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.

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.

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?