Ramblings of a Scottish Student

Those of you who read my blog on a regular basis are probably, one would imagine, fed up with my topics on Human Rights, Fundamental Freedoms and Civil Liberties.  I can’t seem to stop writing about it though.  If I do decide to continue pursuing law as a career I’m looking at doing an LLM in Human Rights (now, there’s a surprise…not).  They are fundamental to our lives and without them we would live in a very different place.  It annoys me when people just seem to sit back and not care enough to fight for their protection!

I was reading The Student Law Review (Summer 2009 edition, Volume 57) and came across a number of article concerning Human Rights and it has lead me once again to blog on the matter.

Graham Arnold (a Barrister at Farringdon Chambers) wrote some very interesting things on the subject in an article entitled “Time for change:  Human rights and counter terrorism policies”.  He writes about a report called “Assessing Damage, Urging Action” which was prepared by the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights.  He wrote:

The panel points out that the framework on international law is being seriously undermined by states reneging on their treaty or customary law obligations.  Of particular concern is the fact that the erosion of such principles is being led by liberal democratic states with long histories of developing and protecting such principles.

This is an observation that I have made many times before.  Countries such as the United States of America and the United Kingdom have been blatantly failing in their obligations with regards to Human Rights.  In the United States we have seen, inter alia, The Patriot Act, Guantanamo Bay, military tribunals instead of criminal trials for those suspected of terrorism and extra-judicial rendition.  While in the United Kingdom we have seen, inter alia, the introduction of Biometric ID cards, control orders and increased pre-charge detention for terror suspects.  At the same time these countries have been parading round the world trying to impress upon other nations the need for them to observe human rights – such hypocrisy.

Mr Arnold continues:

The panel concludes that many states have fallen into a trap set by the terrorists.  Ignoring lessons from the past, some states have allowed themselves to be rushed into hasty responses, introducing an array of measures which are undermining the international legal framework carefully developed since World War II.

Again, this is another observation that I have made on numerous occasions.  The terrorists openly declare that they want to destroy our way of life.  Our rights and our freedoms are part of our way of life.  People died fighting to protect them, and 60 years later they are being desecrated by Governments under the guise of counter terrorism.  All the national governments are doing is making the population less safe and allowing the terrorists to win.  When will they see that their responses are meeting the aims of the terrorists?

Mr Arnold continues:

The panel notes that there has been a rash of ill and broadly defined anti-terrorism measures which have encroached upon fundamental rights in an unprecedented way.  Such measures have frequently interfered with the rights of genuinely innocent people in a way that would not otherwise have been possible.

I’ve never made this point expressly, but it has been implicate in my many blog entries on the matter.  The measures which are passed through parliament are done so in such a rush that proper scrutiny is not given to them.  All this ends up with is a heap of bad law on the statute books which is badly defined and so wide in its application that it could be applied to the granny going to buy her messages from the supermarket.  Mr Arnold recalls the case of Walter Wolfgang.  He was, of course, the man who was detained under s.44 of the Terrorism Act 2000 after heckling the then Foreign Secretary, Jack Straw MP, during a speech at the Labour Party conference in 2005.

In his article, Mr Arnold writes:

The panel also warns of the risk of seepage of special laws into normal legal procedures and practices.  Extraordinary measures to address terrorism, such as reliance on secret information that is difficult to challenge, are already seeping into the normal functioning of the state and the ordinary justice system, with long-term consequences for the rule of law and respect for human rights.

We have already seen this.  I remember a case where a local authority used powers under the Regulation of Investigatory Powers Act 2000 to track a family to ensure that they were indeed living in a school catchment area.  RIPA was designed to assist the security services in the collection of evidence in their work (i.e. national security and counter terrorism).

Another article contained within the Student Law Review, this time written by Helen Fenwick (Professor of Law, Human Rights Centre, University of Durham) entitled “The breach of the peace doctrine and public protest”.  I’m not going to spend too much time writing about this article as the first one mentioned was my main impetus for this blog entry.  However, it was a very interesting read and made very points on the cases mentioned.

A final article on Human Rights was on the UK Government’s slow reaction to decisions of the European Court of Human Rights (ECtHR).  It used the example of Hirst v United Kingdom (No2) to illustrate this point.

Hirst v United Kingdom (No2) was, of course, the case that challenged the blanket ban on convicted prisoners from voting contained within s.3(1) of the Representation of the People Act 1983.  The challange was based on the reasoning that it was disproportionate and indiscriminate and therefore was not in compliance with the European Convention on Human Rights and Fundamental Freedoms (ECHR).  The argument was accepted by the ECtHR, but as yet the position remains unchanged.  Right at the end of the article it makes, what I think is, a very good point.  It says:

The government’s response to the decision in Hirst casts doubt on its commitment to human rights for all and the provision of effective legal redress for those whose rights have been found to have been violated by the independent courts.  Specifically it is inconsistent with a recent UN report which suggests that the domestic law in this area may be in breach of the UN Covenant on Civil and Political Rights 1966, and unless the consolation and legislative process is carried out soon the next general election is in danger of being held in breach of the European Convention.  More generally, it shows that a swift and genuine response to judicial pronouncements is essential to the effective protection of human rights. (“Reacting slowly to human rights judgements; the government’s response to the prisoner’s right to vote”, Steve Foster PhD, Student Law Review, Volume 57, 2009)

I have absolutely no comment to make on that extract.