depressed and enable an employer to react appropriately, for example? Could it even spot someone who is suicidal and help instigate a crucial intervention?</p>
<p>Equally, some uses of new technology might actually be less objectionable than existing practices. If AI is being used to monitor your facial expressions or to gauge your attitude from the tone of your voice, it might have fewer biases than a human manager. It won’t make judgements because it is feeling threatened or doesn’t like you and it certainly won’t be lecherous towards you. It might just be that workers can learn to play these things to their advantage. </p>
<p>Also, let’s not forget that the main aim of monitoring employees is to make them more productive. People might actually be willing to sign up for some form of high-tech monitoring if they knew it was likely to improve their productivity. If it showed them ways to make more money for every hour they worked, for example, that might be attractive to them. There might be an analogy here in the ways in which athletes use different monitors to improve their performance. </p>
<p>If people were made more productive in enough workplaces, it should increase national and even global economic productivity. This is what drives economic growth. It should then lead to higher pay, greater profits and more reinvestment in jobs and innovation. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/310662/original/file-20200117-118359-8hkjym.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/310662/original/file-20200117-118359-8hkjym.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/310662/original/file-20200117-118359-8hkjym.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=412&fit=crop&dpr=1 600w, https://images.theconversation.com/files/310662/original/file-20200117-118359-8hkjym.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=412&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/310662/original/file-20200117-118359-8hkjym.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=412&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/310662/original/file-20200117-118359-8hkjym.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=518&fit=crop&dpr=1 754w, https://images.theconversation.com/files/310662/original/file-20200117-118359-8hkjym.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=518&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/310662/original/file-20200117-118359-8hkjym.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=518&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Fitter, happier, more productive.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-vector/workplace-security-guard-watching-video-surveillance-338044973">Marharyta Pavliuk</a></span>
</figcaption>
</figure>
<p>You might counter that these economic gains will be concentrated towards the few, trickling up rather than down. The rest of us might just feel more observed and more stressed. This is certainly a risk. But maybe it could be mitigated if the monitoring also underpinned a more progressive tax system that redistributed the gains from this technology to lower paid workers. </p>
<p>I have argued elsewhere that it would be better to tax people according to their hourly income than their annual earnings. For reasons I <a href="https://dougstaxappeal.blogspot.com/2014/08/what-is-hourly-averaging.html">explain here</a>, it would allow you to pay higher wages to lower paid workers and to put a greater share of the tax burden on higher paid workers without taking away their incentive to work harder. </p>
<p>One of the main objections to such a system is that it’s hard to check whether everyone is working the number of hours that they claim. Government access to workplace surveillance data could be used to verify this. And this takes me back to my broader point: if we can’t beat the rise of employee surveillance, we must find ways to make the best of it instead. The private sector tends to lead the way in developing and exploiting technology for profit; workplace surveillance could be harnessed to distribute economic gains more equitably.</p><img src="https://counter.theconversation.com/content/129734/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Douglas Bamford does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>From wearables with monitoring chips to face scanners that assess your contentment, workplace surveillance seems to be going in one direction.Douglas Bamford, Tutor in Philosophy and Political Economy, University of OxfordLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1176362019-05-27T12:40:23Z2019-05-27T12:40:23ZCaster Semenya: the legal and ethical issues that should concern us all<figure><img src="https://images.theconversation.com/files/276098/original/file-20190523-187169-ry853r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Caster Semenya at the IAAF Diamond League athletics meeting in Doha, Qatar, 03 May 2019.</span> <span class="attribution"><span class="source">Noushad Thekkayil/EPA</span></span></figcaption></figure><p>Early last year the <a href="https://www.iaaf.org/home">International Association of Athletics Federations</a> (IAAF) introduced regulations requiring South African 800m Olympic champion <a href="https://www.theguardian.com/sport/caster-semenya">Caster Semenya</a> – and other middle distance runners with differences of sex development – to lower their naturally high levels of testosterone. </p>
<p>In February 2019 Semenya’s legal team argued that the policy was invalid. But in May the <a href="https://www.tas-cas.org/en/index.html">Court of Arbitration for Sport</a> <a href="https://www.theguardian.com/sport/2019/may/01/caster-semenya-loses-landmark-legal-case-iaaf-athletics">ruled</a> that discrimination in sport is legal provided it is justified. In July, a Swiss court backed the IAAF’s ruling and she was <a href="https://www.theguardian.com/sport/2019/jul/30/caster-semenya-blocked-defending-800-metres-title-athletics-world-championships">barred from competing</a> at the World Championships in Doha.</p>
<p>The way in which the IAAF has gone about dealing with Semenya raises serious legal and ethical concerns. And Semenya isn’t the only athlete involved. This is an issue that goes beyond just the difference of sex development. It goes to the fundamental root of human dignity, of privacy of every athlete who participates at the World Championships.</p>
<p>There are ethical concerns about the way in which the research was conducted that led to the decision. The legal concerns revolve around serious fundamental rights concerns, in particular in the way a number of female athletes have been treated. </p>
<p>In a <a href="https://www.sportsandtaxation.com/2017/01/you-can-play-as-long-as-you-dont-win-legal-perspectives-on-the-regulations-pertaining-to-the-participation-of-women-with-hyperandrogenism-in-womens-athletics/">paper</a> I wrote two years ago – “You can play as long as you don’t win: Legal perspectives on the regulations pertaining to the participation of women with hyperandrogenism in women’s athletics” – I explored the big ethical and legal problems I believe are involved in Semenya’s case, as well as those of dozens of other women. </p>
<p>My view is that some women are being singled out because they are different. If Semenya looked different, if she was a blonde bombshell or if she didn’t win, we wouldn’t be having this debate today. </p>
<p>My big concern is that if this ruling by the Court for Arbitration in Sport remains unchallenged, this way of thinking and behaving might filter into the <a href="https://www.olympic.org/the-ioc">International Olympic Committee</a>, the overarching body that regulates sport. That, in turn, will affect all its affiliations. These include the national Olympic committees and international federations like the IAAF and Fifa and the national associations under them.</p>
<p>That’s fundamentally wrong.</p>
<h2>The ethics question</h2>
<p>The first problem lies in the way in which the IAAF conducted the research on which the regulations were purportedly based. </p>
<p>At an event like the World Athletics Champonships, the IAAF will be responsible for conducting anti-doping tests. It will set up anti-doping control stations and collect the samples from athletes. </p>
<p>As part of the process athletes who enter agreements to participate in World Athletics Championships will also give consent to the IAAF to conduct these tests. Part of that consent is also that they will, in terms of the rules, keep these samples for up to 10 years. They can re-test later for substances but they can also conduct research on anti-doping matters. </p>
<p>That’s important.</p>
<p>What happened in practice was that in 2011 and 2013 the IAAF instructed athletes to give both urine and blood samples. The reason given was that they were developing what is called a biological passport. This is an athlete’s biological profile that’s developed over a period of time. A sudden anomaly could indicate that there’s a doping or some other issue.</p>
<p>The problem is that IAAF passed these samples onto its medical commission, which conducted its own research to determine the hormone levels of the athletes. </p>
<p>The argument being forwarded by the IAAF is that this is about doping. But the World Anti-Doping Agency stated in the Dutee Chand case before the Court of Arbitration for Sport that the regulations on hyper-androgenism or difference of sex development had nothing to do with anti-doping. </p>
<p>This raises the question: if biological samples that have been collected for one purpose by one entity are passed onto another entity to do research for which consent has not been given, is this a lawful use of that sample?</p>
<p>The basis of modern ethical biological research and medical treatment is the <a href="https://www.wma.net/policies-post/wma-declaration-of-helsinki-ethical-principles-for-medical-research-involving-human-subjects/">Declaration of Helsinki</a>. Though not an internationally legally binding document, it’s nevertheless set the standard for a lot of countries, including South Africa, that have developed their own biomedical laws.</p>
<p>In South Korea – where the tests took place – the Helsinki Declaration led to the adoption of the Bioethics and Safety Act. This states that to conduct any form of biomedical research you need the informed consent of the individuals. But none of the athletes – and I have spoken to a number who have participated at these championships – have been informed these samples could be used on hormone research.</p>
<p>Lots of countries have similar rules. For example Monaco, where the IAAF is based, has a strong requirement that there must be proper, informed consent. </p>
<p>One thing all of these laws have in common is that the consent can be withdrawn at any stage and there should be no penalty for that. And it’s a criminal offence if one does not obtain the proper, informed consent.</p>
<p>This issue has been raised repeatedly with the IAAF throughout the process. But to no avail.</p>
<p>I’m still to see that there is a single form or indication that any athlete has been properly informed of the nature of the research conducted, who will conduct the research, what the possible consequences are, what it means for the athlete and how their identity is being protected in the process.</p>
<p>The IAAF has not been able to produce any of this. And the Court of Arbitration for Sport dismissed these arguments and considered all the evidence that had been collected in spite of the lack of informed consent. </p>
<h2>Human rights</h2>
<p>The second major issue relates to massive human rights concerns.</p>
<p>The rights I’m referring to are set out in the <a href="https://www.echr.coe.int/Documents/Convention_ENG.pdf">European Convention on Human Rights</a>, in particular Articles 2 and 8. </p>
<p>Let me begin with Article 8 which I believe should have been applied and was in fact raised before the court. It provides that everyone has the right to respect for private and family life. In the case of <a href="https://swarb.co.uk/solomakhin-v-ukraine-echr-15-mar-2012/">Solomakhin v Ukraine</a>, for example, the European Court of Human Rights ruled that any compulsory medical intervention, even if it was of a minor importance, constituted an interference with this right. </p>
<p>Effectively coercing a healthy athlete into taking hormone treatment is certainly a compulsory medical intervention. They can argue that she has the choice. But there is no choice.</p>
<p>For its part, Article 2 of the European Convention on Human Rights and Biomedicine provides that the interest of welfare of each human being takes precedence over the interest of society. </p>
<p>Even the IAAF’s <a href="https://www.iaaf.org/about-iaaf/documents/constitution">constitution</a>, in article 3, gives a commitment to human rights with ethical values, while the Olympic Charter is against any form of discrimination and is for the promotion of women, equality of men and women, sport for all.</p>
<p>These have all been laid bare as empty promises.</p>
<p><em>Correction: The article has been corrected to clarify that the World Anti-Doping Agency (WADA) was not responsible for the collection and handling of the anti-doping samples at the 2011 and 2013 IAAF World Championships and the ethical concerns raised are not attributable to WADA. The author apologises to WADA for this oversight and any embarrassment or inconvenience it may have caused.</em></p><img src="https://counter.theconversation.com/content/117636/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Steve Cornelius receives funding from the National Research Foundation. He was part of the legal team which presented the case for Athletics South Africa before the Court of Arbitration for Sport. </span></em></p>If the Semenya ruling by the Court for Arbitration in Sport remains unchallenged, this way of thinking and behaving might filter into the International Olympic CommitteeSteve Cornelius, Professor of Private Law, University of PretoriaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1172022019-05-15T13:57:15Z2019-05-15T13:57:15ZUK military amnesty for historic prosecutions could breach international human rights law<p>The UK’s new defence secretary, Penny Mordaunt, has been quick to stamp her authority on the office by announcing plans to <a href="https://www.theguardian.com/uk-news/2019/may/15/mordaunt-vows-introduce-amnesty-military-veterans">introduce an amnesty</a> on historical prosecutions for UK military veterans. She has also announced her support for the UK to opt out of the European Convention on Human Rights (ECHR) in future military engagements.</p>
<p>Having already lost one MP in protest <a href="https://www.bbc.co.uk/news/uk-politics-48209591">over the prosecution of soldiers</a>, this move is likely to prove popular with the Conservative grassroots, particularly with a leadership election campaign looming. But it is also likely to breach the UK’s international human rights obligations and set up a clash between the UK and the European Court of Human Rights, which adjudicates on alleged breaches of the ECHR. </p>
<p>The <a href="https://www.echr.coe.int/Documents/Guide_Art_15_ENG.pdf">ECHR allows states</a> to opt out – or derogate – their human rights obligations when there is “a war or other public emergency threatening the life of the nation”. While on the face of it, an overseas armed conflict sounds like it would meet this definition, it must be remembered that these conflicts must threaten the life of the UK. As I have argued in my research, it is difficult to see how UK military campaigns in Iraq or Afghanistan <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2942210">were necessary to protect the life of the UK</a>. No state has ever derogated from the ECHR for such an overseas conflict so this would be an unprecedented step to take. </p>
<p>A further difficulty with the proposals is that even if an emergency is valid, a state cannot derogate from rights such as the right to life or the prohibition on torture and inhuman and degrading treatment. What this means is that a declaration of a public emergency means the UK cannot avoid its obligations for unlawful acts of war and other breaches of human rights – for example, torture. It must also be noted that deaths resulting from lawful acts of war are already not a breach of the right to life – so a derogation from the ECHR on this ground is therefore unnecessary.</p>
<h2>Amnesties</h2>
<p>The government has also suggested an “amnesty” for soldiers for possible crimes committed while on duty. This would take the form of a “presumption against prosecution” for offences committed more than ten years ago – but it excludes Northern Ireland. </p>
<p>The ECHR places an obligation on states to investigate breaches of the right to life or the prohibition on torture. Without this duty, states could simply refuse to investigate alleged rights abuses and victims would be left with no possibility for redress and closure. This obligation is particularly important in armed conflict situations where disappearances, killings and other egregious human rights abuses are liable to occur at the hands of state actors. The difficulty with the government’s amnesty proposal is that it may not be compatible with the UK’s duty under the ECHR to investigate breaches of the right to life or prohibition of torture. </p>
<p>There is a case for amnesties to be allowed in instances following complex peace negotiations and delicate political transitions. In South Africa, for example, amnesties were granted to people who participated in a <a href="http://www.justice.gov.za/trc/">Truth and Reconciliation Commission</a>. Prosecution was thus waived so people came forward and told the truth. In this way, families could get closure and society could begin the healing process. </p>
<p>The South African amnesty is fundamentally different from an amnesty that is for the simple purpose to escape liability, however. For an amnesty to have any chance of being compatible with the ECHR, it must be accompanied by an effective investigation into serious human rights abuses. But even then, the European Court of Human Rights may still find a breach. </p>
<p>A further difficulty with barring prosecutions after ten years is that it incentivises the state to drag its heels and not properly investigate a breach of human rights. Justice delayed is justice denied and this proposal further compounds this issue. Nor more so is this evident than in the UK, where the Supreme Court recently held that there has <a href="https://www.theguardian.com/uk-news/2019/feb/27/pat-finucane-inquiry-fell-below-human-rights-standards-judges-rule">still not been an effective investigation</a> into the murder of the Belfast solicitor Pat Finucane, some 30 years after his death. And while Northern Ireland has been exempted from the government’s amnesty proposals, <a href="https://www.theguardian.com/uk-news/2019/may/15/mordaunt-vows-introduce-amnesty-military-veterans">many in the Conservative Party are unhappy with this</a>. </p>
<h2>Set for a showdown</h2>
<p>It is difficult to see how the government’s proposals, vague as they are at the moment, can be compatible with the UK’s international human rights obligations. What is foreseeable, however, is that the government’s proposals may lead to a showdown with the European Court of Human Rights. </p>
<p>While the UK has clashed with the court before, most notably over the issue of prisoner voting, which was <a href="https://www.theguardian.com/politics/2017/dec/07/council-of-europe-accepts-uk-compromise-on-prisoner-voting-rights">resolved to an extent</a>. Using such a minor issue as grounds for leaving the jurisdiction of the European Court of Human Rights may not have proved that popular. </p>
<p>What may provide more attractive political ground would be to leave the jurisdiction of the court if one of its judgments were framed as an attack on “our boys overseas”. What is frequently not mentioned, however, is that many of the human rights cases against the Ministry of Defence <a href="http://ukscblog.com/case-comment-smith-ors-v-ministry-of-defence-2013-uksc-41/">are actually taken by British soldiers and their families</a>, arguing that sending them into battle with faulty equipment or negligent planning breached their rights. Regardless of this inconvenient truth, human rights bashing is likely to continue to be a popular sport in British political life and the stage is set for a showdown in the near future.</p><img src="https://counter.theconversation.com/content/117202/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alan Greene does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Soldier amnesty plans pose grave challenges to human rights – and set the stage for a future showdown with the European Court of Human Rights.Alan Greene, Senior Lecturer in Law, University of BirminghamLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1113682019-02-12T12:39:54Z2019-02-12T12:39:54ZUK Human Rights Act is at risk of repeal – here’s why it should be protected<figure><img src="https://images.theconversation.com/files/257987/original/file-20190208-174864-14c2595.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-vector/vector-cartoon-illustration-crowd-human-hands-1176270310?src=uHWPQFIJuCjx1kfJSPG0Ng-1-6">cosmaa/Shutterstock</a></span></figcaption></figure><p>There have long been attempts to “scrap” the <a href="https://www.equalityhumanrights.com/en/human-rights/human-rights-act">Human Rights Act</a> 1998, which incorporates the European Convention on Human Rights (ECHR) into UK law. But while none have gained traction to date, parliamentarians have recently <a href="https://www.parliament.uk/business/lords/media-centre/house-of-lords-media-notices/2019/january-2019/human-rights-act-is-not-safe-after-brexit/">raised concerns</a> that the government could be wavering in its commitment to the act post-Brexit.</p>
<p>The House of Lords’ EU justice sub-committee said in January that <a href="https://www.parliament.uk/business/lords/media-centre/house-of-lords-media-notices/2019/january-2019/human-rights-act-is-not-safe-after-brexit/">it was worried</a> to see the government change the wording of the <a href="https://www.bbc.co.uk/news/uk-politics-46303751">political declaration</a> it agreed with the EU, which sketches out a non-binding vision for what the UK’s relationship with Europe will look like after Brexit. </p>
<p>In its draft form, the declaration said that the future relationship should incorporate the UK’s “<a href="https://ec.europa.eu/commission/sites/beta-political/files/outline_of_the_political_declaration.pdf">commitment</a>” to the convention. However, by the time the final version was published in November 2018, that had changed to a commitment to “<a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/759021/25_November_Political_Declaration_setting_out_the_framework_for_the_future_relationship_between_the_European_Union_and_the_United_Kingdom__.pdf">respect the framework</a>” of the convention. </p>
<p>The committee wrote <a href="https://www.parliament.uk/documents/lords-committees/eu-justice-subcommittee/CWM/LBtoDG-ECHR-PoliticalDeclaration191218.pdf">to the government for clarification</a> and received a <a href="https://www.parliament.uk/documents/lords-committees/eu-justice-subcommittee/CWM/EAtoLB-PolDeclationReferencetoECHR040119.pdf">response from Edward Argar</a>, the parliamentary under-secretary of state for justice, who stated that the government would not repeal or replace the act while Brexit is ongoing but that “it is right that we wait until the process of leaving the EU concludes before considering the matter further”. </p>
<p><a href="https://www.parliament.uk/business/lords/media-centre/house-of-lords-media-notices/2019/january-2019/human-rights-act-is-not-safe-after-brexit/">Responding publicly</a>, committee chairman Helena Kennedy said that this was a “troubling” reply, noting: “Again and again we are told that the government is committed … but without a concrete commitment”.</p>
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<p><a href="https://www.theguardian.com/membership/2015/jul/03/guardian-live-do-we-still-need-the-human-rights-act">Critics</a> of the act say that reforms are needed to “restore” the supremacy of the UK courts, by limiting the interference of the <a href="https://www.echr.coe.int/Pages/home.aspx?p=home">European Court of Human Rights (ECHR)</a> in domestic issues, such as <a href="https://www.theguardian.com/politics/2017/dec/07/council-of-europe-accepts-uk-compromise-on-prisoner-voting-rights">voting rights for prisoners</a>. This has long been a key issue for Conservative governments, which have wanted to <a href="https://www.telegraph.co.uk/news/uknews/law-and-order/11911057/David-Cameron-I-will-ignore-Europes-top-court-on-prisoner-voting.html">ignore Strasbourg rulings</a>. The idea is that the Human Rights Act could be replaced with a <a href="https://publications.parliament.uk/pa/ld201516/ldselect/ldeucom/139/139.pdf">“British” bill of rights</a> which would allegedly give the UK more control over the laws it implements.</p>
<p>The most cited criticism is that the act protects terrorists and hate preachers, such as <a href="https://www.telegraph.co.uk/news/uknews/law-and-order/11602222/Allison-Pearson-We-must-get-rid-of-the-dreadful-Human-Rights-Act.html">Abu Hamza</a>, who, at a time when he was advocating radical Islam and violence within UK cities, initially could not be deported on grounds that doing so would have contravened his right to <a href="https://www.telegraph.co.uk/news/2016/05/07/judges-stop-theresa-may-deporting-terror-suspects/">freedom from torture</a>.</p>
<p>The successes of human rights laws are less frequently celebrated, however. The act was relied upon by <a href="https://savetheact.uk/human-rights-act-hillsborough/">Hillsborough families</a>, and the victims’ right to life, in order to secure a second inquiry. Individuals pursuing their <a href="https://www.bbc.co.uk/news/uk-21025332">freedom to manifest their religion</a> have used it to enforce their right to wear religious symbols at work. <a href="https://www.theguardian.com/society/2013/feb/06/mid-staffs-hospital-scandal-guide">Victims of the Stafford hospital scandal</a> used <a href="https://www.telegraph.co.uk/news/health/news/9849396/Mid-Staffs-NHS-Trust-pays-out-over-1.1m-in-compensation-over-patient-deaths.html">the law</a> to secure an inquiry, which led to major improvements in accountability and public safety. And it has helped those seeking <a href="https://rightsinfo.org/stories/different-families-same-love/">LGBTQ+ equality</a>, as well as British soldiers in their <a href="https://justice.org.uk/supreme-court-unanimously-affirms-human-rights-protection-for-troops-overseas/">challenge for improved resources</a>. </p>
<h2>Dispelling the myths</h2>
<p>The problem is that there are several misconceptions fuelling the drive to change the Human Rights Act. First, the ECHR is unrelated to the EU. But mistaken links between the two are causing misplaced animosity towards the convention. The convention and <a href="https://www.equalityhumanrights.com/en/what-european-convention-human-rights">its related institutions</a> were regularly confused as being part of the EU during the <a href="https://rightsinfo.org/whats-difference-european-union-european-convention-human-rights/">referendum debates</a>. Though the UK is due to leave <a href="https://europa.eu/european-union/about-eu_en">the EU</a>, it is not leaving – and does not necessarily have to leave – the <a href="https://www.coe.int/en/web/portal">Council of Europe</a>. The council predates the EU, and has a <a href="https://www.coe.int/en/web/about-us/our-member-states">larger membership</a> (47 member states compared to the EU’s 28). While the EU is concerned with matters such as the single market and free movement of people, the council addresses issues in relation to human rights and the rule of law. </p>
<p>Another point causing problems is the notion that the UK needs to move towards a supposedly “more British” and “less European” understanding of human rights. <a href="https://www.cvce.eu/en/education/unit-content/-/unit/026961fe-0d57-4314-a40a-a4ac066a1801/e5143a50-1a43-4a26-8ffd-7a5aaa12ecf7/Resources#ea6b1c3a-dd6c-4cb8-a55d-ea75a655aab5_en&overlay">History tells us</a> that in the aftermath of World War II the convention was actually partly written by the British. It was advocated by <a href="https://rightsinfo.org/churchills-fight-human-rights/">Winston Churchill</a> and co-written by <a href="https://rightsinfo.org/david-maxwell-fyfe/">Conservative MP David Maxwell-Fyfe</a>. </p>
<p>Britain was not just a supporter of the convention, but a leader in co-drafting the rules, and ensuring greater enforcement at a supranational level, via the European court. Furthermore, the UK was the very first country to ratify the convention in 1951. The irony is that the Conservative party is now questioning the role of human rights when it was the one that drafted the convention in 1950.</p>
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<p>Even if the Humans Right Act was reformed or repealed now, the UK would still be subject to the convention <a href="https://www.echr.coe.int/Documents/Convention_ENG.pdf">as a signatory</a>. UK citizens would still have access to the protections that the convention has introduced.</p>
<p>If the act is <a href="https://www.theguardian.com/commentisfree/2018/dec/10/britain-tradition-human-rights-70-years-universal-declaration-sadiq-khan">truly under threat</a> of repeal, lessons must be learnt from Brexit. There needs to be an open and honest debate about what the act and convention actually do, and what they have achieved. </p>
<p>If, in repealing the act and introducing a “<a href="https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7193">British bill of rights</a>”, the UK leaves the Council of Europe, it could cause a dangerous <a href="https://www.theguardian.com/law/2016/may/09/british-bill-of-rights-could-unravel-constitution-say-mps">unravelling of the UK’s constitution</a>, and upset the devolution settlement. It could also remove another layer of international protection for the UK’s constitutional values. To do so at a time when much uncertainty remains (following the UK leaving the EU) would have far reaching consequences for <a href="https://savetheact.uk">protecting citizens’ rights</a> against the state.</p><img src="https://counter.theconversation.com/content/111368/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stephen Clear does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Mistaken links between the EU and the European Convention on Human Rights could be one factor that sees the UK losing out on these vital supranational laws.Stephen Clear, Lecturer in Constitutional and Administrative Law, and Public Procurement, Bangor UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1082862018-12-11T11:19:20Z2018-12-11T11:19:20ZScotland’s ‘not proven’ verdict helps juries communicate their belief of guilt when lack of evidence fails to convict<figure><img src="https://images.theconversation.com/files/249688/original/file-20181210-76971-bo4bps.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Scots law offers three possible verdicts: guilty, not guilty and not proven.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/statue-justice-lady-iustitia-justitia-roman-602151149">Shutterstock</a></span></figcaption></figure><p>Twenty-six years ago, 19-year-old Scots drama student Amanda Duffy was murdered after a night out with friends. In a landmark trial in 1992, there was only one suspect in the case, Francis Auld. Despite forensic evidence that could link Auld to Amanda’s death, he received a “<a href="https://www.mygov.scot/criminal-court-case/verdicts/">not proven</a>” verdict, which meant the jury deemed there was insufficient evidence to prove his guilt. Despite this <a>acquittal</a>, Amanda’s parents sued Auld in the civil court, and he was ordered to pay £50,000.</p>
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<img alt="" src="https://images.theconversation.com/files/249686/original/file-20181210-76980-11nf143.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/249686/original/file-20181210-76980-11nf143.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=638&fit=crop&dpr=1 600w, https://images.theconversation.com/files/249686/original/file-20181210-76980-11nf143.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=638&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/249686/original/file-20181210-76980-11nf143.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=638&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/249686/original/file-20181210-76980-11nf143.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=802&fit=crop&dpr=1 754w, https://images.theconversation.com/files/249686/original/file-20181210-76980-11nf143.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=802&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/249686/original/file-20181210-76980-11nf143.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=802&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">What some thought of the verdict.</span>
<span class="attribution"><a class="source" href="https://www.dailyrecord.co.uk/news/scottish-news/dad-murdered-teen-amanda-duffy-10903499">Daily Record/Sunday Mail</a></span>
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<p>This third verdict, unique to Scots law, has long been controversial. High-profile cases such as the trial of Auld have led to many viewing it sceptically, with some <a href="https://www.scotsman.com/news/opinion/justice-for-amanda-duffy-1-2335330">suggesting</a> the not proven verdict allows guilty individuals an extra chance of acquittal. These claims have put pressure on the Scottish government to consider abolishing the verdict, with Holyrood’s <a href="http://www.parliament.scot/parliamentarybusiness/CurrentCommittees/justice-committee.aspx">justice committee</a> warning that the “bastard verdict” (as Sir Walter Scott called it) is <a href="https://www.theguardian.com/law/2018/nov/13/call-for-abolition-of-not-proven-verdict-in-scottish-law">on borrowed time</a>. </p>
<p>But what are the effects of the not proven verdict on jurors? My <a href="https://journals.sagepub.com/doi/full/10.1177/0025802418811740">research</a>, the first study of its kind for ten years, aimed to establish just that. </p>
<h2>The third way</h2>
<p>The not proven verdict is to be found only in Scotland. Unlike the Anglo-American system, Scotland has three verdicts: guilty, not guilty and not proven. The confusion over the not proven verdict relates to the fact that Scottish law has not defined what the not proven verdict means, and it has the exact same legal outcome as the not guilty verdict, meaning the defendant is acquitted.</p>
<p>Besides <a href="https://www.dailymail.co.uk/wires/pa/article-6383837/End-Not-Proven-campaign-aims-scrap-confusing-verdict-Scotland.html">being seen as confusing</a> and providing an extra chance for acquittal, the verdict has also been said to undermine the presumption of innocence principle, which suggests that the Scottish three-verdict system breaks <a href="https://www.researchgate.net/publication/6137137_A_third_verdict_option_Exploring_the_impact_of_the_not_proven_verdict_on_mock_juror_decision_makin">Article 6</a> of the <a href="https://www.amnesty.org.uk/what-is-the-european-convention-on-human-rights">European Convention on Human Rights</a>.</p>
<h2>Testing the verdict</h2>
<p>My team wanted to test the claims that the not proven verdict may increase the chances of a defendant being acquitted. For this experiment we recruited 128 participants, and each participant acted as a juror in two separate mock murder trials.</p>
<p>In one trial, the jurors could give one of three verdicts: guilty, not guilty or not proven. In another, jurors could give one of two verdicts: guilty or not guilty. Participants were also asked to state the likelihood of the defendant’s guilt after each piece of evidence.</p>
<p>Our research found was that jurors were significantly less likely to give a not guilty verdict in the three-verdict system compared with the two-verdict system. There were also fewer not guilty verdicts than not proven verdicts in the three verdict system. Interestingly, there were no significant differences in relation to the number of guilty verdicts given across each of system; similar results <a href="https://www.researchgate.net/publication/6137137_A_third_verdict_option_Exploring_the_impact_of_the_not_proven_verdict_on_mock_juror_decision_making">have been found</a> by researchers in the past. So if there wasn’t a significant decrease in guilty verdicts across the systems, then neither was there a significant increase in obtaining the acquittal verdict. The results showed that jurors did not give significantly different estimates of guilt across each system.</p>
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<img alt="" src="https://images.theconversation.com/files/249689/original/file-20181210-76980-18tszxx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/249689/original/file-20181210-76980-18tszxx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=367&fit=crop&dpr=1 600w, https://images.theconversation.com/files/249689/original/file-20181210-76980-18tszxx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=367&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/249689/original/file-20181210-76980-18tszxx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=367&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/249689/original/file-20181210-76980-18tszxx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=461&fit=crop&dpr=1 754w, https://images.theconversation.com/files/249689/original/file-20181210-76980-18tszxx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=461&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/249689/original/file-20181210-76980-18tszxx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=461&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The High Court in Glasgow where Francis Auld was acquitted.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/glasgow-high-court-justiciary-old-part-249076087">Shutterstock</a></span>
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<h2>What this means</h2>
<p>This research has a number of implications for not only the Scottish legal system, but also the <a href="https://www.encyclopedia.com/politics/encyclopedias-almanacs-transcripts-and-maps/common-law-anglo-american">Anglo-American</a> legal system. First, the claims that the not proven verdict decreases guilty verdicts was shown to be unjustified. This would suggest that individuals who are guilty are not being given an extra chance of acquittal even when the not proven verdict is available to jurors. So we can claim that miscarriages of justice are not occurring because of Scotland’s not proven verdict, but are instead being caused by problems that plague the adversarial system all around the world, such as <a href="https://theconversation.com/how-juror-bias-can-be-tackled-to-ensure-fairer-trials-100476">juror bias</a> and <a href="https://www.jstor.org/stable/pdf/10.1086/428020.pdf">lack of juror expertise</a> in relation to forensic evidence.</p>
<p>Second, the fact that fewer not guilty verdicts were given in the three-verdict system suggests that the not proven verdict may aid juror communication. For instance, the not guilty verdict in the two-verdict system can be given in two circumstances: when the jurors think the person was probably innocent; and when the jurors believe the person is probably guilty but the evidence cannot support the claims against the defendant beyond reasonable doubt.</p>
<p>The not proven verdict reduces the ambiguity of the not guilty verdict, with this option in a three-verdict system meaning the jury actually believed the person to be <a href="https://philpapers.org/rec/JACTOP-2">innocent</a>. This clarification of the interpretation of the not guilty verdict occurs because not proven may be interpreted as a verdict given when the defendant is presumed guilty but the jury is unable to choose this verdict because the evidence did not prove guilt beyond <a href="https://www.tandfonline.com/toc/tppl20/current">reasonable doubt</a>. In other words, the not proven verdict can help jurors to communicate their belief of guilt to the judge more adequately.</p>
<p>Third, juror estimates of guilt were the same across the two different verdict systems, and these estimates were requested before jurors were given the opportunity to make a decision. It can, therefore, be said that the jurors presumed the same level of innocence about defendants regardless of how many verdicts were available, thus confirming that the not proven verdict does not undermine the presumption of innocence principle. This means that the Scottish three-verdict system is in line with Article 6 of the European Convention on human rights.</p>
<p>Based on these results – although more research is necessary, particularly in relation to crimes such as <a href="https://www.theguardian.com/law/2018/nov/13/call-for-abolition-of-not-proven-verdict-in-scottish-law">sexual assault</a> – I would recommend that the Scottish government retain the not proven verdict. Other legal systems might do well to consider introducing the not proven verdict as it might aid jurors in communicating their belief of guilt more adequately than is currently available under the two-horse guilty/not guilty system.</p><img src="https://counter.theconversation.com/content/108286/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lee John Curley has received funding from the McGlashan Charitable Trust and The East Lothian Educational Trust.</span></em></p>Despite its controversial nature, new research into the not proven verdict shows it helps juries ascribe guilt more adequately.Lee John Curley, Teaching Associate Psychology, Edinburgh Napier UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/927002018-03-23T14:38:42Z2018-03-23T14:38:42ZRussia doesn’t just violate international law – it follows and shapes it too<p>Russia is often seen as a persistent violator of international law. From recent allegations of the state-sponsored <a href="https://www.theguardian.com/uk-news/2018/mar/18/vladimir-putin-nonsense-to-think-russia-would-poison-spy-in-uk">poisoning of Sergei Skripal</a> in Salisbury to the <a href="http://carnegieeurope.eu/2017/03/15/revisiting-2014-annexation-of-crimea-pub-68423">annexation of Crimea</a> in 2014, and from the <a href="http://news.bbc.co.uk/1/hi/world/europe/7577122.stm">incursion of Russian forces into Georgia</a> in 2008 to the alleged large-scale <a href="http://www.janes.com/article/74682/russian-forces-now-11-000-strong-in-the-donbass">support for separatists in eastern Ukraine</a>, Russia is portrayed as the villain in international society.</p>
<p>Russia <a href="https://www.theguardian.com/world/2014/mar/18/crimea-putin-condemns-western-hypocrisy-annexation">returns the accusation</a>. The country’s leadership points to examples of what it sees as Western hypocrisy: the recognition of <a href="https://theconversation.com/kosovo-is-still-locked-out-of-the-eu-ten-years-after-declaring-independence-why-91869">Kosovo’s sovereignty</a>, the <a href="https://theconversation.com/chilcot-report-tony-blairs-sad-and-shameful-political-epitaph-62135">2003 invasion of Iraq</a>, and the 2011 NATO-led <a href="https://theconversation.com/russia-has-a-serious-stake-in-libyas-uncertain-future-79371">military intervention in Libya</a>. How can those states accusing Russia of international law violations take the legal (and moral) high ground, when they are guilty of similar acts? So the Russian argument goes. </p>
<p>So which side is right? The question is much less simple than it sounds. In order to grapple with it properly, we need to look at history, politics, and the nature of international law itself.</p>
<h2>The state comes first</h2>
<p>The post-war international legal order was not set up by Western powers alone. As a constituent republic of the Soviet Union, Russia was one of this order’s key architects. Along with the Allies, the Soviet Union was <a href="https://www.youtube.com/watch?v=KIBLOq1uiTk">instrumental</a> in the post-World War II Nuremberg process, where members of the Nazi party were held legally responsible for the atrocities their regime committed. This process forged and popularised a language of international criminal law that’s still in use today.</p>
<p>Soviet delegates were also active and vociferous participants in the flurry of treaties produced by the United Nations in its first decades. To give one example, they heavily influenced the language of the 1949 <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/TrafficInPersons.aspx">Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others</a>. And the drafting and ratification of the 1966 <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx">International Covenant of Economic, Social and Cultural Rights</a> (at the same time as a separate Covenant on Civil and Political Rights) was closely tied to the Soviet argument that collective rights should be recognised equally with those of the individual in international human rights law.</p>
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<img alt="" src="https://images.theconversation.com/files/211709/original/file-20180323-54881-1mxwzze.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/211709/original/file-20180323-54881-1mxwzze.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=484&fit=crop&dpr=1 600w, https://images.theconversation.com/files/211709/original/file-20180323-54881-1mxwzze.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=484&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/211709/original/file-20180323-54881-1mxwzze.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=484&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/211709/original/file-20180323-54881-1mxwzze.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=609&fit=crop&dpr=1 754w, https://images.theconversation.com/files/211709/original/file-20180323-54881-1mxwzze.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=609&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/211709/original/file-20180323-54881-1mxwzze.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=609&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The Nuremberg judges panel, backed by the US, UK and USSR flags.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:View_of_judges_panel_during_testimony_Nuremberg_Trials_1945.jpeg">Wikimedia Commons</a></span>
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<p>Like other major players in the Cold War, Soviet officials often used international law as a foreign policy tool. Ideological differences were emphasised and used as sticks with which to attack one another across the Iron Curtain. At the same time, both sides accused the other of failing to recognise or protect the same rights they insisted on imposing on the international stage. Through this process, the Soviet Union developed <a href="https://global.oup.com/academic/product/russian-approaches-to-international-law-9780198723042?cc=gb&lang=en&">its own approach to international law</a>, which emphasised the primacy of the state over the individual – and which continues to influence the Russian government’s justifications for its actions today.</p>
<p>Contemporary Russia’s relationship with international law is not simply a question of international relations. International law is supposed to have a privileged place in the Russian legal system. <a href="http://www.constitution.ru/en/10003000-02.htm">Section four of article 15</a> of the 1993 Russian Constitution enshrines the supremacy of international treaties and agreements in case of a conflict with Russian domestic law. But in recent years, this privileged position has been undermined. </p>
<h2>Give and take</h2>
<p>According to a <a href="http://www.loc.gov/law/foreign-news/article/russian-federation-constitutional-court-allows-country-to-ignore-echr-rulings/">December 2015 legal change</a>, Russia’s Constitutional Court can declare the judgements of human rights bodies “impossible to implement” if it deems them incompatible with the Russian Constitution. This most clearly challenges the authority of the <a href="https://www.britannica.com/topic/European-Court-of-Human-Rights">European Court of Human Rights</a> – the body that interprets and enforces the European Convention on Human Rights, which Russia <a href="http://merlin.obs.coe.int/iris/1998/6/article6.en.html">ratified</a> in 1998. And it’s certainly not irrelevant that cases involving Russia make up a significant proportion of the European Court’s workload.</p>
<p>But again, some perspective is needed. While there have lately been <a href="https://uk.reuters.com/article/uk-russia-court-echr-withdrawal/russia-may-end-cooperation-with-european-court-of-human-rights-ria-idUKKCN1GD48H">murmurs</a> that Russia could leave both the Council of Europe and the European Convention on Human Rights, it has yet to do either. The UK government, by contrast, has made far more explicit and sustained threats to <a href="https://www.independent.co.uk/news/uk/politics/theresa-may-campaign-leave-european-convention-on-human-rights-2020-general-election-brexit-a7499951.html">leave the European Court altogether</a>.</p>
<p>The fact of the matter is that international law is not monolithic. As Russia’s ongoing, idiosyncratic engagement with it makes clear, it’s a complex web of agreements, rules, regulations and conventions. Any state can be both violator and upholder of international law at the same time. And what Russia does matters either way: beyond its status as a permanent member of the UN Security Council, it is <a href="https://fpc.org.uk/russias-influence-shrinking-civic-space-central-asia/">a norm leader</a> for many post-Soviet states.</p>
<p>Recognising this reality isn’t a veiled call for relativism and diluted standards of culpability; it’s a necessary part of recognising Russia’s historical role as a legal architect, as well as the challenges it currently poses. And more than that, taking the long view is a political necessity. Simply “<a href="https://www.cfr.org/blog/crimea-stop-citing-international-law-and-start-condemning-russian-expansionism">throwing the book</a>” at Russia probably isn’t an effective strategy for engaging with either the Russian state or Russian citizens.</p><img src="https://counter.theconversation.com/content/92700/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Philippa Hetherington receives funding from the Arts and Humanities Research Council and the British Academy. She has previously received funding from the Social Science Research Council (U.S.), the Andrew W. Mellon Foundation, the Woodrow Wilson Foundation, the Australian Research Council and Harvard University. She is a member of the Association for Slavic, East European and Eurasian Studies, the American Society for Legal History, and the University and College Union. </span></em></p><p class="fine-print"><em><span>Ben Noble has received funding from The Leverhulme Trust, Alfa Bank (Russia), the University of Oxford, and New College, University of Oxford. Ben is also currently a Senior Research Fellow at the Higher School of Economics, Moscow, Russia. He is a member of the British Association of Slavonic and East European Studies, the American Political Science Association, the Midwest Political Science Association, the Association for Slavic, East European and Eurasian Studies, and the University and College Union. He is also a Fellow of the Royal Society of Arts. </span></em></p>Despite its reputation, Russia has contributed much more to international law than it’s sometimes given credit for.Philippa Hetherington, Lecturer in Modern Eurasian History, UCLBen Noble, Lecturer in Russian Politics, UCLLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/748592017-06-08T08:23:25Z2017-06-08T08:23:25ZWhat happened to German prisoners of war in Britain after Hitler’s defeat<p>Nearly a year after the end of World War II, a large number of German prisoners of war (POWs) were still being detained in post-war Britain. In March 1946, angry that the government had not announced when they could be repatriated, the Labour MP Richard Stokes <a href="http://hansard.millbanksystems.com/commons/1946/mar/27/prisoners-of-war#S5CV0421P0_19460327_HOC_843">said</a> the Germans were entitled to know their expected date of release. It was an affront to their human rights and therefore a betrayal of British values, he said. Although ex-enemies, Stokes insisted German POWs had “human rights” which Britain, as a foremost guardian of them, had to respect. </p>
<p>By September 1946, more than a year after the end of World War II, <a href="https://historicengland.org.uk/listing/the-list/list-entry/1020730">402,000 German POWs</a> were still being held in camps stretching across Britain. They were set to work on tasks including road repair and brickmaking. POWs swept up the rubbish after VE day celebrations and helped construct Wembley Way for the 1948 Olympics. In March 1947, 170,000 were working in agriculture, helping farmers bring in the harvest.</p>
<p>International law stipulated that POWs should be repatriated after a peace treaty was signed, but with Germany occupied, a peace treaty was a remote possibility. So Britain kept its German POWs – who were proving useful as a labour force – without announcing when they might be sent home. The practical issue of arranging transports hindered plans; at the same time, repatriating ardent Nazis among the POWs was considered imprudent.</p>
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<p>In May 1946, the politician and writer Harold Nicolson argued that the repatriation of German POWs should begin immediately. His point was that as war-ravaged Europe looked for leadership and while the Soviet Union had ample physical strength, Britain, in contrast, had “<a href="http://archive.spectator.co.uk/article/24th-may-1946/10/marginal-comment">enormous moral power</a>”. Through proper demonstration of democratic principles, he said that Britain could gain “the willing cooperation of many millions” across Europe. Unjust behaviour would, however, undermine this power. It was imperative that Britain “practise[d] what it preache[d]”. For Nicolson, the treatment of German POWs was an example of this damaging hypocrisy:</p>
<blockquote>
<p>That we should treat human beings in this manner while proclaiming aloud our belief in the sanctity of human values, [is] more than wrong, it is blind and stupid.</p>
</blockquote>
<p>The British public registered similar disapproval in letters to newspapers. Retaining POWs indefinitely tarnished Britain’s image; the freedoms for which the war had been fought were being denied the German POWs. Treating the defeated in this way was cruel, behaviour expected of the Nazis had they been victorious. Even convicted criminals knew the length of their sentences.</p>
<p>Public dissatisfaction was formally expressed in August 1946 when Save Europe Now, a post-war pressure group, sent a petition to then-prime minister, Clement Attlee. Attlee soon announced that 15,000 POWs would be <a href="http://www.bbc.co.uk/history/british/britain_wwtwo/german_pows_01.shtml">repatriated</a> per month. While this was celebrated, criticism of the slowness of repatriation continued until it was completed in 1948.</p>
<h2>A United States of Europe</h2>
<p>People hoped that German POWs, having experienced the British way of life, would become ambassadors for democracy. A government led reeducation programme for POWs in the UK tried to <a href="http://howitreallywas.typepad.com/how_it_really_was/2006/12/group_captives_.html">re-orientate them</a> towards democratic values after years of Nazi propaganda. </p>
<p>But preaching the virtues of democracy while keeping the POWs detained in Britain was thought extremely hypocritical – an inconsistency not lost on the captives. If Britain wanted to disseminate its values to Europe, those like Nicholson argued, it had to demonstrate that it was sincere about them. Retaining POWs for so long after the war undermined this intention, and damaged Britain’s international image.</p>
<p>In the context of the emergent Cold War, post-war politicians encouraged the creation of a strong vision for Western Europe, built around shared history and values. Despite the ambiguity of his vision, Winston Churchill called for a “<a href="http://www.churchill-society-london.org.uk/astonish.html">United States of Europe</a>”. </p>
<p>Founded in 1949, the Council of Europe, an organisation Churchill endorsed, aimed to promote greater European unity. The first piece of legislation drafted within the council was the <a href="http://www.echr.coe.int/Documents/Convention_ENG.pdf">European Convention on Human Rights</a> (ECHR). This international treaty safeguards human rights in Europe and established the European Court of Human Rights. Another British Conservative politician, David Maxwell-Fyfe, played a leading role in the drafting of the ECHR and <a href="http://www.journalonline.co.uk/Magazine/56-9/1010095.aspx">described</a> the ECHR as a “beacon to those […] in totalitarian darkness”. While there were concerns within the Labour government that a European court might override British sovereignty, the UK ratified the convention as an example to others.</p>
<p>These issues are starkly relevant today. In 2016, Theresa May <a href="https://www.theguardian.com/politics/2016/apr/25/uk-must-leave-european-convention-on-human-rights-theresa-may-eu-referendum">said</a> Britain must withdraw from the ECHR. But in its <a href="https://s3.eu-west-2.amazonaws.com/manifesto2017/Manifesto2017.pdf">manifesto</a>, her Conservative Party said it would wait to do so until after the UK leaves the EU. </p>
<p>If Britain were to eventually withdraw from the ECHR, it would reverse a wider trend in place since the 1940s that has seen protection of human rights handed to European institutions. In 1946 the argument was that German POWs had inalienable rights, whatever their status, which Britain must respect. Foreigners would not be guaranteed these rights if Britain were to eventually pull out of the ECHR.</p><img src="https://counter.theconversation.com/content/74859/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alan Malpass does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>… and why their treatment angered human rights campaigners at the time.Alan Malpass, Associate Lecturer in History, Sheffield Hallam UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/785792017-06-06T10:41:17Z2017-06-06T10:41:17ZWhy Churchill would have disagreed with Theresa May’s stance on European human rights<p>History teaches us that the clash within Conservative ranks between populists and free-marketers may be decisive in shaping Conservative human rights policy after the election.</p>
<p>Earlier in 2017, it <a href="http://www.independent.co.uk/news/uk/politics/theresa-may-campaign-leave-european-convention-on-human-rights-2020-general-election-brexit-a7499951.html">appeared likely</a> that the Conservative party would make the UK’s withdrawal from the 1950 European Convention on Human Rights (ECHR) a centrepiece of its next general election campaign, despite <a href="https://www.dominicgrieve.org.uk/news/why-human-rights-should-matter-conservatives">pointed disagreement</a> within party ranks. </p>
<p>The chief instigator was reported to be the prime minister herself. As home secretary, Theresa May had become so irate at the European Court of Human Rights in Strasbourg that she had called on the UK to leave the ECHR outright, <a href="http://www.independent.co.uk/news/uk/politics/european-convention-human-rights-eu-referendum-brexit-theresa-may-a6999701.html">expressing outrage</a> that the treaty “binds the hands of parliament.” In February, she <a href="https://www.una.org.uk/file/11615/download?token=4sYI3y1m">reaffirmed</a> that the Conservative government aimed to replace the Human Rights Act, which enshrines the ECHR into British law, with a British Bill of Rights, one that “will remain faithful to the basic principles of human rights found in the original European Convention on Human Rights”.</p>
<p>So proponents of the UK’s continued participation in the ECHR were pleasantly surprised when May appeared to reverse course, at least temporarily. As her newly-minted <a href="https://www.conservatives.com/manifesto">manifesto</a> stipulates: </p>
<blockquote>
<p>We will not repeal or replace the Human Rights Act while the process of Brexit is underway but we will consider our human rights legal framework when the process of leaving the EU concludes. We will remain signatories to the European Convention on Human Rights for the duration of the next parliament.</p>
</blockquote>
<p>Even so, other parts of the manifesto should give supporters of the Strasbourg court pause for thought. These passages, though not directly concerned with human rights law, announce a broader realignment of Conservative views on the relationship between the individual and the state. The manifesto says: “We must reject the ideological templates provided by the socialist left and the libertarian right and instead embrace the mainstream view that recognises the good that government can do.”</p>
<p>This has been widely <a href="http://www.newstatesman.com/politics/june2017/2017/05/theresa-mays-conservative-manifesto-buries-dogmatic-thatcherism">interpreted</a> as a repudiation of the free-market individualism of Thatcherism in favour of an affirmation of a strong positive role for the state in domestic affairs. In practice, the document retains longstanding Conservative calls for less regulations and taxes, while proposing an array of government interventions and subsidies in the domain of economic and social policy more sweeping than many of its predecessors. </p>
<p>“We do not believe in untrammelled free markets,” May <a href="https://www.ft.com/content/8460e678-3bb0-11e7-ac89-b01cc67cfeec">announced</a> when introducing the document in Halifax, Yorkshire. “We reject the cult of selfish individualism. We see rigid dogma and ideology not just as needless but dangerous.” </p>
<h2>Removing controls on totalitarianism</h2>
<p>My <a href="https://global.oup.com/academic/product/the-conservative-human-rights-revolution-9780199811380?cc=gb&lang=en&">research</a> suggests that a less libertarian tenor to Conservative economic and social policy has implications for whether a future Conservative government would take steps to limit the application of the ECHR in Britain. It could also lay the groundwork for an eventual withdrawal from the treaty.</p>
<p>If this is far from obvious today, it is due to longstanding misconceptions regarding the role of Conservatives in the ECHR’s origin. In the late 1940s, Conservative MPs Winston Churchill and David Maxwell Fyfe were at the forefront of campaigning for the establishment of a European human rights court in advance of the ECHR’s adoption by the Council of Europe in 1950. The <a href="http://www.journalonline.co.uk/Magazine/56-9/1010095.aspx">common assumption</a> among supporters, detractors, and scholars of the ECHR alike is that the two men were concerned with the menace of fascism and communism alone – and that their conservative views on domestic matters were irrelevant.</p>
<p>Fascism and communism were certainly at the forefront of their concerns. But another spectre loomed: that of socialist efforts to enhance state power at the expense of individual freedoms and an independent judiciary. It was the fierce attachment of Churchill and Maxwell Fyfe to free-market individualism that distinguished their vision of human rights from that of the left. Following the Conservatives’ loss in the 1945 general election, they feared the awesome powers of a British state whose reach had grown dramatically during the war, and was now at service of a Labour majority. </p>
<p>For Maxwell Fyfe, Britain’s adherence to the ECHR was meant to limit the ability of parliamentary majorities to enact legislation harmful to British human rights, which he understood to mean personal liberties, including property rights, rather <a href="https://theconversation.com/why-civil-and-political-rights-have-been-easier-to-secure-than-social-and-economic-ones-77027">than social rights</a>. He conceived of a higher court that would have the power to declare acts of parliament in violation of the ECHR. </p>
<p>Undoubtedly, Churchill and Maxwell Fyfe would have found much to like in the 2017 Conservative manifesto. Even so, they would certainly have disapproved of its subordination of the individual to the collective, as well as May’s endorsement of a more populist vision of conservatism that rejects judicial constraints on parliamentary majority rule. </p>
<p>By announcing that “our responsibility to one another is greater than the rights we hold as individuals … because that is what community and nation demands”, the <a href="https://www.conservatives.com/manifesto">manifesto</a> signals not just a rejection of Thatcherism. It also sounds the Conservative party’s retreat from a free-market libertarian critique of state power and tyranny of the majority. It was this that had fuelled Churchill and Maxwell Fyfe’s exceptional enthusiasm for Britain’s participation in the birth of a European human rights system with extraordinary controls on national executives and legislatures.</p><img src="https://counter.theconversation.com/content/78579/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Marco Duranti does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Conservative party manifesto’s repudiation of the ‘libertarian right’ bodes ill for the European Court of Human Rights.Marco Duranti, Lecturer in history, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/739172017-03-02T11:43:00Z2017-03-02T11:43:00ZThe saga of Anders Breivik’s prison conditions puts European democracy in the spotlight<p>Norway is not violating the rights of mass murderer Anders Breivik by keeping him in solitary confinement, according to an appeal ruling on March 1. </p>
<p>The Borgarting Court of Appeal in Oslo delivered its much awaited <a href="https://www.domstol.no/en/Enkelt-domstol/Borgarting-lagmannsrett/Aktuelt/judgment-in-the-appeal-case-between-the-norwegian-ministry-of-justice-and-breivik/">judgment</a> on the latest chapter of the <a href="https://theconversation.com/norways-human-rights-appeal-over-the-prison-conditions-of-anders-breivik-explained-70160">legal challenge</a> by Breivik, who killed 77 people in two terrorist acts in Norway in 2011. The appeals court overturned an earlier <a href="http://www.domstol.no/contentassets/9082215b86804731af6ddc9691116cf3/15-107496tvi-otir---dom-20042016breivik.pdf">decision</a> of the Oslo District Court and ruled that the conditions of Breivik’s detention have not violated his rights under <a href="http://www.echr.coe.int/Documents/Convention_ENG.pdf">Article 3 of the European Convention on Human Rights</a> (ECHR) which prohibits torture and inhuman or degrading treatment or punishment. </p>
<p>The Court of Appeal said it was necessary to keep Breivik in solitary confinement and for guards to use handcuffs on him and conduct body searches. It was satisfied that there was risk of violence both from Breivik and against him from other inmates. It said that extensive measures had been taken to compensate for his lack of companionship and that there was an absence of evidence of substantial damage to his mental health due to prolonged isolation.</p>
<h2>What is necessary</h2>
<p>It is significant that two Norwegian courts have now reached different conclusions about Breivik’s rights under the ECHR. In the original ruling, the Oslo District Court did not doubt that Breivik remained a dangerous ultra-right wing extremist, nor that his detention conditions were generally “good”. But the court was not convinced that the continuous solitary confinement was “strictly necessary” or that adequate measures had been taken to compensate for Breivik’s lack of social interaction. </p>
<p>In the latest ruling, however, the Borgarting Court of Appeal, seems to have placed more emphasis on the fact that Breivik remains apparently remorseless and “strongly affected by his right-wing extremist political universe”. The appeal judges considered it impossible for prison authorities to predict whether and when Breivik may resort to violence again. As such, they ruled that comprehensive security measures including solitary confinement were necessary in view of “strong societal considerations”.</p>
<p>Both Norwegian courts, then, have essentially looked at how necessary the conditions of Breivik’s detention are in order to determine whether they are unlawful. This will depend on the circumstances of each individual case, taking into account the severity of the measure, its duration, and the effect on the prisoner’s well-being. </p>
<p>Apparently similar detention conditions, therefore, can be found to violate Article 3 of the Convention in <a href="http://hudoc.echr.coe.int/eng#%7B%22fulltext%22:%5B%22ocalan%20v.%20turkey%22%5D,%22sort%22:%5B%22kpdate%20Descending%22%5D,%22docname%22:%5B%22ocalan%22%5D,%22documentcollectionid2%22:%5B%22GRANDCHAMBER%22,%22CHAMBER%22%5D,%22itemid%22:%5B%22001-142087%22%5D%7D">some circumstances</a> but not in <a href="http://hudoc.echr.coe.int/eng#%7B%22docname%22:%5B%22%22CASE%20OF%20RAMIREZ%20SANCHEZ%20v.%20FRANCE%22%22%5D,%22documentcollectionid2%22:%5B%22GRANDCHAMBER%22,%22CHAMBER%22%5D,%22itemid%22:%5B%22001-76169%22%5D%7D">others</a>.</p>
<p>The European Court of Human Rights has been <a href="http://hudoc.echr.coe.int/eng#%7B%22docname%22:%5B%22Ireland%20v.%20United%20Kingdom%22%5D,%22documentcollectionid2%22:%5B%22GRANDCHAMBER%22,%22CHAMBER%22%5D,%22itemid%22:%5B%22001-57506%22%5D%7D">clear</a> that legal opinion on whether treatment is “inhuman” or “degrading” is relative, and depends on all the circumstances of the <a href="http://hudoc.echr.coe.int/eng#%7B%22docname%22:%5B%22soering%22%5D,%22documentcollectionid2%22:%5B%22GRANDCHAMBER%22,%22CHAMBER%22%5D,%22itemid%22:%5B%22001-57619%22%5D%7D">case</a>. It should not be surprising, therefore, that a slight difference in the weighting of relevant factors has produced different outcomes. </p>
<h2>A question of priorities</h2>
<p>But taking a wider angle, there is an oxymoron lying at the heart of Breivik’s legal challenge. The current living conditions of the man responsible for one of the most heinous crimes in recent European history seem to be infinitely better than those of <a href="https://theconversation.com/if-the-eu-wants-to-be-the-bastion-of-liberal-democracy-it-too-must-stop-demonising-refugees-and-migrants-72327">refugees and asylum seekers</a> reaching European shores en masse in recent years. </p>
<p>Of course, lowering the standards of treatment we afford prisoners would not resolve the <a href="https://theconversation.com/uk/topics/refugee-crisis-20183">refugee crisis</a>, but this obvious asymmetry does raise existential questions about the priorities of Europe’s human rights protection system.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/159101/original/image-20170302-14714-1l58p77.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/159101/original/image-20170302-14714-1l58p77.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/159101/original/image-20170302-14714-1l58p77.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/159101/original/image-20170302-14714-1l58p77.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/159101/original/image-20170302-14714-1l58p77.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/159101/original/image-20170302-14714-1l58p77.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/159101/original/image-20170302-14714-1l58p77.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A memorial for the victims of Brevik’s attack on the island of Utøya.</span>
<span class="attribution"><span class="source">Krister Sorboe/EPA</span></span>
</figcaption>
</figure>
<p>This is why we need to talk about European democracy more than we need to talk about the Breivik ruling itself. The way Europe – as a diverse but united demos held together by common democratic values – treats terrorists and convicted criminals through its human rights system is an index of the kind of political community we aspire to be. </p>
<p>Our collective commitment to the rule of law and to the protection of fundamental human rights does not, and should not, depend on who may happen to be on the receiving end of torture or inhuman or degrading treatment or punishment. But equally significant is our collective public reaction to judicial decisions such as this that may protect the inalienable rights of abhorrent Neo-Nazi mass murderers.</p>
<p>Constitutional democracy comes at a cost. Part of this cost is to accept that trust in the justice system and in the judiciary, both European and domestic, cannot operate on an a-la-carte basis. In a democratic society, of course, no institution should be entirely insulated from criticism, but it is important to bear in mind that the interpretation of legal rules that are heavily dependent on the facts of each case is an inherently difficult task and one which is rarely going to produce results that satisfy everyone’s sense of right and wrong.</p>
<p>At a time when the political trend on both sides of the Atlantic is to <a href="https://www.theguardian.com/law/2017/feb/16/politicians-slow-defend-judges-brexit-case-lord-neuberger">attack</a> and <a href="http://uk.reuters.com/article/uk-usa-trump-immigration-idUKKBN15I2JB">ridicule</a> judges for upholding their constitutional duties, it is important to make sure that the Oslo appeal court is applauded for the right reasons. Credit is due when a court upholds the law regardless of whether its conclusions resonate with the views of the many – not because of it.</p><img src="https://counter.theconversation.com/content/73917/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Panos Kapotas does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A Norwegian appeal court has ruled that the mass murderer’s human rights are not being violated by the conditions of his imprisonment.Panos Kapotas, Senior Lecturer, School of Law , University of PortsmouthLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/713962017-01-18T13:14:14Z2017-01-18T13:14:14ZSupreme court rulings open door to future ‘war on terror’ litigation in Britain<p>The UK Supreme Court has <a href="http://www.bbc.co.uk/news/uk-38649683">handed down</a> three landmark judgements relating to the activities of UK authorities and officials in the fight against terrorism. The court ruled on January 17 that cases could now proceed against UK officials accused of involvement in detention and rendition operations – even if foreign states and their officials were the “prime actors” of alleged human rights violations. This means that <a href="https://www.supremecourt.uk/cases/uksc-2014-0264.html">cases can now proceed against</a>, among others, the former foreign secretary Jack Straw. </p>
<p>Another key element of the rulings relates to the authority to detain people in armed conflict, and the interplay between the law of armed conflict and international human rights law.</p>
<p>The Supreme Court’s rulings will have a significant impact on future litigation in relation to the activity of UK authorities and officials abroad. As a number of the claims relate to the extraterritorial application of the <a href="http://www.legislation.gov.uk/ukpga/1998/42/contents">Human Rights Act</a> and its application to UK armed forces, these cases are particularly sensitive in the <a href="https://theconversation.com/why-human-rights-law-is-not-a-threat-to-the-british-armed-forces-66504/">current political climate</a>.</p>
<h2>The cases at stake</h2>
<p>The rulings relate to four specific cases, with many joined legal issues:</p>
<ul>
<li><p>The UK’s alleged involvement in the 2004 detention, rendition to Libya, and subsequent torture of <a href="https://www.supremecourt.uk/cases/uksc-2014-0264.html">Abdul Hakim Belhaj</a>, a former Libyan dissident, and his wife. </p></li>
<li><p>The detention by UK forces in Iraq of <a href="https://www.supremecourt.uk/cases/uksc-2015-0002.html">Yunus Rahmatullah</a>, a Pakistani citizen. Rahmatullah was transferred to US custody, and was detained by US forces first in Iraq and then for over ten years at Baghram airbase in Afghanistan. He alleges severe mistreatment in both UK and US detention.</p></li>
<li><p>The detention in Afghanistan of <a href="https://www.supremecourt.uk/cases/uksc-2015-0218.html">Serdar Mohammed</a>, a suspected senior Taliban commander. He was detained by UK forces for three and a half months, and it is alleged that there was no legal basis authorising this detention.</p></li>
<li><p>The detention in Iraq of <a href="https://www.supremecourt.uk/cases/uksc-2014-0219.html">Abd Ali Hameed Ali Al-Waheed</a> on suspicion of involvement in insurgent activity, relating to the discovery of a store of improvised explosive devices and other weapons. Al-Waheed was detained for six and a half weeks and released after an internal review held that a successful prosecution was unlikely. His claim is joined with Mohammed’s.</p></li>
</ul>
<p>Although the complexity involved in the rulings mean that they require considerable further consideration, they impact on two key areas of law.</p>
<h2>State immunity and foreign acts of state</h2>
<p>Some of the most significant elements of the rulings relate to state immunity and foreign acts of state. Both these principles are related to the principle of sovereign equality of states established under the <a href="http://www.un.org/en/charter-united-nations/">UN Charter</a>. Essentially they mean that domestic courts cannot judge the acts of foreign states.</p>
<p>The Supreme Court has now ruled that state immunity does not provide a defence in cases directed against a government official, despite the fact that foreign states may have been the prime actors in causing the alleged harm. As foreign states and their officials would suffer only reputational – and not legal – harm from such a case, the principle of state immunity is protected. The Supreme Court also held that due to the alleged facts of the cases at hand – which constituted severe human rights violations – the government was not entitled to rely on the foreign act of state doctrine.</p>
<p>These findings mean that the Belhaj and Rahmatullah cases against UK officials – including former foreign secretary Jack Straw – can proceed. This is both a political and a legal landmark that will have concrete knock-on effects regarding the joint military and intelligence operations conducted by the UK with other states. </p>
<p>The Supreme Court has confirmed that if, in the course of these activities UK authorities or officials are involved in human rights violations, they may be brought to court in the UK. This will focus attention on how military and intelligence partners are complying with human rights law.</p>
<h2>Detention in armed conflict</h2>
<p>The key issue in the Al-Waheed and Mohammed cases was the extent to which the <a href="http://www.echr.coe.int/Documents/Convention_ENG.pdf">European Convention on Human Rights</a> (ECHR) – to which the UK is a signatory – applied to military detention operations abroad. </p>
<p>The court held that human rights law continued to apply in situations of armed conflict, even though human rights law had to be “adapted” to fit with the requirements of the law of armed conflict. In this case, this meant that internment (security detention to prevent future harm) was regarded as compatible with international human rights law. This is despite the fact that in normal circumstances a formal “derogation” – or waiver – from the ECHR would be required. This ruling presents a positive approach to the relationship between human rights law and the law of armed conflict, and it means that Mohammed and Al-Waheed cannot sue the UK government regarding the legal basis of their detention.</p>
<p>However, this case is complex and beneath this broadly positive trend lie a number of important – and controversial – legal issues that are likely to be played out in future decisions. In particular, a key issue in the oral hearings of these cases before the Supreme Court was whether the law of armed conflict provided an explicit legal basis for detention in conflicts involving non-state actors. For example, was the UK government within its rights to detain a suspected member of the Taliban. </p>
<p>The Supreme Court dodged the heart of this issue by examining the relevant UN Security Council resolutions, rather than the law of armed conflict. The court’s arguments here were somewhat convoluted, and appear difficult to reconcile with the previous <a href="http://hudoc.echr.coe.int/eng#%7B%22fulltext%22:%5B%22al-jedda%22%5D,%22documentcollectionid2%22:%5B%22GRANDCHAMBER%22,%22CHAMBER%22%5D,%22itemid%22:%5B%22001-105612%22%5D%7D">Al-Jedda</a> ruling by the European Court of Human Rights. So it is likely that this issue will be pursued further before the European Court of Human Rights, either on appeal or in future cases. </p>
<p>Although this part of the ruling constitutes a “win” for the British government, as noted by the legal scholar <a href="http://www.ejiltalk.org/a-trio-of-blockbuster-judgments-from-the-uk-supreme-court/">Marko Milanovic</a>, the victory may be hollow. It may mean that in the absence of a UN Security Council resolution, the UK will need to establish explicit legal authority to detain during military operations under national law. A waiver from the ECHR modifying the normal human rights standards, and permitting such detention, will almost certainly be necessary. Legal uncertainty persists.</p>
<p>The Supreme Court’s three judgements are likely to be scrutinised by lawyers in great detail. But it is already clear the rulings will pave the way for significant future litigation and could open the door to a number of detention and rendition cases arising from the “war on terror”.</p><img src="https://counter.theconversation.com/content/71396/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Daragh Murray does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Three key rulings by the UK Supreme Court and their legal implications.Daragh Murray, Lecturer in International Human Rights Law at Essex Law School, University of EssexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/701602017-01-11T13:09:55Z2017-01-11T13:09:55ZNorway’s human rights appeal over the prison conditions of Anders Breivik – explained<p>A human rights appeal involving the detention conditions of Norwegian mass shooter Anders Behring Breivik began on January 10. </p>
<p>Breivik, who killed 77 people in attacks in Oslo and on the island of Utøya in July 2011, is serving his sentence in Telemark prison at Skien. Just as his conviction and sentencing gained much international attention, so too did the <a href="http://www.domstol.no/contentassets/9082215b86804731af6ddc9691116cf3/15-107496tvi-otir---dom-20042016breivik.pdf">judgment</a> of Oslo District Court in April 2016 that Breivik’s human rights had been violated in detention. Since then, it has emerged that his prison conditions <a href="http://www.abc.net.au/news/2016-12-22/norway-mass-killer-has-jail-isolation-measures-slightly-relaxed/8140722">have been relaxed</a>, including that he no longer has to speak to his lawyer through a glass wall. </p>
<p>Very soon after the Oslo judgment was delivered, an <a href="http://www.thelocal.no/20160426/norway-to-appeal-breivik-human-rights-ruling">appeal was launched</a> by the Norwegian Ministry of Justice and Public Security, which is being heard in the prison at Skien. </p>
<p>The Oslo judgment dealt with arguments put forward by the prisoner’s lawyer based mainly on two sections of the <a href="http://www.echr.coe.int/Documents/Convention_ENG.pdf">European Convention on Human Rights</a>: Article 3 (prohibition of ill-treatment) and Article 8 (right to respect for private and family life). In spite of what was widely reported at the time – that Breivik <a href="http://www.independent.co.uk/news/world/europe/anders-breivik-demands-better-video-games-and-threatens-hunger-strike-over-jail-hell-9130592.html">complained</a> he did not have the latest version of PlayStation – the real issues in the case were related to the nature of his solitary confinement and repetitive strip-searching. </p>
<p>In its appeal, the Norwegian Ministry of Justice and Public Security will be highlighting a number of prominent European Court of Human Rights (ECHR) cases to try and persuade the appeal court that Breivik’s human rights have not been violated. </p>
<h2>Solitary confinement</h2>
<p>One of these significant cases is that of <a href="http://hudoc.echr.coe.int/app/conversion/pdf?library=ECHR&id=003-3906939-4510631&filename=Chamber%20judgment%20Babar%20Ahmad%20and%20Others%20v.%20the%20United%20Kingdom%2010.04.2012.pdf">Ahmad and Others v United Kingdom (2012)</a>. This is the incident involving Abu Hamza, Babar Ahmad, and other applicants who were all facing terrorism charges in the US and raised concerns about the conditions they would face if extradited. The ECHR ruled that isolation in prison would not immediately constitute inhuman or degrading treatment or punishment. Instead it said: “The particular conditions, the stringency of the measure, its duration, the objective pursued and its effect on the person concerned had to be taken into account.” </p>
<p>One of the arguments put forward by the applicants in the Ahmad case related to the specific rigorous conditions in the “super-max” US federal facility at <a href="https://www.bop.gov/locations/institutions/flm/">ADX Florence</a>. The ECHR noted, among other things, that “although inmates are confined to their cells for the vast majority of the time, a great deal of in-cell stimulation is provided through television and radio channels, frequent newspapers, books” and so on. The ruling <a href="http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/9590016/Key-events-in-battle-to-extradite-Abu-Hamza.html">allowed</a> the extraditions to go ahead.</p>
<p>Prior to the Ahmad ruling, the case of <a href="http://hudoc.echr.coe.int/eng?i=001-76169">Ramirez Sanchez v France (2006)</a> had also been decided by the ECHR Grand Chamber. The applicant in that case, better known as “Carlos the Jackal”, endured isolation in detention for a period of eight years – notably longer than that experienced by Breivik who has been in isolation since 2011. During those eight years, Sanchez had no contact with other prisoners but was allowed visits from family and a substantial team of lawyers. The ECHR ruled that this meant his being held in isolation did not violate Article 3. </p>
<p>The Norwegian state will be pressing the point that other than the existence of a glass partition between Breivik and his visitors (which was absent in Sanchez’s case), the isolated conditions encountered by Carlos the Jackal lasted longer and were arguably just as restrictive as in the Norwegian case.</p>
<h2>Repeat strip-searching</h2>
<p>The other major issue the court will consider in the appeal involves strip-searching. As well as a gym facility, Breivik has access to an exercise yard in the prison where he can remain active, but still be kept separate from other prisoners and strictly supervised, including by surveillance cameras. He was strip-searched after visits to the exercise yard and when he was transferred between prison and police custody. On some occasions female prison staff were present when Breivik was strip-searched. </p>
<p>The original Norwegian ruling that Breivik’s human rights had been violated in detention mainly cited the case of <a href="http://hudoc.echr.coe.int/eng?i=001-60915">Van der Ven v Netherlands (2003)</a> on this point. This case involved weekly strip-search examinations and these were found to violate Article 3 – however the searches of the prisoner, Franciscus Cornelis van der Ven, involved intrusive internal inspection, which is not what happened to Breivik. </p>
<p>One case not mentioned in the Oslo District Court judgment, however, was that of <a href="http://hudoc.echr.coe.int/eng?i=001-127413">S.J. (no.2) v Luxembourg (2013)</a>, which involved the strip search of a prisoner in facilities where third parties could see him. In this case, the ECHR emphasised the absence of any intention by the prison staff to humiliate or debase the prisoner and found no violation of the prisoner’s human rights under Article 3 of the convention. It could make sense for this case to be referred to by the Norwegian government in its appeal.</p>
<p>These are the points that the appeal hearing will be asked to address by Norway’s Ministry of Justice and Public Security, as it seeks to overturn the original ruling. The appeal court will have to determine whether the threshold has been met for degrading treatment, whether the humiliation or debasement of the prisoner has taken place, or been intended, as well as the impact upon the prisoner.</p><img src="https://counter.theconversation.com/content/70160/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>William Henderson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The European Court of Human Rights will consider whether Breivik’s human rights have been violated by his solitary detention.William Henderson, Lecturer in Law, Glasgow Caledonian UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/665042016-10-04T15:53:58Z2016-10-04T15:53:58ZWhy human rights law is not a threat to the British armed forces<p>In recent weeks, a number of public figures, including Prime Minister <a href="https://www.theguardian.com/world/2016/sep/21/theresa-may-will-oppose-vexatious-allegations-against-iraq-uk-troops">Theresa May</a> and one of her predecessors, <a href="https://www.theguardian.com/politics/2016/sep/25/tony-blair-voices-anger-at-pursuit-of-british-soldiers-for-alleged-war-abuses">Tony Blair</a>, have criticised the application of international human rights law to the British armed forces. This was sparked by the work of the <a href="https://www.gov.uk/government/groups/iraq-historic-allegations-team-ihat">Iraq Historical Allegations Team</a> (IHAT), which was established to review and investigate allegations that UK armed forces abused Iraqi civilians in the period 2003-2009.</p>
<p>In response, the defence secretary, Michael Fallon, <a href="http://www.bbc.co.uk/news/uk-politics-37553504">announced</a> at the Conservative Party conference that the government intends to “derogate” – or suspend – some of the armed forces’ obligations under the <a href="http://www.echr.coe.int/Documents/Convention_ENG.pdf">European Convention on Human Rights</a> during future armed conflicts. </p>
<p>Much of this appears to be based on a misconception that the application of human rights law is a threat to the proper functioning of the armed forces. The reality is, however, that human rights law not only remains applicable during wartime, but it is also able to take account of the particular circumstances of armed conflict and so is not a threat to the military. </p>
<h2>How derogations work</h2>
<p>Derogations of the sort the government has announced are an accepted feature of human rights law. They allow certain rights to be modified – but not negated – to facilitate their application in times of emergency or war. A good example is internment, the detention of individuals who pose a future security threat. In normal circumstances, internment is not permissible under the European Convention on Human Rights – but if internment is necessary it will be permitted on the basis of a valid derogation. For example, the UK <a href="http://hudoc.echr.coe.int/eng#%7B%22fulltext%22:%5B%225310/71%22%5D,%22documentcollectionid2%22:%5B%22GRANDCHAMBER%22,%22CHAMBER%22%5D,%22itemid%22:%5B%22001-57506%22%5D%7D">lawfully derogated</a> from the convention to allow interment in Northern Ireland during The Troubles. </p>
<p>While some rights may be modified in times of emergency or war, international human rights law makes clear that certain rights, such as the prohibition of torture, can never be derogated from, as torture can never be justified. </p>
<p>By announcing it will seek to pursue a derogation in future conflicts, May’s government appears to accept that, in principle, the European convention continues to apply to UK forces during armed conflict, albeit with certain rights modified. This means that the activities of UK forces will remain subject to the supervision of the European Court of Human Rights. </p>
<h2>Human rights don’t ‘stop at the border’</h2>
<p>The majority of commentators who have criticised the historical Iraq investigations do not seem to be calling for immunity from war crimes. No self-respecting army officer would say that soldiers are above the law; rather the British armed forces are interested in ensuring that they do not get branded as war criminals. So there is wide agreement on all sides that some form of investigation must take place when a war crime is suspected.</p>
<p>Instead, the debate has arisen due to what appears to be the unprecedented scale and scope of investigations, and the perception that soldiers are being held to an impracticable high-standard as a result of applying human rights law to the battlefield. </p>
<p>Critics therefore argue that human rights law should not apply to military operations abroad. But it is already widely accepted by international and UK courts that human rights law does not apply just to state agents operating within the UK, and so does not “<a href="http://www.bailii.org/ew/cases/EWCA/Civ/2016/811.html">stop at the border</a>”. </p>
<p>Imagine a situation in which a state sends police forces across the border to summarily execute someone: without allowing for extra-territorial human rights obligations, such actions would remain without an appropriate legal course of redress for those affected. As noted by the <a href="http://hrlibrary.umn.edu/undocs/html/56_1979.htm">UN Human Rights Committee</a> back in the early 1980s: “It would be unconscionable” not to hold that state responsible for violations “on the territory of another state, which … it could not perpetrate on its own territory.”</p>
<h2>What happens during armed conflict</h2>
<p>A second strand of criticism is that in war situations, human rights law (such as the European Convention on Human Rights) should give way to the law of armed conflict (such as the <a href="https://www.law.cornell.edu/wex/geneva_conventions">Geneva Conventions</a>). Here too, international bodies have <a href="http://www.icj-cij.org/docket/files/95/7495.pdf">repeatedly</a> <a href="http://www.icj-cij.org/docket/files/116/10455.pdf">affirmed</a> that human rights law does, in principle, continue to apply during wartime. Yet this does not mean that states are subject to the same human rights obligations in war as in peace: both the continued application of the law of armed conflict, and the factual circumstances of war, can modify the extent of the armed forces’ human rights obligations. This includes the possibility of lawful derogations if necessary.</p>
<p>Human rights law is flexible and realistic. For example, if a suspicious death occurs, human rights law requires the state to investigate. But, as <a href="http://hudoc.echr.coe.int/eng#%7B%22fulltext%22:%5B%22al-skeini%22%5D,%22documentcollectionid2%22:%5B%22GRANDCHAMBER%22,%22CHAMBER%22%5D,%22itemid%22:%5B%22001-105606%22%5D%7D">the European Court has acknowledged</a>, this obligation will be very different for police in Manchester or soldiers in Basra, where the security situation may affect the ability to investigate. </p>
<p>Ultimately, the proper co-application of human rights law and the law of armed conflict will not frustrate military operations, and would not prevent, for example, the killing of an enemy soldier during battlefield hostilities. Although the right to life continues to apply, it is interpreted differently in times of war. Unlawful killing will remain prohibited, but during hostilities a violation of the human right to life will usually be found only in relation to conduct that violates the law of armed conflict. </p>
<p>However, the further away one moves from the battlefield, and outside of active hostilities and certain detention frameworks, the co-application of the two types of law will lean closer to a human rights law standard, in line with the level of control exerted by the armed forces. </p>
<p>This means that the recent criticisms have directed fire at the wrong target. Properly interpreted, and with appropriate use of lawful derogations, human rights law does not place an undue burden on the armed forces. Nor does it undermine their ability to effectively conduct military operations. And even if human rights law did not apply, there would still be wide agreement that the actions of armed forces must be subjected to scrutiny, and that rogue and unlawful behaviour must be addressed. This can only be achieved when effective investigations take place. </p>
<p>Investigations of suspected breaches of law are necessary not only for securing the rights of affected individuals, but also for the interests of the military itself. By ensuring accountability where necessary, by disproving baseless allegations, and by demonstrating a commitment to the rule of law, the armed forces publicly demonstrate their integrity and professionalism – and ensure the public’s trust.</p><img src="https://counter.theconversation.com/content/66504/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Noam Lubell is leading an international project of expert meetings aimed at producing a new document on 'Best Practices for Investigations During Armed Conflict'. The project has received funding from the Swiss and Dutch Governments. </span></em></p><p class="fine-print"><em><span>Daragh Murray does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The UK government plans to suspend parts of the European Convention on Human Rights in future conflicts.Noam Lubell, Professor of Law of Armed Conflict and Head of Essex Law School, University of EssexDaragh Murray, Lecturer in International Human Rights Law at Essex Law School, University of EssexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/661022016-09-27T14:37:12Z2016-09-27T14:37:12ZSocial workers give voice to people at the margins – Scotland plans to take it away<figure><img src="https://images.theconversation.com/files/139436/original/image-20160927-10594-k3eoje.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">All together now.</span> <span class="attribution"><a class="source" href="http://www.shutterstock.com/pic-182760488/stock-photo-relationships-and-love-concept-womans-hands-showing-paper-cutout-team.html?src=HmuzFLbWHJR5wVPopqOF5A-1-5">Syda Productions</a></span></figcaption></figure><p>Who is best placed to help with a child’s welfare? That’s the question at the heart of one of the Scottish government’s most controversial plans, to give every child a “named person” to support them from birth to the age of 18. </p>
<p>Professionals like health visitors, teachers and youth workers already play this role in Scotland for children with specific needs, such as physical disabilities. They help the child and their parents access public services and offer them advice and support. They are the first point of contact for anyone with concerns about the child’s welfare, and can access confidential information like medical records if they think the child’s welfare is at risk. </p>
<p>The Scottish government’s plan to extend this to all children is part of a <a href="http://www.gov.scot/Topics/People/Young-People/gettingitright">package of legislation</a> called Getting It Right For Every Child. It <a href="http://news.scotland.gov.uk/News/Children-and-Young-People-Bill-passed-979.aspx">aims to</a> make Scotland “the best place in the world for children to grow up”. England, Wales and Northern Ireland have passed similar legislation aimed at supporting children, but having a named person for everyone is a purely Scottish invention. </p>
<p>A coalition of pressure groups branded <a href="http://no2np.org">NO2NP</a> argue the plan intrudes too much on family privacy and will waste resources. In July <a href="http://www.bbc.co.uk/news/uk-scotland-scotland-politics-36903513">they won</a> a legal challenge against the plan at the Supreme Court in London on the grounds it breached the European Convention on Human Rights and exceeded Scotland’s devolved powers. </p>
<p>They hoped the Scottish government would scrap the plan but instead it is redrafting the legislation. A battle is brewing in Holyrood when the redraft emerges in the coming weeks: the Conservatives are <a href="http://www.scottishconservatives.com/named-person/">bitterly opposed</a> while Labour wants the policy <a href="http://www.heraldscotland.com/news/14730568.Labour_renews_calls_for_over_16_year_olds_to_be_exempted_from_Named_Person_scheme/">restricted</a> to under 16s. Since the ruling SNP don’t have a majority, things could get interesting. </p>
<p>As a former social worker, I also oppose the plan but for different reasons. My concern is children with difficult family backgrounds. Part of the proposal is that social workers will lose their current role in helping these children before they get too deep into social services or the criminal justice system. </p>
<p>Instead it will go to the named person – a professional already with plenty on their plate and no experience in handling such problems. At a time when social work in Scotland is <a href="http://www.bbc.co.uk/news/uk-scotland-scotland-politics-36903513">being</a> seriously curtailed, this looks like another step in the wrong direction. </p>
<h2>Talk time</h2>
<p>To explore these issues, we held a <a href="http://www.gcu.ac.uk/newsroom/news/article/?id=221970">public debate</a> at Glasgow Caledonian University in partnership with the London-based <a href="http://www.instituteofideas.com">Institute of Ideas</a>. Opposing the legislation were <a href="http://www.abertay.ac.uk/staff/s_waiton_cddba.html">Stuart Waiton</a>, a sociologist and criminologist from Abertay University, in Scotland, and <a href="http://www.gla.ac.uk/schools/law/staff/adamtomkins/">Adam Tomkins</a>, a Conservative MSP. Waiton argued that the proposal reflected a belief that family life shouldn’t fall under the purview of the state. He said this removed a family’s ability to handle problems in its own way. </p>
<p>Martin Crewe, director of the children’s charity <a href="http://www.barnardos.org.uk/what_we_do/barnardos_today/scotland.htm">Barnardo’s Scotland</a>, countered that named person was a natural extension of current practice and should not be seen as an encroachment into family life. He argued it merely offered families a professional who would act as a direct point of contact and guide them through the often confusing and complex world of health, education and social work. </p>
<p>Crewe was supported by Mary Glasgow from charity <a href="http://www.children1st.org.uk">Children 1st</a> and Jane McCallum, a health visitor for Greater Glasgow Health Board, who said that in her role as a named person, she had supported families with all kinds of challenges. These included accessing speech and language therapy for a child and securing a boiler repair for a grandmother looking after her grandchildren. </p>
<p>While I agreed with the supporters of the legislation that the state needs some involvement in family life, I raised two major concerns. First, the proposed legislation would enable the named person to intervene in family life in the name of “well-being” – as opposed to social workers’ existing test of “risk of significant harm or injury”. </p>
<p>“Well-being” is woollier and looks like a state-imposed framework for parenting. Here I agree with the legislation’s opponents. The powers of named persons to intervene should require a test of something more like “significant risk” to the child. Otherwise, they should always need parents’ consent. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/139438/original/image-20160927-8256-vceth4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/139438/original/image-20160927-8256-vceth4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/139438/original/image-20160927-8256-vceth4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=397&fit=crop&dpr=1 600w, https://images.theconversation.com/files/139438/original/image-20160927-8256-vceth4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=397&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/139438/original/image-20160927-8256-vceth4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=397&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/139438/original/image-20160927-8256-vceth4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=499&fit=crop&dpr=1 754w, https://images.theconversation.com/files/139438/original/image-20160927-8256-vceth4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=499&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/139438/original/image-20160927-8256-vceth4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=499&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Who best to prevent the downward spiral?</span>
<span class="attribution"><a class="source" href="http://www.shutterstock.com/pic-180546830/stock-photo-child-with-disorder-problem-age-3-6-looks-out-of-a-window-with-brick-wall-in-the-background-copy-space-concept-photo-of-children-health-and-medical-care.html?src=Br-uxWnDwY78b1f7mTlKpw-1-11">ChameleonsEye</a></span>
</figcaption>
</figure>
<p>Then we come to the effect of the proposals on social workers. If a nursery on a housing estate is worried about a child not turning up, they currently call a social worker. If a child is excluded from school and gets referred to a <a href="http://www.scra.gov.uk">children’s hearing</a> for assessment, a social work investigates. Social workers have the time and expertise to look into the situation and make recommendations that can stop a problem from spiralling out of control. </p>
<p>Now this preventative role will go to the named person. But this teacher or health visitor will probably have neither the time nor expertise to play the same role: more likely they will instigate a formal process. The nursery child will end up in care; the excluded pupil will stay excluded. Those on the margins will no longer have someone speaking up for them, and society will potentially be damaged in the process. </p>
<p>Social workers will only work on harder, more challenging cases like child protection and persistent offenders. Making a difference in this area is almost impossible, so it removes one of the main attractions of the job. </p>
<p>There’s a chance with named person to create something that supports all Scottish children but particularly those most in need. It could become a template for the rest of the UK and further afield. But first the Scottish government needs to listen to concerns about state intervention and where it is taking social work. Get this wrong and it could create a real mess further down the line.</p><img src="https://counter.theconversation.com/content/66102/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David McKendrick does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Nicola Sturgeon’s ‘named person’ plan for supporting children is a good idea with a major flaw.David McKendrick, Lecturer in Social Work, Glasgow Caledonian UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/646292016-08-31T10:42:38Z2016-08-31T10:42:38ZWhy the case against the Human Rights Act is so weak<figure><img src="https://images.theconversation.com/files/136067/original/image-20160831-30786-9i979x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Don't turn off the lights. </span> <span class="attribution"><span class="source">Sam72/www.shutterstock.com</span></span></figcaption></figure><p>The <a href="http://www.legislation.gov.uk/ukpga/1998/42/contents">Human Rights Act</a> was enacted in 1998 and made the rights set down in the <a href="http://www.echr.coe.int/Documents/Convention_ENG.pdf">European Convention on Human Rights</a> (ECHR) part of UK law for the first time. The ECHR was drafted after World War II and places obligations on its signatories to protect certain rights, such as the right to a fair trial, the right not to be tortured and the right to freedom of expression. The UK was instrumental in its drafting and was the first country to ratify it in 1951. </p>
<p>Now Liz Truss, Britain’s justice secretary and Lord Chancellor, <a href="http://www.independent.co.uk/news/uk/politics/scrap-human-rights-act-british-bill-of-rights-theresa-may-justice-secretary-liz-truss-a7204256.html">has confirmed</a> that the UK government intends to fulfil the Conservative manifesto promise to replace the Human Rights Act with a UK Bill of Rights. But the case for doing this is unconvincing and unnecessary. </p>
<p>Although Theresa May <a href="https://theconversation.com/theresa-mays-call-for-uk-to-exit-european-convention-on-human-rights-will-delight-human-rights-abusers-58435">mooted the idea</a> of withdrawing the UK from the ECHR during the EU referendum campaign, since becoming British prime minister she <a href="http://www.theguardian.com/politics/2016/jul/11/theresa-may-conservative-immigration-human-rights-education">has stated</a> that after Brexit she does not intend to do so. Given this, it seems pointless to consider replacing the Human Rights Act with a new UK Bill of Rights.</p>
<h2>No threat to sovereignty</h2>
<p>Before the Human Rights Act was introduced, the UK’s obligations under the ECHR existed only in international law, so that only the European Court of Human Rights in Strasbourg could hear cases concerning breaches of the Convention brought against the UK. The Conservatives argue that “<a href="https://www.conservatives.com/ShareTheFacts/post?name=restoring-common-sense-human-rights&id=539d1217-a534-4461-bbf7-7432cf04b790">Britain shouldn’t be told what to do by judges in Strasbourg</a>”. Yet the Act enables UK judges to decide ECHR cases rather than judges in Strasbourg having to hear them. </p>
<p>The Act also incorporates the ECHR into UK law while protecting parliamentary sovereignty – the principle that parliament can enact any law whatsoever and that the courts cannot rule an Act of Parliament to be invalid.</p>
<p>Under the Act, parliament remains free to legislate in breach of the ECHR and, as demonstrated by the refusal to alter a <a href="https://fullfact.org/law/votes-prisoners-politics-versus-human-rights-law/">ban on the rights of prisoners</a> to vote, may refuse to comply with judgements of the Strasbourg court. So, the suggestion by May that the ECHR and the Human Rights Act “<a href="https://www.gov.uk/government/speeches/home-secretarys-speech-on-the-uk-eu-and-our-place-in-the-world">bind(s) the hands of parliament</a>” is incorrect. If an Act of Parliament is incompatible with the ECHR, UK courts may issue a declaration to that effect but this does not affect the legislation’s validity or the outcome of any case. Neither the UK courts, nor Strasbourg, have the power to strike down legislation because it conflicts with the ECHR. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/136062/original/image-20160831-30797-n47kj5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/136062/original/image-20160831-30797-n47kj5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=394&fit=crop&dpr=1 600w, https://images.theconversation.com/files/136062/original/image-20160831-30797-n47kj5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=394&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/136062/original/image-20160831-30797-n47kj5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=394&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/136062/original/image-20160831-30797-n47kj5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=495&fit=crop&dpr=1 754w, https://images.theconversation.com/files/136062/original/image-20160831-30797-n47kj5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=495&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/136062/original/image-20160831-30797-n47kj5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=495&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Where the judges sit in Strasbourg.</span>
<span class="attribution"><span class="source">Oleg Mikhaylov/www.shutterstock.com</span></span>
</figcaption>
</figure>
<p>The government has not yet published a draft of its proposed UK Bill of Rights, <a href="https://www.theguardian.com/law/2016/aug/22/uk-bill-of-rights-will-not-be-scrapped-says-liz-truss">though there are reports that it is ready</a>. But, like the Human Rights Act, it would apply only within the UK and would not alter the way in which the Strasbourg court works.</p>
<h2>Respecting UK courts</h2>
<p>Some Conservatives claim that the Human Rights Act “<a href="http://www.conservatives.com/%7E/media/Files/Downloadable%20Files/HUMAN_RIGHTS.pdf">undermines the role of UK courts in deciding on human rights issues in this country</a>” because it requires them to “take into account” decisions of the Strasbourg court. Yet it is difficult to see why this undermines UK courts. It simply obliges them to consider applying the ECHR in a way which is consistent with the Strasbourg court. It does not require them to slavishly follow Strasbourg but it does mean they can apply the ECHR in a way which respects the UK’s laws and principles and which is unlikely to be ruled a breach of the ECHR by the Strasbourg court. This empowers, rather than undermines, UK courts because they are able to conclusively determine ECHR matters rather than UK citizens having to rely on the Strasbourg court to enforce their rights.</p>
<p>The deportation of the extremist Abu Qatada, and other suspected terrorists, is <a href="https://s3-eu-west-1.amazonaws.com/manifesto2015/ConservativeManifesto2015.pdf">often cited as a reason for replacing the Human Rights Act</a>. Qatada’s deportation to Jordan was blocked by the UK Court of Appeal, and later by Strasbourg, because he may have been subject to trial using evidence obtained by torture in Jordan. Yet, once the government had obtained sufficient assurances from the Jordanians, he was finally <a href="http://www.bbc.co.uk/news/uk-23213740">lawfully deported</a> in 2013. </p>
<p>The government’s reaction to the Qatada case suggests that they believe ministers should have the power to deport people at their whim, without judicial oversight and with no regard to what may happen to them in the receiving country – but that would not be the hallmark of a democracy committed to the rule of law.</p>
<p>The former Lord Chief Justice, Lord Bingham, <a href="http://www.cpl.law.cam.ac.uk/sir-david-williams-lectures2006-rule-law/rule-law-text-transcript">once said</a>: “There are countries in the world where all judicial decisions find favour with the government, but they are not places where one would wish to live.” In any healthy democracy, there will, and should, be decisions which do not go the government’s way. This is not a sufficient reason for altering the protection of human rights. </p>
<p>The Human Rights Act incorporates the ECHR into UK law in a simple, elegant and sensible way while protecting long-standing principles of the UK constitution. It also allows disputes about those rights to be heard by UK courts rather than Strasbourg. </p>
<p>Talk of replacing it seems to be little more than playing to the gallery, a pandering to the Conservative party’s supporters. The result of the Brexit referendum should warn against such posturing and such an unnecessary, regressive step which may weaken the protection afforded to the rights of citizens in the UK.</p><img src="https://counter.theconversation.com/content/64629/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John McGarry does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It is no threat to UK sovereignty and protects vulnerable citizens – so why replace the Human Rights Act?John McGarry, Reader in Law, Edge Hill UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/584352016-04-26T11:50:10Z2016-04-26T11:50:10ZTheresa May’s call for UK to exit European Convention on Human Rights will delight human rights abusers<p>Theresa May has surprised nobody by <a href="http://www.theguardian.com/politics/2016/apr/25/uk-must-leave-european-convention-on-human-rights-theresa-may-eu-referendum">calling for the UK to leave the European Convention on Human Rights (ECHR)</a>. The Home Secretary isn’t fond of the convention or the Strasbourg-based European Court of Human Rights. Her intervention into the EU referendum campaign for the remain camp seems based on the rationale that the EU is not the real threat to the UK’s sovereignty, but rather the totally separate ECHR and its court. She said: </p>
<blockquote>
<p>The ECHR can bind the hands of parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals, and does nothing to change the attitudes of governments like Russia’s when it comes to human rights. So regardless of the EU referendum, my view is this: if we want to reform human rights laws in this country, it isn’t the EU we should leave but the ECHR and the jurisdiction of its court.</p>
</blockquote>
<p>Comments such as these from Britain’s home secretary will provide comfort to human rights abusers right across the 47 member states of the Council of Europe (the parent organisation of the ECHR and European Court of Human Rights). If they were made purely for domestic political gain in the EU referendum debate, it is an irresponsible and dangerous strategy.</p>
<p>But there’s another problem with May’s intervention. Although they are separate international organisations, leaving the Convention system is, in practical terms, incompatible with being an EU member. In fact, every <a href="http://europa.eu/about-eu/countries/member-countries/index_en.htm">member of the EU</a> is also <a href="http://www.coe.int/en/web/conventions/search-on-treaties/-/conventions/chartSignature/3">a party to the ECHR</a>. </p>
<p>Ratifying the ECHR, and other human rights treaties, was made a precondition of membership of the EU for the more recent members such as <a href="http://ec.europa.eu/enlargement/archives/pdf/dwn/opinions/romania/ro-op_en.pdf">Romania</a>. After the Lisbon treaty, there is now a process under way by which <a href="http://www.echr.coe.int/Pages/home.aspx?p=court/accessioneu&c=">the EU itself will sign up to the ECHR</a> – so that if EU laws affect your human rights, you will be able to complain to the European Court of Human Rights. </p>
<p>May’s comments seem to ignore these facts. Or her intervention for the remain camp was a coded signal that she is – at the very least – hedging her bets. </p>
<h2>Not a new pastime</h2>
<p>Bashing the European Court of Human Rights is not a new development in Conservative policy – although it’s worth remembering that it was one of May’s predecessors as a Tory Home Secretary, David Maxwell Fyfe (also a prosecutor at Nuremberg, no less), <a href="http://www.journalonline.co.uk/Magazine/56-9/1010095.aspx">who helped to draft the 1950 ECHR</a>.</p>
<p>In 2011, prime minister David Cameron notoriously described the thought of implementing one particular European Court of Human Rights judgment as making him “<a href="http://www.theguardian.com/law/2011/may/06/david-cameron-european-law-allergy">physically ill</a>”. This was the 2005 judgment in <em>Hirst v UK</em>, in which prisoner John Hirst challenged the UK’s blanket ban on prisoners voting – and won. The UK is still refusing to implement the judgment and allow prisoners to vote, despite <a href="http://www.bbc.co.uk/news/uk-34450879">a recent EU case</a> suggesting that a more targeted voting ban could easily survive scrutiny.</p>
<p>More recently, the <a href="https://www.conservatives.com/manifesto">Conservative party’s 2015 manifesto</a> committed it to curtailing the role of the European Court of Human Rights over the UK. Speaking in parliament in June 2015, Cameron <a href="http://www.theguardian.com/law/2015/jun/03/cameron-refuses-to-rule-out-leaving-european-convention-on-human-rights">refused to rule out</a> leaving the ECHR.</p>
<h2>Russia taking the lead</h2>
<p>But since then, Russia has <a href="http://www.independent.co.uk/news/world/europe/vladimir-putin-signs-law-allowing-russian-court-to-overthrow-international-human-rights-rulings-a6773581.html">introduced a law</a> that gives the Russian Constitutional Court the power to “overrule” European Court judgment. Russia has ratified the ECHR, but is not a member of the EU.</p>
<p>Initially, the significance of Russia’s move was <a href="http://www.coe.int/en/web/portal/-/russia-s-new-law-on-the-constitutional-court-jagland-a-solution-should-be-possible-">played down</a> by the secretary general of the Council of Europe, but it was later condemned by the Council of Europe’s Commission for Democracy Through Law as being <a href="http://www.coe.int/en/web/portal/-/russian-law-on-constitutional-court-incompatible-with-international-obligations-must-be-amended-says-venice-commission">incompatible with Russia’s obligations under international law</a>. </p>
<p>Earlier this month, the Russian Constitutional Court made its first ruling using its new powers. It was <a href="https://www.hrw.org/news/2016/04/19/russia-constitutional-court-backs-selective-justice">condemned by Human Rights Watch</a> as dealing: “a devastating blow for people in Russia who turn to the European Court because they can’t find justice in the Russian courts”. The topic of the case? A blanket ban on Russian prisoners from voting.</p>
<h2>Signal to human rights abusers</h2>
<p>In 2013, the Council of Europe Human Rights Commissioner had <a href="https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=2365759&SecMode=1&DocId=2062696&Usage=2">noted</a> that the UK’s recent record of hostility and non-compliance with ECHR judgments “would have far-reaching deleterious consequences; [sending] a strong signal to other member states”. Those signals would appear to have already been received loud and clear in Russia. The latest comments from May could lend them further amplification.</p>
<p>I have worked as an expert advisor to the Council of Europe on projects in a range of states in central and Eastern Europe, all of which embarked a process of economic and democratic reform after the events of 1989. A tremendous amount of work by and with these states has gone into improving the protection of human rights, and there is much work still to be done. In some countries, such as Russia and Hungary, there have been <a href="http://www.pinknews.co.uk/2015/11/06/russia-wants-to-expand-anti-gay-law-to-ban-all-public-homosexuality/">troubling</a> and <a href="https://freedomhouse.org/report/freedom-press/2015/hungary">retrogressive</a> steps. </p>
<p>May’s intervention could make the UK a role-model for back-sliding states.</p><img src="https://counter.theconversation.com/content/58435/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>James A. Sweeney has received funding from the Socio-Legal Studies Association to conduct research into traditional and transitional justice in Kosovo. He has received funding from the British Council to conduct research into the reception of ECHR jurisprudence in Azerbaijan. James has consulted to Agencia Consulting on projects where he has trained the Ukrainian Supreme Court (2011); helped to establish a legal research syllabus for the Kosovo Judicial Institute (2014); and convened workshops for the Supreme Court and Constitutional Court of Kosovo (2013-14). In the past he has given expert advice to the Council of Europe on projects in Armenia, Azerbaijan, Kosovo and Georgia. This article does not reflect the views of the research councils or other public funders.
</span></em></p>The home secretary is campaigning against Brexit, but with a caveat.James Sweeney, Professor, Lancaster Law School, Lancaster UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/424982015-05-29T05:41:16Z2015-05-29T05:41:16ZIt’s not a British bill of rights we need, but to move away from human rights altogether<p>Contrary to what we were all expecting, we <a href="http://www.bbc.co.uk/news/uk-politics-32896923">now know that</a> the Conservatives are putting the brakes on their plans for human rights reform. The complexity and controversy surrounding the whole area seems to have prompted a decision to allow time for consultation ahead of the stated intention: to repeal the <a href="http://www.legislation.gov.uk/ukpga/1998/42/contents">Human Rights Act 1998</a>, which requires UK courts and law-makers to take account of the <a href="http://www.echr.coe.int/Documents/Convention_ENG.pdf">European Convention on Human Rights</a> and judgments by the <a href="http://www.echr.coe.int/Pages/home.aspx?p=home">European Court of Human Rights</a> in Strasbourg, and replace it with a UK “bill of rights”. </p>
<p>It <a href="http://www.independent.co.uk/news/uk/politics/queens-speech-2015-plan-for-british-bill-of-rights-put-on-the-back-burner-10279717.html">may now be</a> more than a year before legislation emerges. This provides a suitable window to make a different philosophical argument to what either side is saying at present. We should not be talking about a choice between the European convention and a British bill of rights. Instead we should be rejecting both. </p>
<h2>The trouble with Strasbourg</h2>
<p>First off, there is absolutely a case for repealing the Human Rights Act. As a guiding principle, elected politicians should decide the content of the laws that apply within their political jurisdiction – an idea with a <a href="http://www.constitution.org/cmt/avd/law_con.htm">very long pedigree</a>. They should decide what particular legal rights and duties the citizens within their polities have. </p>
<p>We are well past the days of absolute parliamentary sovereignty, admittedly. It should be more of a presumption in favour, in my view. It seems reasonable to argue for making exceptions – such as the economic advantages that we derive from being in the European Union. But I don’t see the same good reasons to extend this to the European Convention on Human Rights. </p>
<p>We have to draw a distinction between things that we value and the legal right to those things. For instance, human beings all need food, clothing and shelter. They do not need a legal right to these things. You can apply the same logic to the European convention. If we look at <a href="http://www.equalityhumanrights.com/sites/default/files/documents/humanrights/hrr_article_6.pdf">Article 6</a>, for instance, we are said to have a human right to a fair trial. It is of fundamental moral importance that if we are tried for a criminal offence, we are given a fair trial. It is not of fundamental importance that we have a specified explicit legal right to a fair trial. </p>
<p>Or take <a href="http://www.equalityhumanrights.com/sites/default/files/documents/humanrights/hrr_article_3.pdf">Article 3</a>, which conveys a human right to freedom from torture. In the same way as above, we have a moral right not to be tortured whether or not we have such a legal right. It is important that we are not tortured. It is not of the same importance that we have a legal right not to be tortured.</p>
<p>This might appear to open up the accusation that this is ignoring reality, that we are more likely to enjoy these moral rights if they are underpinned by legal rights. But are we? Are people more likely to be given fair trials, or less likely to be tortured if their governments agree to be bound by the rulings of the European Court of Human Rights? It is far from obvious that either has happened since the Human Rights Act was passed in 1998. When someone like the actor Benedict Cumberbatch makes the argument that repealing the Human Rights Act “will mean less protection against state abuse or neglect, and weaken the rights of every single one of us – and the vulnerable most of all”, where is the evidence?</p>
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<h2>Future generations</h2>
<p>The trouble with human rights is that they put a high level of restraint on future legislators to make decisions. Those in favour of human rights want to put certain rights beyond debate, but how can you be sure of what will be best for the future? Better to leave it to the wisdom of future parliaments. </p>
<p>Of course there is the Hitler argument, which was in the minds of the creators of the European convention, that human rights make it harder for a demagogue to inflict their will on a society. I don’t find this convincing. Demagogues will do what they want. Reasonable politicians are needlessly restrained. This is why I would oppose the idea of a British bill of rights too. Better to protect ourselves from government abuses by procedural principles such as restrictions on political advertising, regular national elections and so forth. </p>
<p>In her defence of the Human Rights Act, Scottish first minister Nicola Sturgeon <a href="http://www.heraldscotland.com/politics/scottish-politics/sturgeon-scottish-government-will-oppose-any-attempt-to-scrap-human-right.1431438757">said that</a> it enabled people to challenge the bedroom tax via the courts. Obviously she said this because it chimed with her political point of view. What would she say if someone successfully challenged the Scottish requirement for a simple eight-seven jury verdict under the European convention as not falling within the definition of a fair trial? What would she say if football fans successfully argued that they could sing sectarian songs because they had a right to freedom of speech under the convention? </p>
<p>I imagine she would say that these things were a matter for the Scottish parliament to decide, and not a court. Which is exactly what I would say, too. Political decisions are best left to democratically elected politicians, not human rights lawyers. That should be the UK government’s starting point.</p><img src="https://counter.theconversation.com/content/42498/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hugh McLachlan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Conservatives have got it half-right by seeking to repeal the Human Rights Act. Too bad they want to replace it with something almost as unhelpful.Hugh McLachlan, Professor of Applied Philosophy, Glasgow Caledonian UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/424332015-05-27T13:57:54Z2015-05-27T13:57:54ZPM kicks human rights bill into the long grass – let’s make sure it stays there<p>The government has beaten a tactical retreat over its plans to repeal the Human Rights Act, reportedly due to the disquiet of senior <a href="http://www.theguardian.com/law/2015/may/27/david-cameron-delay-scrap-human-rights-act-queen-speech">Conservative backbenchers</a>.</p>
<p>It had originally planned to bring a bill before parliament in this session to replace the act with a British bill of rights but this was watered down at the last minute. At the state opening of parliament, the Queen announced that the government would merely “bring forward proposals” for a bill.</p>
<p>It is now widely anticipated that a (presumably public) consultation will be held before any measures are brought before parliament.</p>
<p>The bill was a key Conservative <a href="https://s3-eu-west-1.amazonaws.com/manifesto2015/ConservativeManifesto2015.pdf">manifesto pledge</a> in the run-up to the general election. The ostensible aim is to “break the formal link between British courts and the European Court of Human Rights” and to hand greater power to the UK Supreme Court. Despite the reference to the Supreme Court, it has been suggested that parliament would be empowered to <a href="http://www.bbc.co.uk/news/uk-politics-29466113">overrule judgments</a> of the European Court of Human Rights in individual cases.</p>
<p>However, it appeared to be increasingly unlikely that the bill would survive passage through parliament. The government has a majority of just 12 in the House of Commons – which, with opposition parties united against the proposals and senior Tory backbenchers in revolt, makes it difficult to be sure of success on any matter that divides the Conservative Party. The lack of a Conservative majority in the House of Lords, which includes a number of former law lords in its membership, could also lead to amendments and delays.</p>
<p>This ill-conceived proposal – which originates from certain ministers’ ire at “meddlesome judges”, British and European alike – strikes at that most Conservative of ideas, the rule of law itself.</p>
<p>Certain voices in the Conservative Party, most prominently Home Secretary Theresa May, have long disliked the European Convention on Human Rights and the Human Rights Act. Yet, they ignore its Conservative roots.</p>
<p>The most influential man in the inception of the European Convention on Human Rights was <a href="http://www.journalonline.co.uk/Magazine/56-9/1010095.aspx">David Maxwell Fyfe</a>. This Conservative Attorney General, Home Secretary and Lord Chancellor was also de facto chief prosecutor at the Nuremberg trial after the war. He was no “squeamish liberal” – he favoured the death penalty not only at Nuremberg but also subsequently as Home Secretary.</p>
<p>He saw the Council of Europe and the convention as instrumental in building a post-war Europe founded upon peace and the rule of law. In this, he stood on the shoulders of generations of British lawyers who had developed the ancient common law principles that influenced the convention, such as the prohibition of torture and the right to counsel.</p>
<p>Small wonder then, that the best legal minds in the Conservative Party are against the proposal, which is being spearheaded by the first two laymen to serve as Lord Chancellor in at least four centuries – Christopher Grayling and now <a href="http://www.theguardian.com/politics/2015/may/19/michael-gove-sworn-in-lord-chancellor">Michael Gove</a>. Dominic Grieve, the former Attorney General who was sacked last summer for his opposition to these very proposals, and former justice secretary Kenneth Clarke, are among those against the plan.</p>
<p>Now, apparently reckoning that there are too many voices in the party backing Grieve and Clarke, the prime minister has tactically withdrawn for fear that the bill would be voted down.</p>
<h2>In defence of the status quo</h2>
<p>In the post-war period, successive Conservative and Labour governments remained steadfastly committed to the convention system. Distinguished British lawyers served as judges and presidents of the Strasbourg Court, even as the court occasionally ruled against the UK on important cases (such as the perpetration of inhumane treatment, a lesser form of torture, in Northern Ireland during the Troubles).</p>
<p>The anomaly of the British courts being unable to decide claims based on the convention was resolved when the Human Rights Act was enacted in 1998. This empowered British courts to deal with human rights claims in this country and required all governmental bodies to comply with the convention in the exercise of their powers.</p>
<p>An immediate and beneficial effect was empowering British judges to hold ministers to a higher standard of decision-making. Even as certain ministers have made it their mission to rid themselves of meddlesome judicial oversight, the legal professions who work with the act on a daily basis <a href="http://www.counselmagazine.co.uk/articles/what%25E2%2580%2599s-wrong-the-human-rights-act-1998">overwhelmingly favour</a> its retention.</p>
<p>If the act were to be repealed – as the government still presumably hopes – British judges would not be able to apply the convention directly in the UK. Applications from Britain to the Strasbourg court would pointlessly increase as the British courts would be unable to filter claims before they go to Strasbourg – a strange way to give the British Supreme Court “more power”.</p>
<p>The notion that British judges are constrained by Strasbourg in their influence on human rights law is false. The Human Rights Act requires British judges to take account of Strasbourg judgments – the result of a Conservative amendment during the drafting of the act that precludes Strasbourg precedents from binding British courts. </p>
<p>Although these reforms were ostensibly driven by the dispute about allowing <a href="http://ukconstitutionallaw.org/2012/06/03/colm-ocinneide-prisoners-votes-again-and-the-constitutional-illegitimacy-of-the-echr/">prisoners to vote</a>, their practical effect would be to deprive individuals with serious claims against the UK of a remedy from a domestic court and to dilute international oversight of British compliance with the convention.</p>
<h2>Time to act</h2>
<p>Whatever the avowed purpose of the reforms, their practical effect would be to threaten to subordinate judges, British and European alike, to the whims of ministers and parliamentarians on individual cases. The rule of law – that time-honoured tradition, stretching back to the <a href="http://www.legislation.gov.uk/aep/WillandMarSess2/1/2/introduction">Bill of Rights 1688</a> and beyond, of independent and professional judges rather than unqualified ministers and parliamentarians applying the law to individual cases – would be grievously harmed.</p>
<p>Those parliamentarians with legal knowledge appear to have recognised these proposals for what they are – an affront to the great British, and Conservative, ideal of the rule of law.</p>
<p>The decision to consult the public is a tactical postponement of legislation. The government and the Conservative Party remain committed in principle to the proposals. As a lawyer – indeed, as a Conservative – I call upon the British public to use this consultation as an opportunity to register robust opposition to any change in the status quo. I also call upon Conservative Party members to pressure the leadership to abandon this policy and thus uphold the great Conservative tradition of robust commitment to the rule of law.</p><img src="https://counter.theconversation.com/content/42433/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Arman Sarvarian is a non-practising member of the Bar of England and Wales and a member of the Conservative Party.</span></em></p>Cameron backs down on plans to cut ties with Europe to avoid a backbench revolt – but this isn’t over.Arman Sarvarian, Lecturer in Law, University of SurreyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/423682015-05-26T14:32:14Z2015-05-26T14:32:14ZScrapping the Human Rights Act would be an anti-Magna Carta moment for Britain<figure><img src="https://images.theconversation.com/files/82931/original/image-20150526-24757-l6zdtz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Proud justice. But for how long?</span> <span class="attribution"><span class="source">Ben Sutherland</span>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>Britain should be proud of its human rights history – from the Magna Carta in 1215, through the Bill of Rights in 1689, to taking a lead in drafting the European Convention on Human Rights, Britain has demonstrated a belief in human rights and a strong commitment to strengthening their reality.</p>
<p>But the proposal to scrap the <a href="http://www.equalityhumanrights.com/your-rights/human-rights/what-are-human-rights/human-rights-act">Human Rights Act (1998)</a>, which features in the Queen’s Speech, risks destroying this proud legacy in favour of political expediency. Antipathy towards Europe threatens to undermine our centuries-old commitment to human rights and our international reputation and standing. </p>
<p>Human rights are not always popular – they do not pick and choose their beneficiaries. Everyone: the soldier, the refugee, the hospital patient and the newspaper editor alike, is endowed with human rights simply because we are human. Human rights really are universal.</p>
<p><a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/263526/rights.pdf">Bringing Rights Home</a> through the Human Rights Act was a logical and powerful step. There was time lag of almost two years before the act came into force to give our public services and our courts the time they needed to make sure that human rights were properly understood and embedded in all that they do. </p>
<p>Every individual in the United Kingdom should be able to enforce their human rights through the country’s own laws and in its own courts so that remedies are swift and effective.</p>
<h2>Building a fairer society</h2>
<p>It is through the act that the vulnerable, the dispossessed and the bereaved can hold the authorities and public services to account. The Human Rights Act is about achieving a fairer society and mutual respect for ordinary people.</p>
<p>None of us can anticipate when we might need our human rights. If the police ignore our cries for help, if children are neglected by social services or wrongfully separated from their parents, where young people are left to fend for themselves and allowed to be targeted by paedophile gangs, we can call our public services to account through the law.</p>
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<img alt="" src="https://images.theconversation.com/files/82950/original/image-20150526-24760-1lp3oyo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/82950/original/image-20150526-24760-1lp3oyo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/82950/original/image-20150526-24760-1lp3oyo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/82950/original/image-20150526-24760-1lp3oyo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/82950/original/image-20150526-24760-1lp3oyo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/82950/original/image-20150526-24760-1lp3oyo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/82950/original/image-20150526-24760-1lp3oyo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Where it all began: Magna Carta.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/etee/12603635674/in/photolist-kcJVMm-9w6Hkq-9w3Tdg-anGABX-pUv6tn-oD9PbD-7HeuMS-7HeuHu-p9ziJt-p9ziJi-8GKhzi-8pGLrH-9w3zUx-5neeWy-dnYUxM-7SuEsM-8pKXsS-8pBDyy-hotPv-9L8NhN-G4zrH-4n17Kg-4n16VR-4n54vU-4n58KW-4n14MB-qMmVQx-bYjWYY-54rC78-8q4mz4-bYjTAU-ffnnRb-r4PxFt-r4PxpB-r4JEQf-q82uzx-8pGSwX-5SeZxN-r76t9L-8pGLwa-seekvn-qMfVVq-q82ukK-qMfVCm-rwhqXe-4uumsR-aShchB-9w3zUt-3xX3aS-8pKRKy">etee</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
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<p>If we are a member of a minority group we can challenge discriminatory treatment; one of the <a href="http://www.independent.co.uk/news/uk/crime/landmark-as-gay-couples-win-equal-rights-on-tenancy-126516.html">earliest landmark judgments</a> recognised equality for gay couples when one partner has died and is threatened with eviction from the home they built together. This was not about special treatment, it was about eliminating discrimination. </p>
<p>A bereaved parent whose adult child commits suicide while on ill-advised home leave from hospital can challenge the wisdom of medical decision-making – all through the Human Rights Act. As <a href="http://www.bailii.org/uk/cases/UKHL/2007/53.html">Baroness Hale said</a>, it may be in practice that the people who have had most need of it are “out of the ordinary”, but the point is that it is there for all of us as we go about our everyday lives.</p>
<h2>Justice should begin at home</h2>
<p>With its strongly libertarian tradition, we can be confident that English common law will protect our right to be free from wrongful interference by the state. It is the 250th anniversary of the great case of <a href="http://www.unistudyguides.com/wiki/Entick_v_Carrington">Entick v Carrington</a> which held that the search of premises could not be justified by state necessity, in other words the state cannot carry out a lawful search if there is no authority to issue a warrant. </p>
<p>But the common law can be muted when we want to assert rights that reflect positive obligations on the part of the state. In an age of austerity, when our public services are under pressure, it is particularly important that we can protect our rights at home rather than having to seek redress in Strasbourg. </p>
<p>The Sunday Times needed to go to the European Court of Human Rights to uphold freedom of the press in its efforts to <a href="http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57584#%7B%22itemid%22:%5B%22001-57584%22%5D%7D">fight for the rights of the victims of Thalidomide</a>, a process that took several years. The Strasbourg institutions will still be available to anyone in the UK whose rights are violated, but would it not be better that its role were limited to overseeing the implementation of the convention rights by our own courts?</p>
<p>There will be times when the European Court of Human Rights instigates change. But nobody now questions that it is right that gay men and women can openly serve in the British military following the 2002 decision in <a href="http://archive.equal-jus.bispecialist.net/146/1/ECHR%2C_Smith_and_Grady_v._United_Kingdom%2C_no._33985%3A96_and_33986%3A96_%5B1999%5D.pdf">Smith & Grady v the United Kingdom</a>, or that all separated fathers, married or unmarried, are treated alike.</p>
<p>We need access to remedies for breaches of human rights in our own courts – the Human Rights Act made this a reality. Without the act, many people would not have been able to shine a light as swiftly or as readily in the darker corners of our public services. Whatever the shape of human rights in the future, an effective domestic remedy must be at the heart of the United Kingdom’s obligation to ensure rights for all.</p><img src="https://counter.theconversation.com/content/42368/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Citizens need to be able to seek remedies for breaches of human rights in our own courts.Jane Wright, Professor of Law, University of EssexGeoff Gilbert, Professor of Law, University of EssexLicensed as Creative Commons – attribution, no derivatives.