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.