An Open Letter to Manchester Airport About Body-Scanners

Dear Mr Harrison

Body Scanners at Manchester Airport

I write with regard to the announcement today that all three of Manchester Airport’s terminals will be permanently equipped with body scanners, and further that it is absolutely compulsory for passengers to pass through them. Refusal to do, as I believe, will result in the passenger being prohibited from boarding his/her flight.

Whilst I accept that the vast majority of people, in the interests of expedition, would prefer the body-scanners, surely these have not been introduced for mere populism. Of course, there are also the strong security benefits too.

As I am sure you are aware, there are however concerns about privacy, racial (and gender) profiling, and abuse of powers. The privacy issues are the most controversial, and I ask whether there has been due regard to children, the elderly and transsexuals who fear obloquy. Secondly, but no less germane, is the issue of racial and gender profiling. Can you assure passengers the scanners will be used in a lawful, proportionate and sensitive manner based on rational criteria rather than racial or religious bias? Similarly, that they will not be used by voyeuristic security staff?

Lastly, abuse of powers and the retention of the images. Will there be any legislation passed (primary or, more likely, subordinate) which deals specifically with the retention of such images?

I fully support any counter-terrorist measure which is undertaken to protect the citizen’s right to life. Nevertheless, the right to privacy is another human right, and I seek confirmation that this right has been fully considered and appreciated.

If you are amenable, I would be happy to come to the airport to talk to you personally about the efficacy of the scanners, and the other issues in this letter.

Kindest regards.

Yours faithfully

Zak Golombeck

Liu Xiaobo: Demanding change to anachronistic regime

Today’s announcement that Chinese human rights activist, Liu Xiaobo, has been awarded the Nobel Peace Prize is no cause for merriment. It is a wake up call to all those who are either apathetic or naïve to the status quo in the People’s Republic of China, insulting as that name may be (Lui says it is the “people’s republic” under the “Party’s dominion).

First, some facts. Liu Xiaobo is currently serving an eleven-year sentence in a Chinese jail. The crime: demanding reform to an anachronistic system (non-violently, by the way). In December 2008, Xiaobo authored Charter 08, a revolutionary document in the form of an open letter, which called for broad constitutional and political reforms. As a Western democrat glancing at the sub-headings – protect human rights; election of public officials; freedom of expression – it illustrates the grave problems that China is currently faced with. To us it would be a tick-box exercise of the rights and freedoms we already enjoy, at times indistinguishable from our very own Human Rights Act.

Apologists of China’s regime cite their “economic reforms” of privatisation and “moves towards capitalism”. These may be true and at times they are welcomed, but beyond the economic policy there remains a totalitarian regime who maintain their flagrant violations of fundamental human rights. As is stated in the preamble of Charter 08, the inclusion in the Constitution regarding the respect and safeguard of human rights “stops at the paper stage…there are laws but there is no rule of law…there is a constitution but no constitution governance”.

What can we do?

-                     I call upon pre/post university students and others embarking on a trip to China to make other plans. Visit Tibet instead!

-                     Try not to buy Chinese goods in abundance (realistically, I understand the difficulty this may cause, but use your best endeavours not to)

-                     Lobby your MP to raise the issues of Tibet, Liu Xiaobo etc in Parliament

-                     Donate to charities for the welfare of Chinese animals (only reason this important issue was not expanded on in the main text is because I would have said things I would in turn regret)

Lastly, never take our rights and freedoms, bestowed to us by the European Convention on Human Rights and, more recently, the Human Rights Act, for granted. As the late Lord Bingham famously said, which of these human rights would we wish to discard? We may bemoan the inequities of our own system (as we have the ‘right’ to do), but we should realise how lucky we are.

The Territoriality of the Human Rights Act

Boys, we leave the base tomorrow. Leave your human rights behind.” The disappointing decision regarding the territoriality of the Human Rights Act. (And step forward Lord Philips, the originalist)

Today the Supreme Court delivered one of their most important decisions since their formation last year by overturning the decision of the Court of Appeal regarding the territoriality of the Human Rights Act 1998. For the summary and judgment of the Supreme Court, click here.

Questions are already being asked about whether the decision is binding, as one commentator has opined that the judgment is obiter, and thus not binding on lower courts and future decisions. If so, the 127 page judgment is a spectacular dissertation by the nine justices. I do not wish to discuss the obiter / ratio nature of the judgment, save to say that even if the judgment (or parts of it) are deemed to be obiter, then it will take a courageous judge to depart from powerful obiter from nine supreme court justices. There is dicta and dicta.

As one person retorted when I asked them their opinion on the decision, “well why join the army then?”. This retort is as ridiculous as it is ignorant. Nevertheless, it highlights the need to set out the facts of this sad case unambiguously. Private Jason Smith was deployed for service in Iraq shortly after the invasion in June 2003. By August the temperature in the shade was exceeding 50 degrees centigrade. On 9 August he presented nausea and dizziness; however over the next few days he was employed on various duties off the base. On 13 August he collapsed and died of hyperthermia.

Back to the “jurisdiction issue”. Article 1 of the ECHR provides:

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention”.

Private Smith’s mother issued proceedings invoking Article 2 of the ECHR – the right to life. Both the High Court and the Court of Appeal accepted that soldiers abroad serving in Iraq could enjoy the protection of the Human Rights Act 1998, both in and out of their base or military hospital. The Supreme Court, by a majority of 6-3, disagreed. Led by Lord Philips, the majority held that the jurisdiction under Article 1 of the ECHR was limited to the military bases, hospitals and detention centres (as per Al-Skeini).

Lord Collins went further, stating that there are three exceptions to the territorial notion of the jurisdiction of Article 1: a) territorial jurisdiction by a state over the territory of another contracting state; b) extensions of territorial jurisdiction by analogy; c) commonsense extensions to fit cases which plainly should be within the scope of the Convention. He accepts that extension of jurisdiction to military bases and hospitals falls within these exceptions. Nevertheless, Lord Collins holds (or merely thinks!) that “there is no basis in case-law, or in principle” to extend the jurisdiction to the entire armed forces abroad.

Lord Philips focuses his conclusions on the precedents of Bankovic, Al­-Skeini and Gentle. Whilst I accept that our supreme court must seek to follow the principles of stare decisis and apply this accordingly. But what about allowing our law to evolve? Should this not be the real function of our new “supreme” court? Lord Philips, erroneously in my opinion, provided a rather originalist construction of the European Convention. He held that the founding fathers would not have wanted to extend the Convention extra-territorially after the horrors of the Second World War. Lord Mance, dissenting, rubbishes this opinion. He claims that the scope and application of the Convention would “probably surprise its founding fathers in many respects”.

Lord Mance, who provided the main dissenting opinion, considered that as an occupying power in Iraq, the UK had an absolute power under international law over the safety of its forces. This, he went on to say, was not restricted to Iraq (or Afghanistan), but depended on a reciprocal bond of authority and control. Lord Mance is of the belief that the Strasbourg will hold that the armed forces of a state where within the meaning of Article 1 “wherever they might be”.

The territoriality of the Human Rights Act is the central issue of the appeal to the Strasbourg court in the case of Al-Skeini. Subject to the decision in this case, it looks more than likely that the Smith case will also reach Strasbourg in years to come. All the justices accepted that the Strasbourg court was the proper tribunal to resolve this issue. Nevertheless, it was incumbent upon them to decide this matter and await Strasbourg’s concurrence or dissent.

For me, it is baffling that our armed forces can enjoy human rights protection whilst on base, ostensibly safe from the enemy, yet they enjoy no protection when they enter battle.  Or as Lord Mance opines, it is “unrealistic” to distinguish between the existence of protective duties of the UK towards its armed forces at home and abroad. Absurd and illogical. The relationship between the UK and its armed forces, Lord Mance says, is seamless. The protection it affords its troops is evidently not. The relationship should not be territorial, it should be universal.

The decision of the Strasbourg court in Al-Skeini, I hope, will bring clarity to this issue and the right conclusion. However, the problem remains that the human rights sceptics (or Eurosceptics, or xenophobes) will continue to disregard the decisions of the European Court as intervening in our sovereignty. The Supreme Court missed an opportunity to support and strengthen the HRA.

Why Cameron should not oppose Bloody Sunday prosecutions

After 12 years and millions of pounds spent, on Tuesday 15^th June Lord Saville of Newdigate is to hand down his findings of the events of 30^th January 1972 – one of the darkest days in Northern Ireland’s history: Bloody Sunday.

The Guardian revealed earlier this week that the Lord Saville will conclude that some (if not all) of the fourteen deaths were unlawful. If this is true, then the corollary may be that British soldiers will be prosecuted for manslaughter, or even murder. Were this to happen, whether the prosecutions were brought by the Public Prosecution Service or by the victims’ families, David Cameron should not intervene.

The first reason is constitutional – the independence of the judiciary. Any form of opposition to the prosecutions would be antithetical to Cameron’s “new politics”, and would render his criticism of New Labour’s authoritarianism as mere canting.

Secondly, the prosecutions would show that justice was being served. The Right will oppose any latent castigation of the armed forces for the killings, in particular those which are associated with the killings of what were suspected to be IRA militia. As Dicey enunciated, all men, British paratroopers or IRA militia, must be equal under the law.

Michael Mansfield QC argues that it was “the persistence and dignity of the families which brought [the Inquiry] about”. I suspect that the PPS will refuse to bring their own prosecutions (probably due to some quasi-judicial deference and/or fear), and therefore yet again the families’ persistence and dignity will be necessary.

Britain cannot preach to the world about justice, rule of law etc if we cannot adhere to it ourselves. In 1972 our forces were on the streets of Londonderry. Today they are on the streets of Kandahar. We cannot let impunity prevail; not then, not now, not ever.

My initial thoughts on flotilla attack

“19 people killed as Israel storms flotilla delivering aid to Gaza.” Whatever your political stance, this does not read well for Israel and the peace process, and consequentially is a PR success for Hamas. At this moment in time Israel cannot afford to lose her friends, but many will be unable to not condemn these actions.

Mehdi Hasan of the New Statemans rightly points out here that Israel never misses an opportunity to score an own goal, and now risks losing her only real friend in the Middle East, Turkey. I concur with this; but I forget the last time that the New Statesman expressed their deep disapproval of Hamas' regime. 

Already there is talk of embargoes, sanctions and breaches of international law. These are merely reactionary comments and would be retrograde leaps for the peace process. I do not wish for the killings to be watered-down in any way and I accept that they must be deplored; however, those who call for international action against Israel must understand the potential corollary of their wishes – sympathy for the Hamas regime who perpetuate to call for the destruction of the state of Israel. Where is the international reproach of their totalitarian regime?

Indefensible Action

Not even the staunchest of Zionists can defend the decision of the Israeli Government to refuse the great thinker, Noam Chomsky, access into the West Bank. Since the first Lebanon war in 1982 Chomsky has been a critic of Israeli government policy. Nevertheless, he was never called for violence against Israel, nor does he pose any security threat. On the contrary, those who would take time to read his work would open their minds to the peace process.

Chomsky’s retort when asked the last time he was refused access was “Czechoslovakia in 1968, after the Russian invasion”. Is this the comparison that Israel seeks? Curtailing freedom of speech is not the actions of a true democracy. These actions are encouraging academic boycott. 

The Real Great Ignored: Campaign for prisoners' voting rights.

Today I wrote to the new Lord Chancellor, Kenneth Clarke QC, to ask him to commence a consultation into a very important democratic issue: the disenfranchisement of prisoners.

The issue involves the most fundamental of democratic rights, the right of suffrage. Under the current law, Section 3 of the Representation of the People Act 1983, "a convicted person during the time that he is detained in a penal institution in pursuance of his sentence ... is legally incapable of voting at any parliamentary or local election.” This was ruled incompatible with Article 3 of Protocol 1 of the European Convention on Human Rights in the case of Hirst v. United Kingdom (no. 2). (http://www.bailii.org/eu/cases/ECHR/2005/681.html)

In their judgment, the Grand Chamber recognise that the right of suffrage is not absolute, and that Contracting States must be given a margin of appreciation. More importantly, the Court point to the r'aison d'etre for the provision - punishment. 

Prisoners, by reason of their status, have already received a sentence of imprisonment which is (meant to be) commensurate to their crime. Proscribing them from voting is an affront to democracy and serves no legitimate aim. It merely provides them with a secondary sentence.

The judgment of the ECHR was five years ago. Government must act now to ensure that the prison population are able to vote for the next election , whenever that may be.

I urge all readers to lobby your local Member of Parliament and / or write to the Lord Chancellor.

With dignity I shall go. Thank you Gordon.

Gordon Brown will resign as Labour leader later on this year, but will remain in place for the time being to facilitate the formal negotiations between Labour and the Liberal Democrats in the hope of forming a "progressive coalition". For Brown, he has "no desire to stay in [his] position longer than is needed to ensure that the path to progress is assured". With dignity he shall resign.

This was, of course, a political decision. Whilst negotiations between the Liberal Democrats and the Tories are perpetuating, whisperings from within both camps have told of a number of "sticking points" and certain "red lines" not being crossed. The Tories have just announced that they have offered the Liberal Democrats a referendum on the Alternative Vote system. But this will be no panacea to their differences, and maybe not even the electoral reform the Liberal Democrats so wished for. And there still remains disagreements (ideological and political) over the EU, immigrations and defence.

Whilst David Miliband has somewhat prematurely declared that he will enter a leadership contest, we should all (whatever your political persuasion) stand and laud Gordon Brown. Lest we all forget his achievements as Chancellor, and also as Prime Minister too. As Chancellor he gave the Bank of England operational independence, sustained economic growth and reducing unemployment. As Prime Minister, he handled the banking crisis with calmness and skill. A true economic doyen.

I shall in the next few days be setting out my predictions and hopes for the future of the Labour Party. But for now out of deference and thanks, this is time to say 'thank you' to Gordon Brown.

Liberal Dilemma

Unsurprisingly, the Parliament is hung with the Conservatives as the largest party. A further twenty seats are needed for David Cameron's "modern, compassionate Conservatives" to achieve an overall majority, go to the Palace, and become the twelfth Prime Minister to kiss her Majesty's hand. 

Earlier today David Cameron made a "big, open and comprehensive offer to the Liberal Democrats" to either form a formal coalition or come to an agreement on a Queen's speech. The Liberal Democrats leader was unequivocal that, following another inequitable votes-to-seats ratio, electoral reform was a necessity. 

The question now: will the Liberal Democrats coalesce? I for one hope not. This is not merely nuance. There is a plethora of key ideological differences between not only the two leaders, but the two parties. Europe, immigration, constitutional reform, schools, inheritance tax, Trident etc. Of course, the scent of power may be too strong for Clegg to turn down. But I would hope that he can see beyond the sycophancy. Cameron and his team are profoundly Euro-sceptic, opportunistic and anti-civil liberties. Lest we forget, Cameron is no success story otherwise I would not be writing this post now. 

Refusing electoral reform is incontrovertible, and it seems as if the Conservatives may have to back-down in order to conciliate. But these two parties coming together is more than just one policy. They are antithetical. In my opinion, any agreement by Clegg would be an affront to liberalism. 

Future of the Human Rights Act

Even before the 2010 manifesto, the Conservative Party under David Cameron have spoken of their commitment to repeal the Human Rights Act 1998, and replace it with a second British Bill of Rights. But look deeper to right-wing opposition to the Act and unearthed is a noticeable "ism" - Euroscepticism. 

The Act, which came into force on 2nd October 2000, incorporates the European Convention on Human Rights into British law, thereby ensuring that those who believe a public authority has in infringed their rights do not have to travel to Strasbourg, but can lodge their case in the British Courts. Moreover, it provides our judiciary with power to declare legislation incompatible with the Convention. One last, important provision is that the British Courts must "take into account" any jurisprudence from the Strasbourg court. Here lies the scepticism.

The right-wing press enjoy nothing more than a "breach of human rights" story, only to then pour scorn on the member of the judiciary for applying the law. The Act is often abused; nevertheless, the primary cause of the antipathy towards it is that somewhere in the equation lies the word "Europe". 

However, the chief Tory who has been asked to address the "HRA problem", Dominic Grieve, has expressed his intention to remain a party to the European Convention, and further that the text of the British Bill of Rights will mirror the text of the Convention. So I ask, why the rigmarole? Unless, as was suggested by eminent human rights practitioners in yesterdays's Guardian, some rights will be discarded. 

The Act has received intense opposition: undemocratic, un-British, a criminal’s charter, to name just a few of the epithets of the Act. However, which of the following rights are “unnecessary”, or “un-British”? The right to life. The right not to be tortured or subjected to inhuman or degrading treatment. The right not to be enslaved. The right to liberty and security. The right to a fair trial. The right not to be retrospectively penalised. The right to respect for private and family life. Freedom of thought, conscience and religion. Freedom of expression. Freedom of assembly. The right to marry. The right to free elections. 

Which of these rights would the Conservative party wish to discard? 

Britain needs a cathartic election. A vote for the Lib Dems will go some way to ensure this.

The Guardian have today announced their endorsement of the Liberal Democrats for the upcoming General Election. However, the endorsement does not appear to be limited to the 6th May - it is an endorsement for the future, and a damning indictment on the New Labour Party. 

Labour has lost its moral compass, from as early as 2003 to the present day. The commission of a crime of aggression in Iraq, control orders, complicity in torture, savage cuts to legal aid, detention centres. I could and should go on. Embarrassingly, the party which introduced the Human Rights Act is sat third on the list of the three parties who seek to promote these basic and fundamental rights.

The Liberal Democrats stand against all of the above and more. They are the only genuine progressive party. I do not wish to pour hot water over the entire period of the past thirteen years. The minimum wage, civil partnerships, gender recognition, and SureStart are laudable achievements, but alas not enough. 

Our system needs radical reform. Labour have pledged change, but their pledges seem weak and disingenuous. It is deplorable that constitutional reform, promised since 1997, has not been achieved. The issue of House of Lords reform has been subordinated for too long. We sing with pride about our democracy, yet we have an unelected upper chamber, obstructionist Lords Spiritual, disenfranchised prisoners and an inequitable electoral system.

Britain needs a cathartic election. A vote for the Liberal Democrats will go some way to ensure this.

Third and Final Leaders' Debate: Summary

There we have it - the leaders' debates are over. Successful? Definitely. Decisive? We shall see. Tonight's third and final debate was feistier than the past two, particularly on the issue of immigration (an issue which has had more prominence after bigot-gate).

The economy was Brown’s to lose, and he did not. He proved that he is the doyen on the economy after his Chancellorship. His technocracy paid off, and there was little criticism (and rightly so) for the way in which Brown has dealt with the recession.

The most heated debate came on the issue of immigration. Cameron dodged direct questions from both of the other leaders about his proposed “cap on immigration”. My thoughts: arbitrary and vacuous. Merely electioneering to show that his party want to deal with immigration, but not too sure how. The two old parties criticised the Liberal Democrats purported “amnesty” on immigrants. Clegg was hesitant, but managed to defend his party’s position. Bring them into the system and, if necessary offer citizenship, or alternatively deport. How do the other parties propose identifying those who are here illegally?

Cameron perpetuated his party’s anti-European stance, and further perpetuated his intransigence over the increase in the Inheritance Tax Threshold. The parties were virtually on other issues including the loopholes in the benefits system and housing.

Democracy has been the winner and I predict a higher turnout in next week’s election. I often thought that the debates would focus far too much on style and leave substance on the sidelines. On the contrary, policy has been forensically debated, and credit must go to all three leaders for that.

The closing submissions were all strong. However, I do fear that we may have heard Gordon Brown’s valedictory? And possibly even Cameron’s too?

Second Leaders' Debate: Summary

Tonight’s debate was meant to be focusing on international politics and foreign affairs. Despite a vigorous debate on the future of the Trident programme, the European Union and Clegg’s reminder about the illegality of the Iraq War, there was little debate on foreign policy. Where were questions about Iran? Where were questions about the Israel / Palestinian conflict? Sudan? Zimbabwe?. Instead we got a pointless question about the Pope’s visit.

Brown commenced with honesty – “If you want style and PR, count me out”. He delivered strong substance, and spoke with pride of Labour’s recent decisions on the economy. I thought he missed a crucial opportunity to embarrass Cameron about his new bedfellows in the EU, namely the homophobes and anti-Semites. Cameron improved on last week’s poor performance, but only a trifle. Cameron is still failing to sell this new “modern, compassionate Conservative party”. He was eventually embarrassed by Clegg when asked directly about his proposed cap on immigration, for which he provided no numerical answer.

Trident and immigration policy highlighted bipartisanship between the Tories and Labour against the Lib Dems. It was nice to see Clegg hold his own, and remain faithful to his ideologies.  The novelty of Clegg has definitely not worn off, and I predict a further boon for the Lib Dems in the polls.

Just a small mention of any gaffes. We are still waiting for a Ford-esque gaffe. Last week we had Cameron expressing the Chinese as a nuclear threat. This week we didn’t have a gaffe from Cameron, more an inappropriate comment about being “blown away” by the courage of the troops in Afghanistan. Reckless words ‘Dave’.

Clegg weathered a strong storm from both Cameron and Brown, and from a ferocious Fleet Street. After now 180 minutes and a long week, Clegg remains the frontrunner of the leaders. Naturally, with our FPTP system this will never equate to seats  - but he has proven that we have a three, not two, party system. 

Leaders' Debate: Summary

Clegg won the night, hands down. Only the most partisan Tories and Labourites will say otherwise. But then of course he has far less to lose. Brown had a predictably slow start, but when it came to his forte - the economy - he shone. Also, his risk of humour regarding Lord Ashcroft paid off. Cameron was surprisingly disappointing. Many, including myself, expected a solid performance with perfect oratory. We got neither. Of all the parties, it will be Tory HQ which is the most concerned.

Gaffes were kept to a minimum. One important one (probably swept aside by the general interest of the debate itself) was Cameron referring to China as a nuclear threat. I suspect Hague will have to make vigorous apologies to Beijing.

Looking now to April 22nd, both Brown and Cameron have work to do. But the most pressure will be on Clegg  -he has a lot to live up to.

In summary, boon for the Liberals; Brown satisfied; Cameron disappointed. A great day for democracy.

The Pope has been arrested for crimes against humanity – This is no Hollywood plotline, just maybe a New Atheist conspiracy.

The news broke this week that the two vanguards of the New Atheist Church, Richard Dawkins and Christopher Hitchens, are seeking expert legal advice regarding the merits of having an arrest warrant issued for the arrest of Pope Benedict during his visit to Britain this September. The purported charge – crime against humanity. This charge relates to the Pontiff’s alleged complicity of sexual abuse during his period in office as Cardinal in 1985.

                                                                      

Whilst the Atheists are rejoicing, the Catholic Church is desperately trying to restore some form of normality. As I am neither an Atheist, nor a Catholic, I hope I can provide an objective viewpoint, whilst also providing some legal opinion.

The question of Britain exercising their “universal jurisdiction” is not in issue. This is possible as per their obligations under international treaties including the Fourth Geneva Convention and the Rome Statute of the International Criminal Court (both incorporated into British law by primary legislation). The core issues appear to be: 1) Does the alleged cover-up constitute a crime against humanity? 2) Under which British Statute will the Pope’s alleged crime be found? 3) Will the Pope enjoy immunity? 4) If all fails in Britain, can the Pope’s case be referred to the International Criminal Court?

The first question is evidential. There is a plethora of case-law, both national and international, regarding crimes constituting crimes against humanity. Whilst the charge does not present a prima facie crime against “humanity” compared to egregious crimes committed by despots and tyrannical rulers, the Rome Statute clearly defines the term. Article 7(g) states:

                “…sexual slavery,…or any form of sexual violence of comparable gravity”.

Despite the Pope’s alleged offence being ancillary, it is still a crime under international law in that he has assisted in concealing the commission of that offence. Is, however, this terminology used by Dawkins mere hyperbole for the ears of his own ‘flock’? I think so. There hasn’t yet been full disclosure of all the issues in relation to the 1985 incident, but the foreword of Article 7 of the Rome State includes important words:

“For the purposes of this Statute, “crime against humanity” means any of the following when committed as part of a widespread or systematic attack directed against any civilian population”.

Furthermore, the term is defined more specifically in the Explanatory Memorandum of the Statute as not being “isolated or sporadic events”. If proven, the acts are of course wrong and deeply embarrassing for the Vatican. “Systematic” they most definitely were not.

The New Atheist’s case is weakened yet further in relation to under which statute the arrest warrant should be issued under. The International Criminal Court Act 2001 is ruled out – Section 51 states that the Act applies to acts committed within the UK, or outside the UK by a British national. The Criminal Justice Act 1988 only applies to acts of torture (see Section 134/135). The Geneva Conventions Act 1957 is the only option, providing of course that they prove that the alleged crime was a “crime against humanity”.

The third issue presents more abstruse legal argument, and does not appear to be ground that has been covered previously. The Vatican has said it will vigorously defend the Pontiff, and has indicated that the New Atheists will be barred by the maxim of immunity ratione personae – immunity for acting Heads of State. However, despite the Pontiff being the head of the Vatican, is the Vatican legally recognised as a state by customary international law?

The New Atheists state that the Vatican is a construct of Mussolini, and was given its status as “permanent observer” at the United Nations as a placatory gesture and out of deference for the Pontiff. Moreover, the Vatican (or Holy See) does not enjoy status as a “state” by any international treaties and does not have sovereignty over its borders. If, however, a court were to find in favour of the Vatican having “state” status, then the Pontiff would usually only leave office at the time of his death, and would therefore receive impunity.

Lastly, can the case be referred to the International Criminal Court? Answer: yes, but with extreme difficulty. The Vatican (even if it is considered a state under international law) is not a Member State of the Court, and it would therefore require a United Nations Security Council Resolution to refer the case to the Prosecutor. If the five permanent members of the Security Council are struggling to reach a multilateral agreement regarding sanctions on Iran, something tells me there will be intransigence from one, if not all, of the members for the arrest of the Pope.

One positive for the Atheists about referring the case to the ICC is that the Rome Statute is that acting Heads of State cannot enjoy immunity (see Article 27) – just ask Omar al-Bashir!!

Say the case does end up on the desk of the Prosecutor, he will most likely show judicial deference and decide not to prosecute such a religious man. Also, lest us forget the raison d’etre of the Court – to establish a permanent tribunal for the most serious of international crimes, set up following the success of the two tribunals for crimes committed in Rwanda the Former Yugoslavia. This alleged crime that the Pope has committed is not a “crime against mankind itself”.

If the arrest warrant is issued, our Government will not have constitutional power to intervene despite probable calls from the Catholic community and Lords Spiritual. I would implore Government to respect the independence of our judiciary, irrespective of the high-profile arrestee.

The thought of the Pontiff appearing before the Old Bailey is unbelievable (in both meanings of the word). Nevertheless, should it play out as Dawkins and Hitchens are planning, I would not castigate them. Their motives are questionable and partly hedonistic; however, no person is above the rule of law and no person should receive impunity for a crime against humanity , not even the descendant of Saint Peter. 

“Be you never so high, the law is above you”.

Strasbourg has spoken, the case is closed

The chasm between Strasbourg and London is at its widest for some time. There are countless examples of cases in which the British Courts have dismissed a claim for a breach of human rights and then the appellants have successfully appealed to Strasbourg: S and Marper v. UK; Gillan and Quinton v. UK to name just two recent examples.

Lord Hoffman, in his first extra-judicial comments made shortly before retiring as a Law Lord, spoke of his concern about the legitimacy of the Strasbourg Court. Lord Rodger in AF (2009) UKHL 28 (judicially but rather abruptly) said rather laconically “Argentoratum locutum, iudicium finitum – Strasbourg has spoken, the case is closed”. And most recently, Lord Chief Justice, Igor Judge, has urged the lower courts to “save the common law”, and rely on common law precedents rather than surrendering to Strasbourg.

Lord Kerr has given the staunchest judicial backing to the jurisprudence of the Strasbourg court:

“The case-law of the ECtHR has, I strongly believe, enriched and enlivened our own human rights law … the unrivalled access that its jurisprudence gives us to experience of how human rights issues are resolved throughout the forty seven member states of the Council of Europe is one which we would be unwise to abandon”.

He does however talk of his disconcertment that only Ireland and the United Kingdom have legislative obligations to “take account of” Strasbourg jurisprudence.

I sit closer to Lord Kerr on this issue. There is much to gain from the jurisprudence from Strasbourg (as Strasbourg will also gain much from our senior judiciary). But the chasm is perilously wide, and with further appeals soon to be heard by the Grand Chamber in Al-Skeini and Al-Khawaja, the gap could become inoperable.

Human Rights - A post election issue

Talk of written constitutions, abrogation of the Human Rights Act and full-scale review of human rights legislation may be rife in the robing rooms or law libraries; however, as has been the case in past election run-ins, human rights must take a back seat to other more pertinent issues at the upcoming election. In all honesty, I would rather it did.

Inexorably, the economy will take centre stage, and despite my zeal for human rights even I cannot draw a viable link between the economic downturn and human rights (of course, not forgetting our freedom to express our disdain towards the mercenary bankers). Afghanistan will be there or there abouts and rightly so. Nevertheless, issues including the DNA database and prisoners’ voting rights will not be enunciated by prospective parliamentary candidates at the doorsteps of the electorate. There will be few (difficult) people like myself who will purposely raise the issues, only to hear a pithy retort along the lines of “I will look into this important issue and revert back to you”. I am still waiting with bated breath.

Of all the three main parties, the Liberal Democrats are the only party at present who have coherent policy on the Act – retain it and never ever abrogate it. The broad church of Labour are split on the Act; after ‘bringing rights home’ in 1998, in the wake of 9/11 they have eroded civil liberties to an embarrassingly thin level. On the Left of the party they are calling for restitutio in integrum, whilst the Blairites and Brownites (ad idem for once) has called for constitutional reform that could see the Act replaced with a second British Bill of Rights.

The parties disagree on so many issues, whether it be core policy or mere electioneering. Take the case of Munir Hussain and homeowners’ rights – David Cameron contends that “human rights should be left outside the home”, whilst Labour and the Lib Dems support the current law, endorsed by the honourable Keir Starmer QC, Director of Public Prosecutions.

The indefinite retention of DNA and fingerprints for the innocent is another issue. The Government propose changes to introduce a hierarchy of retention periods commensurate to age and the gravity of the charge; alternatively the Lib Dems support blanket non-retention following the decision of the Strasbourg court in S and Marper v. United Kingdom.

Post-election the main three are going to have to return to the human rights drawing board whatever the outcome. A Lab/Lib coalition government will be the best outcome for the activists; however, I do not wish to do too much disservice to the new Conservative party. With figures such as Dominic Grieve and David Davis, I am hoping for positive influence on Cameronite ideology in relation to human rights.

The status quo is not dire, but nor is it acceptable. The Act has not lived up to expectation and there is still widespread misinterpretation of the Act leading to widespread antipathy.

So when you come to watch the leaders’ debates or you listen to the campaign speeches by the three leaders, do not sulk at the notable absence of rhetoric on human rights. We do not want rhetoric, we want action. This will only come post-election.