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Credit: Joe Cook

Source: Varsity News

 

As your standard Cambridge student (and, admittedly, a member of my College’s boat club), the annual Oxford v Cambridge Boat Race captivates my attention in a way that lectures normally don’t. This year, however, there was another reason to take heed of the momentous event.

 

Over 40 members of the Oxford Climate Justice Campaign and Cambridge Zero Carbon Society and Oxford Climate Justice planned to drop a 20m-long banner over Hammersmith Bridge, with the words “Oxbridge Come Clean”, as the men’s boats passed underneath the bridge. This was a repeat of similar action that had been staged at last year’s Boat Race, in which students dropped a smaller banner reading “Oxbridge Divest”. According to a statementreleased by Cambridge Zero Carbon Society, the intention was not to disrupt the races or cause damage to the bridge, but “purely intended to use a public platform to scrutinise the destructive actions of these institutions”.

 

Several students were stopped and searched by police under Section 1 of the Police and Criminal Evidence Act, for suspicion of causing criminal damage.[1]One justification provided were the zip ties being carried by some of the activists (to secure the banner to the Bridge).[2]Before they could drop the banner, officers of the Metropolitan Police Service (MPS) surrounded students on Hammersmith Bridge and confiscated their banner (though the MPS has been accused of lying that “no items were seized by police”[3]).

 

This post will briefly discuss the Articles 10 (freedom of expression) and 11 (freedom of assembly) issues under the European Convention of Human Rights (ECHR) that this incident has raised.

 

The legal background – Strasbourg jurisprudence

 

Article 10 ECHR protects freedom of expression. Article 11 ECHR contains the right to peacefully assemble, and to freely associate with others. The right to protest, while not explicitly protected in the ECHR, is covered by Arts 10 and 11 ECHR. It is a core form of political expression essential in a democratic society. Both these rights are qualified rights under the Convention; that is, they are subject to restrictionsas prescribed by law, in pursuit of a legitimate aim and necessary in a democratic society. What this means is that there must be a domestic legal basis for the interference with the Convention right, there must be a recognised “legitimate aim” as specified in Arts 10(2) and 11(2),[4]and the interference must be deemed proportionate in balancing the rights of the individual and wider societal interests.

 

The Human Rights Act (HRA) 1998 incorporates ECHR rights into UK domestic law, and mandates all public authorities – including the police – to act in a way that is compatible with Convention rights (s.6 HRA 1998).

 

Article 10 protects a wide range of forms of expression, including physical and visual. In Faber v Hungary (2008), the display of a flag associated with a political movement was recognized to fall within the ambit of expression under Art 10. Art 10 protects speech that could be regarded as offensive, shocking or disturbing to the State—such are the demands of pluralism in a democratic society (Handyside v UK). When applying the proportionality exercise to decide if the interference with the Convention right is necessary in a democratic society, political expression is typically given robust protection, with the ECtHR subjecting the restriction to an intense review with almost no margin of appreciation.[5]

 

Article 11 protects peacefulassemblies only (CS v Germany). This can include processions, sit-ins and occupations. The state is both under a negative obligation to refrain from interfering with individuals’ Art 11 rights, and a limited positive obligation to facilitate the right to assemble—this includes a duty to facilitate a protest taking place and ensuring that third parties do not deprive protestors of their rights. Saska v Hungary held that the right to assemble peacefully includes the right to choose the time, place and modalities of the assembly, insofar as it is possible within the constraints of Art 11(2). This means that allowing an assembly to take place in a location that is not within sight and sound of its target audience and where its impact will be muted is incompatible with the requirements of Art 11 (Lashmankin v Russia). This is pertinent to the events at the Boat Racebecause MPS officers in video footage of their interaction with student activists said that they might have allowed the students to unfurl their banner somewhere else, but not on the Hammersmith Bridge itself.[6]

 

Article 10 and 11 in conjunction

 

It is noted that the European Court of Human Rights (ECtHR) often discusses Arts 10 and 11 in conjunction with one another. For example, in Ezelin v France(1991), the ECtHR stated:

 

Notwithstanding its autonomous role and particular sphere of application, Article 11 must also be considered in the light of Article 10. The protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association as enshrined in Article 11.

 

In Kakabadze v Georgia, the Court further clarified that Art 11 is to be regarded as lex specialisand Art 10 principles can be taken into consideration when applying Art 11. David Mead suggests that there is no substantive difference in the analyses used under Art 10 and 11. It is usually sufficient to submit an Art 11 claim for traditional protests by groups, but Art 10 may be called upon for more obstructive and disruptive direct action.

 

 

Domestic law

 

The Public Order Act 1986 does not provide for prohibiting assemblies. Section 14A, inserted by the Criminal Justice and Public Order Act 1994, provides only for prohibition of trespassory assemblies – that is, assemblies of 20 or more persons on land in the open air to which the public has no or only a limited right of access held without the permission of the occupier.[7]

 

DPP v Jones (1986), a decision in the House of Lords taken before the HRA 1998 was passed, concerned a peaceful, non-obstructive demonstration of 21 people on part of the highway near the Stonehenge. The House of Lords held that any reasonable activity which did not involve a public or private nuisance and did not obstruct the highway should not be regarded as trespass. A right of peaceful assembly on the public highway could therefore exist subject to those restrictions.

 

Under s.11 of the Public Order Act, a senior police officerwho reasonably believes thata public assembly may result in serious public disorder, serious damage to property, or serious disruption to the life of the communitymay impose conditions as to the place at which the assembly may be held. This Act was not invoked by the MPS in preventing the banner-drop, but it is a plausible legal basis that the authorities may have sought to rely upon had the activists invoked their Article 11 rights.

 

 

Conclusion

 

The manner in which the Oxbridge student activists were dispersed and prevented from dropping their banner was indeed unsatisfactory and raises serious questions of respect for Convention rights. The legal basis for the MPS’ preventive measures against a peaceful assembly “meticulously planned so as not to disturb the boat race itself”[8]is uncertain at best. It also underscores the ongoing pertinence of Human Rights Law analysis in understanding citizens’ rights vis a vis the State. Controversy aside, it emphasises the importance of legal reasoning in giving force to our identification of what is wrong in our day to day encounters with public authorities.

 

 

I am grateful to Alice Gilderdale for her comments.

 

By Jing Min Tan

[1]“Boat Race: Police accused of ‘aggression and intimidation’,” Oxford Mail,

https://www.oxfordmail.co.uk/news/17559270.boat-race-police-accused-of-aggression-and-intimidation/?fbclid=IwAR3BdwJKNoX-bsGirt1f_1qnQ_sQOuWjibm_jzPtN_uSQrehJXFuYo1oKl8

[2]“Police prevent climate activist banner-drop at Boat Race,” Varsity,https://www.varsity.co.uk/news/17385?fbclid=IwAR3MIXKnXwlpJIypSCdUK4vk3q8WbefIuHvouqmxlOOnbMLeJ2vX9jlfVJw

[3]“Police accused of “lies” after videos contradict their statement over Boat Race protest,” Varsity,https://www.varsity.co.uk/news/17390

[4]Namely: national security or public safety, the prevention of disorder or crime, the protection of health or morals or the protection of the rights and freedoms of others.

[5]The Margin of Appreciation doctrine in Strasbourg jurisprudence affords deference to States parties to the ECHR to decide the precise content of a right, based on the socio-political realities of the country.

[6]“Inside Zero Carbon,” https://www.facebook.com/varsityuk/videos/vl.1632601757047097/273825976840142/?type=1 

[7]https://www.legislation.gov.uk/ukpga/1994/33/section/70

[8]Press release from Cambridge Zero Carbon Society and Oxford Climate Justice Campaign

Introduction

To me, the main way that society has changed in terms of the past thousand years of human development is transportation. We have gone from living in small communes, unlikely to ever leave, to being able to reach the other side of the world in under 24 hours. People now can choose to live their lives miles away from their place of birth and indeed frequently do. What is the position however if the individual gets into trouble with the ‘host state’ and tries to send them back to the ‘native’ state? The scope of the current article will not be discussing the merits of migration however, nor the merits of such regulation of migration. This discussion will focus on the formulation of ECtHR and domestic courts. It will be submitted that such a formulation is deeply flawed and an alternative will be proposed that should come from Strasbourg.

 

What does the Current Law Allow for?

The current domestic law regime can be found in the Immigration Rules and secondary legislation endorsed by Parliament, and thus are given a lot of weight by national judges, as evidenced by Ali v Secretary of State for the Home Department. Furthermore, in the same case it was ruled that the wide margin of appreciation afforded to States in such issues does permit that the legislation is not at odds with Convention Rights.

The Immigration Rules set out balancing factors to be given weight in considering whether or not to deport. Without going into full details, the decision of the Secretary of State is very difficult to challenge unless there are exceptional circumstancesparticularly if that individual has committed a criminal offence and been convicted for more than 4 years, withlittle weightbeing given to family life.

Currently, the factors taken into account on a Strasbourg balancing are found mainly in the Boultif v Switzerland[1]which account for:

  • Seriousness of the Offence
  • Family situation: Length of marriage and whether it was realand before the offence, children and age of children
  • How long the claimant resided in the country
  • Time elapsed since offence and conduct of C during that time
  • Nationalities involved
  • Difficult of spouse and family to visit and live with the claimant if returned to home country
  • Ability to live legally elsewhere

 

As well Uner v The Netherlands[2]which provides the solidity of social, cultural and family tieswith the host country and with the country of destinationmust be taken into account as well.

 

What are the issues with the Current Law?

The scope of the current debate will squarely focus criticism on the last point. As Murphy[3]highlights, the application of the “social, cultural… ties”have been highly controversial. What it essentially has resulted in is national courts applying the integration issue very restrictively given the wide Margin of Appreciation. What it has essentially meant is that immigrants, particularly second-generation, have to as far as possible distance themselves from their national home state to satisfy integration factor under this test. The courts have taken factors such as speaking national language (Uner v The Netherlands[4]) and any kind of education or family in the former state (Baghli v France) and, as Farahat[5]has pointed out, religious aspects as well.

Murphy[6], sensibly, criticises these aspects; it essentially means that migrants must uproot themselves (Baghli v France) from the society of old and into the new one. This severely suppresses migrant ability to practice their own religion, culture and language due to fears about not being qualified as sufficiently integrated. It is completely plausible that a migrant can still want to practice such old culture and religion, educating their children of it as well, while being a fully integrated member of the host state’s society. Indeed, Article 27 of the International Covenant of Civil and Political Rights provides that

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

When read in conjunction with Article 53 of the ECHR itself, supposedly will not prejudice any other international convention, it can be said the protection being provided by the ECtHR does not do justice to this international Covenant.

 

What should the position be?

So what should the position be? In light of the scenario we have whereby non-nationals are, in essence, being forced to give up one nationality in pursuit of another. Any little detail seems to count against them when it comes to the incorporation test. I do not doubt propriety of government ambitions when it comes to wanting integration of non-nationals into a ‘British’ way of life, such as it brings harmony into the community and gives individuals greater autonomy, but the application of the test is beyond unreasonable. Non-nationals have a right under International Law to practice their own culture and heritage, his surroundings in the family home and ethnic blood all make up the individual and properly respect personal dignity, they need to be allowed to freely have ties with their native country without risk of deportation because of this. Furthermore, while Article 8 is now used in a wide range of situations due to the living instrument of the ECHR, the original purpose should not be lost: to prevent the state from creating a homogenised nation with singular cultural and ideological factors.

It is submitted that the current balancing act between integration with host state and native state should not be totally abandoned, it does serve a useful purpose, but rather altered. The Court should ask from the current range of factors, guided by the ECHR, as to the persons integration with the host state. Looking at all the circumstances on balance a ‘Threshold of Integration’ should be reached. Such a balance should be set to a high standard, the effect of the declaration being that removal to anyState would constitute an unreasonable interference with the Claimant’s Article 8 Right. If the threshold is not met, a comparatively lower ‘Threshold of Associations’ for the State of proposed refoulement. Such again should be along similar lines as discussed above coming from ECtHR jurisprudence. If this standard is not met, it would constitute an unreasonable interference with the claimants Article 8 right to refoul him to the State proposed. Government has an opportunity to find another State which supposedly the Claimant may have more associations, but this will be unlikely in most cases.

Such an approach has three main advantages over the current system. Primarily, this will be in allowing non-nationals to properly exercise their right to continue their culture, religion and maintain family ties in their native state without fear of arbitrary results from government body. This is particularly important for ‘second generation’ migrants, who have not known anything other than UK with regards to a home environment. Secondly, it is submitted it better appreciates a lay reading of Article 8. If Article 8 can be read to protect one against refoulement, surely it should be able to be interpreted in order to allow the individual to flourish in two cultural backgrounds without risk of prejudice because of the desire, and indeed right, to exercise both. Thirdly, this will help to improve legal certainty. While in any proportionality analysis the distinction will be difficult to draw, a ‘two-stage’ approach will allow individuals and government to be better directed in what the law actually is.

One might question how viable this answer is in the current political climate with rising concerns about Immigration and States wanting greater respect for sovereignty in such areas. Bates[7]has commented that in since 2010 the Courts have entered an ‘Age of Subsidiarity’ with greater respect being given to those states, and the democratic legislatures, who respect Convention Rights. Indeed he furthers that this is the only sensible direction that Strasbourg can go; it must recognise the limits of the Convention and use political means to force compliance. With respect to Dr Bates’ view, the Court should not, as it were, ‘roll over and accept its fate.’ The purpose of any notion of International Human Rights Law is to protect against the tyranny of the majority.Strasbourg must be more willing to intervene in such blatant violations of minority rights as can be seen systematically occurring across cases Europe. To this view, even if there is tension, it is a position the Courts must adopt in the wider concept of International Human Rights Law.

 

Conclusion

Irrespective of one’s opinions about immigration, it is easy to see the fundamental flaws in the current system. The State is entitled to ask for integration into the respondent State, but this is not reason to seemingly align total integration into the host state. Such a position, as Thym[8]points out, is to assimilate the position of a national and a non-national. The only difference being that the non-national will still be at risk of refoulement.

The submitted proposals for reform will be beneficial to increase certainty and allow migrants full integration of their Article 8 and other International Rights. In the current socio-political climate with risk of terror threats and far-right uprisings, it is doubtful that the ECtHR will take a firm position on this, so it is incumbent on the Home Secretary to reform the rules in such a manner in which he can properly persue his aims without unreasonable violations.

By Alex Evans

[1]App. 54273/00) (2001) 33 EHRR 1179

[2]App. No. 46410/99) (2007) 45 EHRR 14

[3]C. Murphy ‘The Concept of Integration in the Jurisprudence of the European Court of Human Rights’(2010) European Journal of Migration and Law 23-43

[4]Ibid 2

[5]A. Farahat ‘The Exclusiveness of Inclusion: on the Boundaries of Human Rights in Protecting Transnational and Second Generation Migrants’(2009) European Journal of Migration and Law253-269

[6]Ibid 3

[7]Speaking at a lecture at the Nottingham Human Rights Law Centre Student Conference on the ECHR: 60 Years of Success?

[8]D Thym ‘Residence as De Facto Citizenship? Protection of Long-term Residence under Article 8 ECHR’ in Rubio-Marin (ed.) Human Rights and Immigration (OUP, 2014)

By Jing Min Tan

The “Q&A with…” series aims to tell the stories of practitioners in human rights and justice-related advocacy, so that Law students get an idea of what a professional life in this field could look like, and steps to take to get there.

There’s no better person to start this series off with than Helen Jennings. Helen is a Law undergraduate finalist at Pembroke College, and she was the Lead Convenor of the conference “The Development of Abortion Rights in a Changing Europe”, held in the Law Faculty in September 2018 and supported by the Cambridge University Centre for Law, Medicine and Life Sciences, and the Cambridge Centre for Public Law. Outside of Cambridge, she is the UK ambassador and Global Advisor for Girls20, a global initiative to empower young female leaders. Most recently, she appeared as a panelist for our event on abortion rights in Northern Ireland.

Q: How did you get passionate about human rights advocacy and what gave you the idea of organizing a conference on abortion rights?

A: I started being interested in human rights advocacy when I became a peer advocate with the Children’s Rights Law Centre in Belfast when I was 13. We undertook a review and compiled a report to the United Nations Committee on Rights of the Child, which focused on whether young people felt that their rights were respected and protected by local government. It was so expansive—covering areas like counseling in schools, political participation, mental health and more; and it brought home the idea that human rights affects real lives. It was then that I decided I wanted to make human rights my life’s work.

As for the conference – I think that coming to Cambridge as a non-English student is quite an alienating experience. I realized how Anglo-centric attitudes were in Cambridge, and in particular the Law Faculty. While that isn’t a bad thing, there were these huge shifts happening with regard to legal provision for reproductive rights in Northern Ireland, campaigning that I was involved in in my personal life, but that simply wasn’t being reflected in my degree.

It occurred to me that I could use the resources available to me in Cambridge to open up academia as an avenue for activism. The Law Faculty was really supportive when I decided to organize a conference, and I saw it as a civic duty to my home country—as well as a contribution to academia here in the UK. There was so much that was happening at home that I couldn’t get involved in, and I used the platform I had here to bring those voices into Cambridge. We put out a call for submissions, and academics and practitioners responded from all disciplines. The Conference saw the presentation of ten papers which the academics could all go on to publish, and there were really great, balanced debates that developed from the Conference.

Q: Tell us how you got involved with advocacy for reproductive rights.

A: So in 2016, there was a huge strike that occurred all over the world, called #StrikeForChoice, in support of the campaign to change abortion law in Ireland. I just had an epiphany that I needed to get involved. I wrote an article on my involvement in the strike in Varsity [which you can read here]. Funnily enough, I coincidentally found out that my brother was involved in the London-Irish Abortion Rights Campaign – I had no idea before then! He shared the article with the group, and that’s how I got involved with them.

Q: While it seems like opportunities in commercial law are available everywhere we look, a career in human rights law seems a lot more inaccessible. How do you go about exploring a future in that field?

A: My suggestion would be to find an issue that’s personal to you, and use that as your starting point. My human rights journey started long before Cambridge. I was active in advocating for reproductive rights in my first year. I didn’t engage with that issue when I lived back home because it was too controversial, and it was too scary to talk about it. And then I started studying Law at Cambridge, where I got the knowledge and language to be able to think critically about what was happening back home. Human rights starts from home. Find an issue that is specific to your home space, an issue that affects that your people. Then, you can move on to global issues—find an issue that hurts you in some way; that strikes a chord within you.

For instance, if I were a student in England, I’d be thinking about the impact of Brexit and its human rights implications—the accessibility of rights protection for refugees, for example. Everyone can find a space for their voice within human rights activism.

On 12thof February, we had the pleasure of hosting an excellent panel of speakers who engaged in a lively discussion on the agenda to repeal anti-abortion laws in Northern Ireland. In conversation were Dr David Russell (Chief Executive of the Northern Ireland Human Rights Commission), Dr Shona WilsonStark (Cambridge academic with substantial research in the area of abortion rights in Northern Ireland), Mr Darragh Mackin (solicitor on the Sarah Ewart case) and Helen Jennings (Cambridge Law finalist and Lead Convenor of a conference on “The Development of Abortion Rights in a Changing Europe”). Their dialogue gave a sobering account of the current state of law in Northern Ireland, and an insight into the tenacious efforts of those who fight to change it.

 

Dr Wilson Stark opened the dialogue by giving a broad overview of the current law. The legislative regime in Northern Ireland on abortion concerns two Acts: Section 58 and 59 of the Offences Against the Person Act 1861, which criminalises the administration of drugs or use of instruments to procure abortion; and Section 25(1) of the Criminal Justice Act (Northern Ireland) 1945. The latter is an Act of the Northern Ireland legislature. Presently, the law prohibits abortion in cases of (a) serious malformation of the foetus, (b) pregnancy as a result of rape, and/or (c) pregnancy as a result of incest. In England and Wales, the Abortion Act 1967 creates a statutory defence to the 1861 Act, but it is not in force in Northern Ireland.

 

The Northern Ireland Human Rights Commission challenged the compatibility of Northern Ireland legislation with Articles3, 8 and 14of the European Convention of Human Rights before the Supreme Court just last year. The case was brought on behalf of multiple victims who had no choice but to travel to England to get an abortion, after being unable to obtain health advice and assistance in Northern Ireland. Dr Russell said that the Supreme Courtcame within “a hair’s breadth” of issuing a declaration of incompatibility,butthe application ultimately failed because the NIHRC supposedly lacked standing to bring those proceedings. He was of the opinion that the problem could in principle be solved at Westminster: Sections 58 and 59 of the 1861 Act could be repealed, while the Secretary of State could intervene to order that the 1945 Act be repealed or amended to comply with the ECHR (s 26 Northern Ireland Act 1998). Dr Russell emphasized that NIHRC does not seek to extend the 1967 Abortion Act, currently in force in England and Wales, to Northern Ireland. Rather, as Dr Russell stated, its objective is limited to decriminalising abortion on the three grounds specified in its application to the Supreme Court, and as recognized by the European Court of Human Rights. It will stay faithful to Strasbourg jurisprudence, and its stance will closely follow the lines drawn there.

 

Amongst the victims was Sarah Ewart, a mother who sought to terminate her pregnancy after receiving the devastating news that her baby would not survive outside the womb. After the Supreme Court refused the NIHRC’s application, Mrs Ewart has become a champion of abortion rights in Northern Ireland by bringing a case in her own name. Mr Mackin, Mrs Ewart’s solicitor, shared about the verbal abuse and media harassment she has been subjected to since making her views public in the NIHRC’s original application, and her vow to fight for women’s rights to abortion so that no one else has to go through what she suffered. Their objective is simple: to obtain the declaration of incompatibility that the Supreme Court refused to issue.They hope that their case will neuter the problem of standing, which caused the NIHRC’s application to fail in the Supreme Court.Fresh proceedings in her own name commenced the same day as the Supreme Court ruling; at the time of writing Mrs Ewart’s hearing has come to a close and awaits judgment. At hearing, the Attorney-General of Northern Ireland sought to argue that Mrs Ewart had no standing for two reasons: (1) she was not pregnant at the time, and (2) she had already given birth to a second child. The relevance of both arguments seems doubtful.

 

Helen Jennings, a Law student here at Cambridge and UK Ambassador for Girls20, emphasized that Northern Ireland’s failure to provide access to termination services is a fundamental failure to comply with its obligations as a state. Campaigns such as In Her Shoesrecount the stories of real women in Northern Ireland who wish to terminate their pregnancies for a multiplicity of reasons. State criminalisation means that these reasons are neither acknowledged nor respected, even though it may cause them great physical and emotional anguish.

 

In the NIHRC judicial review case last year, the Supreme Court called the state of the law in Northern Ireland “deeply untenable and intrinsicallydisproportionate”,and “clearly needs radical reconsideration”,yet refused to issue a declaration of incompatibility. Perhaps the High Court in Belfast will act differently.

 

Jing Min Tan

 

CUHRLS is grateful to Dr Shona Wilson Stark for her comments before the publication of this post.

The Counter-Terrorism and Border Security Bill

Jetting off somewhere exotic?

Where are you going for your next holiday? Hopefully not Syria or Iraq. Not only is it rather dangerous, it now seems likely that it will be illegal to go there without a reasonable excuse. Clause 4 of the Counter-Terrorism and Border Security Bill will make it a criminal offence for a UK national or resident to enter or remain in a ‘designated area’. The Secretary of State decides what this constitutes; the designation must be considered necessary to prevent people from visiting an area because of a risk of terrorism. This offence will carry a maximum punishment of 10 years and a fine. This means that if you happen, without reasonable excuse, to be passing through or taking in the sights of such an area, you are liable to be imprisoned for 10 years.

 

Most concerning is that far from being a distant possibility, this Bill has just passed the Final Reading stage and is awaiting Royal Assent.

 

The Bill was introduced to combat the recent phenomenon of UK nationals who go to places such as Syria and become involved with ISIS, such as James Matthews (who faced terror charges in the UK). The Home Office have said that more than 900 people of security concern have travelled to Syria from the UK to engage in the conflict[1]. This clause, the government argues, allows the security services to respond quickly and dynamically to such events and more easily prosecute persons who engage in terrorist activity abroad.

 

Yet, beyond this thin veil of justification, it is clear that this offence is intended to circumvent the need for sufficient evidence. The government has long found it hard to prosecute people who go abroad and allegedly engage in terrorist activities. The problem here is that the government has inadequate evidence. The solution cannot be to invent a new offence where the only evidence required is the only thing that the government actually knows: that a person went there in the first place.

 

Thankfully, the Bill has been amended heavily. A prescribed statutory list of legitimate purposes has been added, if you are working as a journalist, for the UN or on a humanitarian venture, you are excluded from prosecution. Neither will you be prosecuted if you are caring for a sick relative or attending a relative’s funeral. Another amendment was a sunset clause providing that any designated area shall expire after 3 years (following the Australian model). Yet a period as long as three years is surely too long to prevent someone from going somewhere, especially when they may only want to visit a close friend. Moreover, this legitimate purpose must explain the entirety of your visit to a designated area, leaving the prospect of a jovial wander quite precarious, as you may find yourself walking into a 10-year prison sentence. The prospect of having to explain every minute of your family holiday to a court is oppressive.

 

The fact that this offence has been so heavily qualified surely speaks of the danger it poses. Beyond Parliamentary approval, there are no limits or accountability whatsoever on what may be deemed a designated area. Neither is any guidance provided on what is considered to be a reasonable excuse, making this defence seemingly hard to raise. Nor does this bill envisage a pre-authorisation or appeals process, which might allow a person to safely plan a holiday.

 

Acting under the guise of national security, this offence will significantly inhibit the right of freedom of movement under Article 12 of the International Covenant on Civil and Political Rights. Nor is freedom of movement the only right this could infringe upon:

 

  • Article 8 of the European Convention on Human Right (ECHR) (the right to private and family life) as a person would not be able to visit their family, except in the case of serious illness or death
  • Article 9 (of the ECHR (the right to manifest one’s religion or belief) where exercising this would involve entry into such a zone, this would also infringe upon one’s freedom of expression (Article 10 of the ECHR).
  • Article 14 of the ECHR (rights against discrimination) where, with the above rights, certain nationals of a country would be disproportionately affected.

 

The Joint Committee on Human Rights, who noted such concerns, suggested removing this clause altogether. This suggestion was not adopted.

 

Furthermore, Liberty UK heavily opposed such a clause, arguing the clause would have the effect of criminalising travel. The reasons for travelling are complex and if they do not fall into such prescribed categories, this does not mean the reasons are malevolent and the individuals are terrorists. Additionally, for those residing in a designated area, they only have 1 month to leave: 1 month to pack up, sell their house, and raise enough funds to move and buy another house. Indeed, being able to do even that is, of course, premised on the proviso that the person concerned even knows about such a designation.

 

Indeed, Lord Anderson, a previous Independent Reviewer of Terrorist Legislation, called such a power, “unprecedented” during Parliamentary debate. Indeed, the cloud of Brexit will inevitably hide this intrusion, thus it will pass with little external evaluation. It is noted that this is an unfortunate time to have no Independent Reviewer of Terrorism Legislation (Max Hill QC having been appointed as Director of Public Prosecutions). With travel to some areas ready to be criminalised, one wonders what further intrusions will be made in our increasingly monitored lives. This power is draconian and disproportionate, and leaves innocent UK citizens, quite literally, on the border of terrorist convictions.

 

Jake Carrick

 

[1]Home Office 2019 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/740951/4_Designated_Area_Offence.pdf

When representatives of the Yemeni government and the Houthi rebels agreed to a UN-brokered ceasefire for the port city of Hodeidah on 13 December, UN Secretary-General Antonio Guterres lauded the efforts as ‘real progress towards future talks to end the conflict.’[1]

The residents of the embattled city on the Red Sea, however, like the majority of 28 million Yemenis, are unlikely to share Guterres’ optimism. Since the outbreak of the civil war in early 2015, tens of thousands of civilians are estimated to have died as a direct result of fighting, while 17 million Yemenis – more than half of the population – are on the brink of starvation.

Yemen is the poorest country in the Middle East. Sharing a 1,100-mile land border with Saudi Arabia, the country has often been at the centre stage of regional power politics. From 1962 to 1970, at the height of the Cold War, Gamal Abdel Nasser’s Egypt and the Saudi monarchy supported opposing sides in a bloody civil war over control of the northwestern part of the country, then the independent Yemen Arab Republic.

With the Houthi takeover of the capital Sana’a in March 2015, Yemen has once again returned to the forefront of a proxy war between regional powers. This time, the conflict is not fought in the name of a fictitious confrontation of ideologies – Saudi Arabia’s absolute monarchy and Nasser’s pan-Arab socialism; rather, the Saudis allege that the Houthi rebels, a Shia-majority militia hailing from Yemen’s tribal north, receive financial and military support from Iran, Riyadh’s Shia-majority arch rival, and its Lebanese proxy, Hezbollah. In order to avoid a perceived extension of Iran’s sphere of influence – the ‘Shiite crescent’ – to its immediate geographic south, Saudi Arabia and its allies from the Gulf Cooperation Council, backed by many Western countries including the United States and the United Kingdom, have launched a devastating campaign of airstrikes to defeat the Houthi insurgency.

Violations of international human rights and humanitarian law are widespread on both sides.[2]The Houthis are accused of using unguided rockets and land mines, resulting in a disproportionate number of civilian casualties, as well as detaining and torturing pro-government supporters, abducting journalists and human rights workers, and targeting places of worship – all clear infringements of widely accepted international norms. What makes the Saudi intervention particularly vicious, however, is its campaign of economic warfare. Not only have coalition airstrikes in Yemen killed thousands of civilians – in August, an attack on a school bus in the Houthi-controlled town of Saada claimed the lives of dozens of children.[3]In addition, according to Alexis de Waal of the World Peace Foundation, the Saudi campaign has destroyed large parts of Yemen’s economic infrastructure.[4]Coupled with a land, sea and aerial blockade of the country, this has led to rampant unemployment and a dramatic increase in prices – in short, economic collapse. Even though food supplies are available in the country, civilians can no longer afford to buy them.

Despite the catastrophic impact of Yemen’s humanitarian crisis on the civilian population, which one UN official said could develop into the worst famine seen worldwide in decades, the Saudi campaign falls into a ‘gray area’ of international law.[5]Article 54 of the 1977 First Additional Protocol to the Geneva Conventions, to which both Yemen and Saudi Arabia are party, prohibits ‘starvation of civilians as a method of warfare’ as well as the destruction of ‘objects indispensable to the survival of the civilian population,’ such as foodstuffs and agricultural areas. Article 54 undisputedly covers the Assad regime’s deliberate starvation of Syrian civilians during the siege of Aleppo, for example. However, it is much more difficult to establish intent in law where famine is only indirectly (though certainly no less deliberately) caused by military intervention. Hence, Saudi authorities will be quick to defend themselves by pointing out that mass starvation was merely the unintended ‘by-product’ of a limited aerial campaign.

Such lukewarm justifications should not be allowed to pass. Deliberate starvation of civilians is used as a weapon of war in Yemen. Res ipsa loquitur. It is time to hold those responsible to account before famine by design becomes the future of war.

Anna-Christina Schmidl

[1]Bel Trew, “Glimmer of Hope for Yemen as Ceasefire Agreed for Embattled City of Hodeidah,” The Independent, December 14, 2018, accessed December 29, 2018, https://www.independent.co.uk/news/world/middle-east/yemen-peace-talks-ceasefire-hodeidah-sweden-antonio-guterres-civil-war-famine-a8681541.html.

[2]“War Crimes Tracker,” The Yemen Peace Project, accessed December 31, 2018, https://www.yemenpeaceproject.org/warcrimes/.

[3]Shuaib Almosawa and Ben Hubbard, “Saudi Coalition Airstrike Hits School Bus in Yemen, Killing Dozens,” The New York Times, August 09, 2018, accessed December 31, 2018, https://www.nytimes.com/2018/08/09/world/middleeast/yemen-airstrike-school-bus-children.html.

[4]Jane Ferguson, “Is Intentional Starvation the Future of War?” The New Yorker, July 11, 2018, accessed December 31, 2018, https://www.newyorker.com/news/news-desk/is-yemen-intentional-starvation-the-future-of-war.

[5]Ibid.

After the International Human Rights Day, it seems an appropriate time to pen a response to a piece titled “Human Rights Do Not Exist!” by the Conservative English journalist Peter Hitchens, published in The YLJ.

Hitchens makes the argument that the concept of human rights in modern Western societies is artificial, and abused by courts to “intervene in an Unchristian way in the politics of formerly Christian societies”. He prefers the “hard protections” conferred by age-old human rights documents like the English Bill of Rights 1689, and disparages the employment of human rights arguments to “provide a nonsensical justification for … abort[ing] millions of babies”; he also disparages the development of human rights jurisprudence as simply following the current liberal zeitgeist.

Hitchens joins a long line of politicians who have been continuously engaged in attacking the human rights regime in the UK – not always cogently. He longs for some idealised Protestant society, where Christian values – particularly the sanctity of life in the context of abortion – are regarded as non-negotiable. While most of his article focuses on the overextension of reproductive freedom to permit abortion in all cases, Hitchens never actually presents a countervailing argument to show why the right to abortion is unjustified. The closest he gets is when he cites the right to life, codified in Article 1 of the European Convention of Human Rights as well as the United States Declaration of Independence. It is submitted that Hitchens’ argument requires more logical rigour than what he has offered us.

The reality is that in all questions of law, courts are always trying to balance rights of various stakeholders – an issue Hitchens says that Human Rights is unable to resolve by itself. However, in our domestic framework, ‘Human Rights’ is not merely a conceptbut an effective legal mechanism under the Human Rights Act 1998, with constitutional safeguards to prevent an abuse of power by the judiciary. The Act, operating within essential limiting tenets of the British constitution that any first-year student of English Law would be well familiar with such as separation of powers and legislative supremacy, ensure that legal protection of human rights are not premised on judicial decisions made based on some vague impression of what the “ethical fashions” of the hour are.

As for Strasbourg jurisprudence, Hitchens raises the case of A, B and C v Ireland(2010) to show how “the courts follow” the assumption that the law must follow liberalism of the times. On closer scrutiny, it is evident that Hitchens is engaged in what Professor Mark Elliot calls “legally illiterate criticism”, since the court did not grant, as Hitchens seems to think, a right to unrestricted abortion. What the case actually decided was that Ireland was in breach of its positive obligations under Article 8 (right to respect for private life) by not providing an effective procedure by which the applicant could verify if she qualified for a lawful abortion. This is not a strained interpretation of the Article 8 right at all – it is only reasonable for private individuals to know what the applicable law is to his/her life, so that he/she can properly plan it. Hitchens also seems to have ignored the cases in which Strasbourg has refused to accept human rights arguments that applicants have made. In the case of A, B and C itself, the Court rejected the argument under Art 8 that was made by the first and second applicants who had abortions for personal reasons since the option to travel abroad for the abortion was still available to them. Already there is a threshold within the existing legal framework that must be met for courts to protect a right that an individual is claiming. That the foetus’ Art 1 right to life trumps all cannot simply be assumed, especially since individuals are also entitled to protection of their Art 3 right on the prohibition of ill-treatment, particularly in the case of victims of rape, incest and fatal foetal abnormality.

Hitchens ends his article with the forecast that the “astonishing precedents for broad, imaginative interpretation” of human rights documents will be to the detriment of liberals, as global political sentiments shift towards populism, xenophobia and conservatism. Again, this argument is something a student of UK Constitutional Law would be able to respond to: legal protections for human rights have developed within the Common Law since the enactment of the Human Rights Act 1998 (which brought the ECHR into force) such that it would be difficult for a draconian government to entirely deprive its citizens of such rights, even if it withdraws the UK from the European Convention of Human Rights. While not nearly as advanced and clearly outlined as Convention rights, there is clear precedent to protect fundamental common law rights, which cannot easily be ignored or deviated from.

Hitchens seems to think that “the concept of Human Rights” is a hazy notion as indefinable as the air. Nothing could be further from the reality of Human Rights law. In a rapidly changing constitutional landscape and contemporary challenges to human rights such as the ever-increasing ambit of executive government, modern-day slavery and human trafficking, immigration and the response to terrorism, human rights protections are more important than ever. Courts must constantly engage in the enterprise of translating age-old rights recognised in documents like the Magna Carta to our increasingly complex, globalised context so that the protections afforded to individuals.

Jing Min Tan

The work of the International Criminal Tribunal for the former Yugoslavia (ICTY) invaluably advanced global justice, but also continues to remind us of the complexities of prosecuting atrocities

Twenty-four years after the ICTY was established by the UN Security Council, the Tribunal concluded its final trial, upholding the sentence of former Bosnian Croat commander Slobodan Praljak to 20 years imprisonment for war crimes. The events which followed will unfortunately be unavoidably engrained into the Tribunal’s history, with the war criminal swallowing a vial of cyanide and killing himself.

 

At the time of writing, authorities are investigating the security lapses which allowed Praljak to evade retribution. Reactions to the incident do however, raise a wider question. Many from Praljak’s Bosnian hometown of Čapljina regard him a ‘hero’ and mourned his death. But how can someone who ‘facilitated the murder of Muslims who did not belong to any armed force’ in a campaign of ethnic cleansing still be held in such high esteem?

 

This difficulty highlights the distance which is often felt between international institutions and ordinary people. The ICTY’s founding resolution was passed in a Security Council chamber in New York, and the Tribunal itself was based in The Hague – two settings very much detached from the suffering and anger felt by those who lived through the horrors of the Yugoslav wars. It also illustrates that work still needs to be done to convey the message of international criminal justice’s moral simplicity.

 

Nevertheless, while we must take care to not to allow cliché and platitudes cloud attempts to appreciate the undoubtedly complex roots of grave conflicts worldwide, we also must not lose sight why human rights deserve the protection provided by institutions like the ICTY. The modern human rights position came about from the world witnessing atrocities, and feeling that these abuses were simply wrong. There is rightly a need to have logical and legal grounds to back this intuition. But at a basic level, nobody should be treated with the cruelty the world has, and continues to see.

 

Jefferi Hamzah Sendut

Although it is all too easy to believe that slavery ended with the success of the abolitionist movement up to 200 years ago, a flurry of news stories in recent weeks has brought the issue of modern day slavery to our attention. Significant coverage stemmed from the high-profile Rooney case, where a UK family was convicted of numerous counts of modern slavery offences. This was swiftly followed by the first review of the UK legislation in a Backbench Business Committee debate secured by Vernon Coaker MP in October 2017. This coincided with the high-profile efforts of Avon and Somerset Police to raise awareness of the issue of modern slavery and their support for the charity Unseen’s ‘Let’s Nail It Campaign’. While one hopes that #antislaveryday will continue to garner support and visibility, the underlying legal framework for dealing with modern slavery both in the UK and Europe must be critically examined to determine how far it goes to protect victims of modern slavery.

The European Level

Article 4 of the European Convention on Human Rights provides that:

  1. No one shall be held in slavery or servitude.
  2. No one shall be required to perform forced or compulsory labour.

The ECtHR’s seminal examination of Article 4 in Rantsev v Cyprus was welcomed by many. The Court took an expansive approach to the Article. It was recognised that human trafficking was also prohibited, though not mentioned in the text of Article 4. What’s more, the Court held that ‘increasingly high standards’ are necessary in the area due to the clandestine and exploitative nature of activities of modern slavers and human traffickers. The Court committed to the ‘3 Ps of Protection, Prevention, and Prosecution’, advocated for in other international instruments, such as the  Palermo Protocol, which promote the long term protection of victims of modern slavery and human trafficking.

What about the UK?

The Modern Slavery Act 2015

The MSA 2015 was a huge leap forward in consolidating the criminal offences associated with modern slavery and establishing prevention mechanisms. The Act also made some steps in terms of protecting victims. However, the focus of the act appears to be on prosecution rather than protection. For example, the offences of modern slavery appear in the first two sections of the act, indicating a legislative desire to take a hard-line approach to the issue of modern slavery in the UK.

Slavery and Immigration

As academics have highlighted, one of the most troubling aspects of the MSA is the inherent tension between protection and immigration. In 2012, the Immigration Rules (now in statutory form) were amended so as to minimise the rights of Overseas Domestic Workers (ODW). These migrants enter the UK with an employer already secured. The ODW must come to the UK with that secured employer, as a condition of their entry. Under the Rules, an ODW is unable to change employers once they are in the UK, placing them in an extremely vulnerable position. This is exacerbated by the cuts to legal aid, precluding most ODWs from challenging decisions made against them. The Government’s response to this vulnerability was that ‘it is not the government’s policy to facilitate low skilled migration to the UK.’

A general lack of protection?

This failure to fulfil the protectionist aspect of the fight against modern slavery is found in other areas. For example, when a potential victim is identified, they undergo a 45-day recovery and reflection period. Jess Phillis MP noted that these victims, who are still extremely vulnerable, are ‘lost from services’ after this 45-day period. Where the victims go after this is unclear.  Research thus far has only determined that ‘nobody knows for certain’.

While the recent upsurge in awareness of the issue of modern slavery in the UK is to be welcomed, the current system needs more than emotional outrage. Further action is needed to combat the negative effects of both immigration policies, and the lack of support and protection for victims once they have been identified.

 

Helen Richardson

Final Year Law Undergraduate

When the ECHR was being formulated, shortly after the second world war, the UK was one of the key drafters of the convention. The White Paper that instigated the (partial) incorporation of the ECHR into UK law, almost 50 years later, was entitled: Bringing Rights Home. The introduction of the Human Rights Act 1998 (HRA) was much needed and has led to legislation being more human rights focused, by virtue of provisions such as section 19 (statement of compatibility). Lord Irvine (one of the key figures behind the introduction of the HRA),  in his 2003 article “The Impact of  the Human Rights Act”, contented that the act ensures that parliament, the government and the judiciary all work together to ensure a culture of human rights is embedded across the whole of our society. A culture of human rights is certainly a laudable goal that we all should strive for. However the notion of “Bringing Rights Home” which was championed by Lord Irvine and his colleagues, when bring the HRA into force, is certainly less laudable. The phrase, arguably, suggests that since the UK played a pivotal role in the creation of the ECHR, that the state of the UK is one of the creators of human rights. This would be an utterly farcical contention as human rights are not something that one can create. They are entitlements that are ascribed to a human simply because of their human status. Laws are malleable: they differ between places and over time. Human rights do not share this characteristic with law, they are universal to human beings in all areas and all times. Perhaps the suggestion that the UK is one of the ‘creators’ of human rights is one of the reasons behind calls for a British Bill of rights, in favour of the ECHR. This would be a major step back in human rights law. Therefore, we can thank Lord Irvine and Co for the HRA, but not for the phrase “Bringing Rights Home”.

Barefoot Lawyer is a remarkable memoir by Chen Guangcheng, a blind civil rights activist from Dongshigu in Northeast China. Having lost his eyesight even before the age of one, Guangcheng battled discrimination against the handicapped, finding himself opportunities for education after being refused from the local village school. Whilst at a school for the blind in Linyi, further experiences of discrimination, such as a bus driver refusing to adhere to a law allowing the blind to use public transportation for free, sparked his dedication to social activism, ultimately leading him to become a self-taught lawyer.

Being a “barefoot lawyer” is illegal on grounds of practicing without a license, but Chen represents all clients who cannot afford legal services, or whose cases could risk angering the government because they involve infringement of human rights – cases that many qualified lawyers stay away from. Attracting the government’s attention through a class action lawsuit against illegal taxing of disabled people in 2002, and then through a lawsuit against a local government’s violent and illegal enforcement of the one child policy in 2005, Chen is thrown in jail on a fictitious charge for four years. Once released, his entire family is placed under house arrest in Dongshigu, with any visitors (including Christian Bale) banned from entering the village.

After breaking a foot coming down a wall, dragging himself through the village in the night, and racing against Chinese officials to the American embassy, Chen manages to leave the country with his family to the US with the help of Hillary Clinton, Secretary of State at the time.

This book is essential reading to gain a better understanding of the current human rights situation or the discrimination towards the poor and disabled in China. From his inability to access education to “black jails” and kidnappings, Chen recounts his experiences in full detail and leaves no stone unturned. Furthermore, the book also sheds light on the role of the US in upholding human rights around the world, as Chen discusses his disillusionment with the country during Clinton’s negotiations with the Chinese government. Rather than pushing for what Chen wanted, they instead kept trying to pressure him to accept the Chinese government’s demands, making Chen worry for his and his family’s safety.

The passion that Chen expresses for his work and beliefs is contagious, and anyone reading this book will find themselves with a strong interest for human rights and the law’s role in upholding it around the world. Providing a real world perspective on the difficulties in maintaining human rights through a legal system where not all legislation is properly enforced, The Barefoot Lawyer is sure to make you question if law alone can achieve adequate human rights protection

On the 7th December the Council of Europe accepted the UK government’s proposal to end the blanket ban on UK prisoners’ right to vote. This proposal is a response to the European Court of Human Rights’ ruling in Hirst v UK (No 2) [2005]. In this case the Court held that the UK’s blanket ban on prisoner votes is against Article 3 of Protocol No. 1 of the ECHR (the “Right to free elections”). This article outlines a couple of key questions that the “prisoner votes saga” raises. Firstly, should we accept the Court’s ruling in Hirst (No 2) and secondly, is the UK’s accepted solution satisfactory?

 

The blanket ban: a human rights breach?

There are strong arguments in favour of the UK following rulings such as Hirst (No 2). Such arguments may highlight the importance of prisoners being able to keep their sense of dignity or the benefits of prisoner votes from a rehabilitation point of view, this right encouraging prisoners to maintain a level of engagement with society. However, is there any room for someone who champions human rights to support a blanket ban? The “right to free elections” is not an absolute right, thus the Court ruled that the blanket ban was a disproportionate restriction on the right to vote. It said that although the ban had a legitimate aim (to prevent crime, by sanctioning the conduct of convicted prisoners, and to enhance civic responsibility and respect for the rule of law) the blanket nature was excessive and not necessary in a democratic society. However it seems, at least to me, plausible to argue that a blanket ban is not in fact excessive because it only applies to those who have been convicted of crimes serious enough to warrant a custodial sentence. This is the argument that was made (unsuccessfully) by the UK government, although it is worth noting that the Hirst (No 2) verdict was not a majority decision. The ECtHR’s verdict in Hirst (No 2) is thus not uncontroversial.

 

The proposed solution

The UK’s solution, aiming to bring the UK in line with its international commitments, would give the vote to prisoners on temporary release and at home under curfew. Given that estimates suggest that this will affect under 100 prisoners[1], some will argue that this proposal does not go far enough and will question whether such a small material difference really changes the situation regarding prisoner votes from disproportionate to proportionate. Nevertheless, the proposal should not be dismissed as insignificant. Firstly, it is important that the UK is seen to abide by ECtHR rulings because if the UK doesn’t comply with the ECtHR it gives other countries an excuse to similarly ignore the Court. Moreover, from at least a political constitutionalist point of view, it is important that the UK government is given a margin of discretion to work out what is and isn’t “proportionate” for both competency and democratic reasons.

 

This latter point leads me to conclude that those against the ECHR would do well to remember that many of the Convention rights are drafted in non-absolute terms and, in contrary to the notion that the ECtHR strives to take away all sovereignty from the British courts, in reality the Court has long followed the margin of appreciation doctrine. This doctrine affords national governments a degree of freedom in regards to the fulfilling of their ECHR obligations. The fact that the Council of Europe was prepared to accept a proposal that would only allow a small minority of prisoners the vote weakens the claim that the ECHR has taken away too much power from UK electives and exposes the often oversimplified narrative of those who take this stance.

[1] http://www.bbc.co.uk/news/uk-42271100