0 Scotland ~ First Minister defends Human Rights

By Unknown | At 2:24 PM | Label : | 0 Comments

In a speech to the Pearce Institute in Glasgow, Nicola Sturgeon (First Minister of Scotland and Leader of the Scottish National Party) spoke of the British government's plans to "scrap the Human Rights Act."  She said:

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"When Lord Bingham spoke at Liberty’s 75^th anniversary in 2009, he posed these questions: “Which of these rights would we wish to discard? Are any of them trivial, superfluous, unnecessary?”

Those questions have never been answered – certainly not by the UK Government. And of course, that’s because these rights matter to all of us. They should be founding principles of any civilised society.



Now, I should maybe add here, that applying human rights isn’t always easy and nor should it be because it should challenge governments. Some of you will remember shortly after the Scottish Parliament was established, when Scotland’s custom of appointing temporary sheriffs was ruled as being incompatible with the right to an independent and impartial tribunal.

At the time that caused uproar in Scotland. But if you look back on that now, nobody would defend the old system. It involved members of the judiciary having their tenure renewed every year by the head of the prosecution service. And so although that decision was deeply uncomfortable for the Government at the time, it was hugely beneficial in the long term. And it improved our system of justice.

And that’s as it should be. Human rights aren't always convenient for Governments – but they’re not meant to be. Their purpose is to protect the powerless, not to strengthen those in power."

Precisely!  As Sturgeon also said - " ... Nobody believes that the UK Government will take this opportunity to strengthen existing human rights protections ..."

Numerous examples can be given about how the Human Rights Act has benefited the individual citizen - Please explore the first class Rights Info website.

What of human rights within the UK but beyond Scotland?

Sturgeon said, "The Scottish Government will also oppose any weakening of human rights protections – not just in Scotland, but across the whole of the UK. It has been rumoured and I have no idea whether these rumours are true that the UK Government will somehow try to carve Scotland out of what they are trying to do with the HRA

Let me be clear about this, we would have no interest whatsoever in doing a deal at Westminster which leaves rights intact here in Scotland, but dilutes them in other parts of the country or, as is perhaps more likely, protects human rights on devolved issues but not on reserved issues.

Human rights are not English, Scottish, Welsh or Northern Irish rights - they are universal rights.

We believe that this approach will benefit people in Scotland and across the UK. We also believe that it does stand a real chance of success. I believe that of those who want to see the Human Rights Act retained, we can ensure that it is retained."

Note:

Dominic Grieve QC - see Holyrood for discussion of his speech on human rights.  Mr Grieve's full lecture may be read at Faculty of Advocates.  He stated that the government- " .... will have to accept the overwhelming evidence that the Convention, when viewed in its totality, has been and remains today a success, arguably the single most important legal and political instrument for promotion of human rights on our planet."

Useful Links:

SPICe The Information Centre 25th September - The European Convention on Human Rights and the UK - Angus Evans and Iain McIver.

Scottish Human Rights Commission

0 Scotland ~ A note on the Human Rights Act and the Sewel Convention

By Unknown | At 6:01 PM | Label : | 0 Comments

The Independent 23^rd September  quoted Nicola Sturgeon (First Minister of Scotland and Leader of the Scottish National Party) as saying that:

“Responsibility for the Human Rights Act rests solely with the Westminster parliament, but European Convention rights are embedded into the devolution settlement and human rights itself is a devolved issue ...... That means that any attempt to repeal or amend the Human Rights Act is likely to require the legislative consent of the Scottish Parliament ..... It is inconceivable – given the breadth of the support which the Human Rights Act commands across the Scottish Parliament – that such consent would be granted. The Scottish Government will certainly advocate that it is not granted ..... The Scottish Government will also oppose any weakening of human rights protections – not just in Scotland, but across the whole of the UK. Human rights, after all, are not English, Scottish, Welsh or Northern Irish rights. They are universal rights."  (Here is the First Minister's full speech).

Whether consent would be required for repeal of the Human Rights Act (HRA) depends both on law and on an important aspect of the devolution settlement known as the Sewel Convention.

The Law:

The UK Parliament at Westminster is sovereign and may legislate anything it wishes for the devolved nations.  The Scottish Parliament may not repeal or amend the Human Rights Act 1998 (HRA).  This is the combined effect of the Scotland Act 1998 s29(2)(c) and Schedule 4.  

The Scottish Parliament, when operating within its legislative competence, may not enact anything that is incompatible with any of the Convention rights  - Scotland Act 1998 s29

Scottish Ministers  do not have power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights  - (see Scotland Act 1998 s.57).

The term "convention rights" is defined in the Act (s.126) as having the same meaning as in the Human Rights Act 1998 (HRA).

The Scottish Parliament is not prevented completely from legislating in relation to human rights.  For example, it created the Scottish Human Rights Commission.  However, the Scottish Parliament is prevented from amending the HRA and is also prevented from legislating incompatibly with the convention rights as included in the Human Rights Act 1998.  In this way, the law has embedded human rights into the Scottish devolution settlement.  It may reasonably be claimed that human rights lie at the heart of that settlement. 

Sewel Convention:

This is NOT a law but a convention that Westminster would seek the consent of the Scottish Parliament before legislating:

1)  for any matter on which the Scottish Parliament may itself legislate or

2) with regard to the legislative competence of the Scottish Parliament or the executive competence of the Scottish Ministers.

Would repeal (by Westminster) of the HRA engage the Sewel Convention?

Dr Mark Elliott has undertaken a detailed analysis of this question on his Public Law for Everyone blog.  – Could the devolved nations block repeal of the Human Rights Act and the enactment of a new Bill of Rights?


Elliot argues that the repeal of the Human Rights Act (“HRA”) by itself, without anything more, such as its replacement by a British Bill of Rights or the withdrawal of the UK from the ECHR, would not trigger the Sewel Convention

An alternative argument is to be found at the UK Constitutional Law Association: HRA Watch: Reform, Repeal, Replace?  Iain Jamieson: The repeal of the HRA and the Sewel Convention in Scotland

(Note: A response to the Jamieson argument was been published by Mark Elliott - Public Law for Everyone - The Scottish Parliament, the Sewel Convention and Repeal of the Human Rights Act: a postscript)


Whether it would be politically sensible for Westminster to repeal (without Scottish consent) the HRA in relation to Scotland is an entirely different matter.  It would be highly likely to turn Scottish opinion much more in favour of independence.


As Iain Jamieson argues, repeal of the HRA would necessitate amendment of the Scotland Act in which "convention rights" are currently defined as being the rights within the HRA.  However this point is detailed point is handled (and several legislative ways seem possible) an alteration of the relative powers of Westminster and Edinburgh seems inevitable and that would amount to a quite fundamental alteration to the devolution settlement. 

If Jamieson is right, and I submit that his view is to be preferred, then the Sewel Convention would be engaged and Sturgeon has made it quite clear that consent would not be likely.  The Elliott view also indicates that the Sewel Convention could be engaged if Westminster were to go beyond mere repeal of the HRA.

All of this would leave it for Westminster to risk the political consequences and exercise its sovereign powers to amend the Scotland Act or, alternatively, back off and leave things alone in Scotland.

Deeper political problems seem to exist in relation to Northern Ireland where the European Convention on Human Rights was part of the Good Friday Agreement which is, itself, an international agreement.

Whether it would be desirable for the level of human rights protection to vary from one part of the United Kingdom to another is a difficult question on which further in depth consideration may come to be needed.  That is a matter for another day.

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0 Lord Sumption creates a stir

By Unknown | At 4:11 PM | Label : | 0 Comments

Update - Lady Hale 6th November 2015 - Read Lady Hale's lecture at Birmingham University regarding appointments to the Supreme Court 

See Litigation Futures 12th October 2015 - Leveson: Host of senior judicial roles about to open up to women

See The Guardian 1st October - Number of female judges in UK "snowballing" despite equality row

Justice of the Supreme Court, Lord Sumption, was interviewed by the Evening Standard (ES) - "Rush for Gender Equality with top judges could have appalling consequences for justice."  This post touches upon two aspects of the interview: (a) Gender within the judiciary and (b) Human Rights.  The interview (and I assume here that the ES report of it is accurate) created quite a stir and the Supreme Court issued a statement informing us that - "Some of Lord Sumption's comments appear to have been misunderstood" and referring us to a speech he gave in November 2012  in which his position is set out in detail.  The speech should certainly be read in full.   

Gender:

The Evening Standard reported:



"One of the country’s most senior judges today warned that rushing to achieve equal representation for women at the top of the legal profession could inflict “appalling consequences” on the quality of British justice.

Lord Sumption, a Supreme Court judge, said he believed that the judiciary was a “terrific public asset” which could be “destroyed very easily” if the selection of candidates was skewed in favour of women.

He added that to avoid inflicting damage, campaigners for equality would have to be “patient” and suggested that it would need up to 50 years before the number of women on the Bench matched the total of men."

Achieving a better gender balance in the judicial ranks is certainly a serious concern and there has been some action to try to improve matters.  "Time for Equality" looked at the position across Europe and discovered that the UK does not figure well in the equality statistics.

"Diversity" is an even wider topic than simply the male:female ratio.  In 2012, the Lord Chief Justice issued a Diversity Statement in which he said that he and the Senior President of Tribunals were "convinced of the benefits of a more diverse judiciary" and they were "committed to supporting the development of the judiciary in ways that support greater diversity."  The statement continued:

"Appointment to judicial office is based solely on merit. The independent Judicial Appointments Commission (JAC) must, therefore, be able to select from the widest pool of candidates; and potential applicants must be assured that they will not be disadvantaged by factors such as ethnic origin, gender, disability, sexual orientation or background. They must also be confident that they will be treated fairly after appointment.

The judiciary is therefore committed, not only to encouraging suitable applicants to apply, but also to ensuring that principles of equality and fair treatment apply to all aspects of judicial life. It will therefore have regard to diversity in connection with deployment decisions wherever possible. It is also committed to developing the concept of a judicial career, as envisaged by the independent Advisory Panel on Judicial Diversity chaired by Baroness Neuberger in 2010 (the Neuberger Panel)."  (Link added).

Diversity Statistics are published annually by the judiciary and here are the latest.

Dr Steven Vaughan of the University Birmingham Law School published this excellent response to Lord Sumption's comments.   Dr Vaughan's response is a "must read" for anyone interested in this important topic.  He concludes: " ... the evidence suggests that women do not advance in the profession for multiple, complex, interlocking reasons and because of many and varied formal and informal barriers. “Lifestyle choice”, if it is relevant at all (and if it can be called a ‘choice’), is but one tiny part of what is going on."

Would "positive action" - (Note - I do not say "discrimination" - there is a significant difference) - improve matters?  There is a case for it - please see Diversity in the Judiciary: the case for Positive Action - (Kate Malleson - University of London - 2009).   Reasons against such action are set out in Lord Sumption's 2012 speech.

In 2014, writing on the Costitutional Law Group blog, Colm O'Cinnedie and Kate Malleson considered whether quotas for judicial appointment would be lawful under EU law and ended by saying: "Given the particular context of the judicial appointments process and the growing trend across Europe to adopt positive action measures to promote greater diversity in public institutions it is likely that gender and BAME quotas for judicial selection in the UK, if carefully designed, will be lawful under EU law."  Whatever the EU legal position, the "solely on merit" criteria applies nationally as set out in the Constitutional Reform Act 2005.  The Judicial Appointments Commission may seek to obtain as diverse a pool of candidates as possible BUT selection from within the pool has to be on merit alone.

It is not clear to me whether such positive action would actually be generally welcomed by the legal profession and strong opinions either way are likely to exist.  Those seeking appointment to the judiciary would naturally wish to feel that their application was treated on their merit as a candidate and not on some imposed quota.  It may be that much can (and will) be achieved by addressing those "multiple, complex, interlocking reasons" and the "many and varied formal and informal barriers" of which Dr Vaughan speaks.  However, without some positive action, Lord Sumption may well be right in saying that many more years will elapse before true gender equality is achieved.

The UK Supreme Court blog has also taken an interesting look at Lord Sumption's interview.  The blog states:

"If diversity is truly valued there are many steps that could be taken to progress towards it at a quicker pace than Lord Sumption suggests and without risk of appalling results. Indeed Lord Sumption’s appointment provides a perfect example. Lord Sumption was the first appointment straight from the Bar to the Supreme Court and to the House of Lords before it, for over 60 years. Why not do it again? There are plenty of women at the senior end of the legal profession who could match Lord Sumption for intellectual ability and – who knows? – may even possess other qualities that he does not have. Why not use his appointment as a model and invite men to bear with us until greater diversity is achieved: show a little patience perhaps."

Update - 25th September - Legal Cheek - At last, Lord Sumption has a friend! Top female QC comes out in support of under-fire Supreme Court judge  where some views of Sarah Forshaw QC, based on a full reading of Sumption's 2012 lecture, are set out.  (A link to the lecture is near the start of this post).

An opposing view was published by The Guardian - Sumption encapsulates the law's sexism: only quotas can challenge male privilege.

For some further interesting thoughts see Working Theory - Being positive about judicial diversity (23/9/15).

On human rights:

The promised plans for OUR human rights have yet to be revealed by the government.  The Conservative Party announcement last year at Party Conference time seems to have indicated the general trend in their thinking.  In his interview with the Evening Standard, Lord Sumption suggested:

" ... that British courts could successfully protect citizens from oppression if the Government presses ahead with its plan to replace the Human Rights Act with new legislation. ..... this was because there was “room for different ways of doing things” across Europe and added that it was wrong to “assume that exactly the same way of protecting fundamental human rights” was needed in every European country."

No one has suggested that all European countries adopt a uniform system but they have to apply the European Convention since it is binding in international law on the State.  I do not see the UK government actually withdrawing from the convention because the political price internationally appears to be too high. A British (or maybe English?) Bill of Rights is promised.  I say "or maybe English" because there are difficult problems with the devolved administrations and those problems will not have been made easier due to recent events in Northern Ireland.  To apply the Bill just to England (or England and Wales) may be seen by the government as a possible way forward though it is hard to see why different levels of human rights protection should apply depending where in the United Kingdom you happen to be.

Could, as Lord Sumption suggests, the British courts protect the people from oppression?  On the basis of common law alone that would have to be seriously questionable but what about on the basis of applying a Bill of Rights?  That cannot be answered now since we have not seen even a draft of the Bill and, when we do, it would depend on what the accompanying legislation permits the judiciary to do.  A further issue will be the stance adopted by the judiciary toward the Bill once it comes into law.

Meanwhile, it is worth reflecting that the European Convention on Human Rights Act 1998 has been OVERALL highly successful and beneficial.  Dominic Grieve - former Attorney-General - spoke of this to the Faculty of Advocates in Scotland.  He said:

“... The Government has stated that it will publish a detailed consultation paper on its ideas for a Bill of Rights and our future relations with the Convention this autumn. I very much welcome this ...”

“…I rather suspect that in doing so, it will have to accept the overwhelming evidence that the Convention, when viewed in its totality, has been and remains today a success, arguably the single most important legal and political instrument for promoting human rights on our planet…I am convinced that if this matter is debated with determination and good humour, we will get the right answer at the end of the day.”

The full lecture can be read here.

For many, we already have the "right answer" - the Human Rights Act 1998.

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0 Concern over Royal Marine Sergeant convicted of murder

By Unknown | At 12:52 AM | Label : | 0 Comments

The case of former Royal Marine Sergeant Alexander Blackman has again come into the news.  He was sentenced by the Court Martial to life imprisonment for the murder of an already wounded Taliban fighter.  His case was debated in Parliament (Westminster Hall) on Wednesday 16th September.  Material has come to light which was not presented to the Court Martial and may at least have the effect of reducing the offence to one of manslaughter due to diminished responsibility.    The Court Martial imposed a minimum term before eligibility for parole of 10 years but this was reduced to 8 years by the Court Martial Appeal Court.  Given the new material, the Daily Mail is campaigning to have the case considered by the Criminal Cases Review Commission.  The Commission has the power to refer the case to the Court Martial Appeal Court.



Court Martial Appeal - On an appeal from the Court Martial to the Court Martial Appeal Court, the minimum term to be served by Alexander Wayne Blackman was reduced to 8 years.  At the time of his trial by the court martial he was referred to as Marine A.  Previous posts on the case are at Murder in Helmand (11th November 2013) and Royal Marine sentenced for murder (6th December 2013).  The appeal is reported on Bailii as R v Blackman [2014] EWCA Crim 1029.   Readers of the judgment will be interested to note the strong mitigation detailed in paragraph 75 and the point the Lord Chief Justice makes about there being no need for an additional element in the sentence for deterrence purposes (para 76) where the LCJ stated:

' ... the particular circumstances did not require an additional term by way of deterrence to the sentence as the Court Martial found. The open and very public way in which the proceedings were conducted overall, the worldwide publicity given to the appellant's conviction, the life sentence imposed on him and the significant minimum term he must in any event serve before any consideration of parole will be sufficient deterrence.'

For further on this case, see also ICLR Weekly News

0 Death by Drone ~ Concerns and questions.

By Unknown | At 11:22 PM | Label : | 0 Comments

The British government decided that Reyaad Khan (a British citizen linked to ISIS) presented such a threat to the safety of British citizens within the UK that it was necessary to kill him by means of a drone strike.  At the time, Khan was in Syria. The government claims that this was lawful - see Prime Minister's statement to the House of Commons.  In a previous post, I reached the tentative conclusion that the killing may be lawful BUT everything would depend on ALL the detailed facts.  National security prevents us knowing those facts.

The use of drones to carry out targeted killings has attracted a considerable degree of analysis and critical comment particularly in relation to operations conducted by the United States of America.  Despite numerous concerns and questions, it has not been declared unlawful in all circumstances.  The following is a necessarily brief look at some of the reports presented to the United Nations.   

Professor Christof Heyns - 2013:

A Report 13th September 2013 by Professor Christof  Heyns(UN special rapporteur on extrajudicial, summary or arbitrary executions) made a number of recommendations including asking States to be transparent about the development, acquisition and use of armed drones - "They must publicly disclose the legal basis for the use of drones ..." (See pages 22-24 of the report).  The report does NOT condemn the use of drones for targeted killings in all circumstances.  Professor Heyns noted that - "Under international human rights law standards, the intentional, premeditated killing of an individual would generally be unlawful.  Where intentional killing is the only way to protect against an imminent threat to life, it may be used.  This could be the case, for example, during some hostage situations or in response to a truly imminent threat."

Ben Emmerson QC - 2014:

Report dated 11th March 2014 by Ben Emmerson QC (UN Special Rapporteur on the promotion of human rights and fundamental freedoms while countering terrorism).  Again, this report did not indicate that targeted killings by drones are inevitably unlawful but several concerns were raised.  Emmerson pointed to lack of consensus between States on several issues (see para 71).  These included:

"Does the international law principle of self-defence entitle a State to engage in non-consensual lethal counter-terrorism operations on the territory of another State against a non-State armed group that poses a direct and immediate threat of attack, even when the armed group has no operational connection to its host State?  If so, under what conditions does such a right of self-defence arise?  Does such a right arise where the territorial State is judged to be unable or unwilling to prevent the threat from materializing?  If so, what are the criteria for determining "unwillingness" or "inability" to act?"

Emmerson continued:

"Is the international law principle of self-defence confined to situations in which an armed attack has already taken place, or does it entitle a State to carry out pre-emptive military operations against a non-State armed group on the territory of another State, without the territorial State's consent, where it judges that there is an imminent attack to its own interests?  If so, how is imminence to be defined?"

Clear answers to those questions are not readily available.

Intelligence available to a government may indicate that a threat is to be carried out at some precise time.  However, a more likely scenario is that no precise time can be determined but the threat is a real one and will be carried out at some time in the near future.  In one sense, the threat is ever-present.  The USA has argued that it may time its responses to such threats by taking into account factors such as the need to reduce collaterial damage to civilians etc.  Imminence is discussed at paragraphs 57 and 58 of this UN report.

The problem for decision-makers:


Reports such as those of Professor Heyns and Ben Emmerson and an earlier report (2010) by Philip Alston (see here) only serve to highlight the uncertainties existing in international law with regard to use of force in self-defence particularly where the action is pre-emptive. 

The killing of Khan brings together several areas of difficulty: it was a pre-emptive strike and took place in a Sovereign State (Syria) and Khan was a non-State actor.

Serious concerns have been raised by the Rapporteurs but their reports do not go so far as to say that a killing such as that of Reyaad Khan would inevitably be unlawful.  In this penumbra, national decision-makers have to operate and they will be faced with difficult decisions.  As Mr Cameron said in Parliament - "I am not prepared to stand here in the aftermath of a terrorist attack on our streets and explain to the House why I did not take the chance to prevent it, when I could have done."

Philip Alston - 2010:

Alston's report (in 2010) said that "outside the context of armed conflict, the use of drones for targeted killing is almost never likely to be legal (para 85) and, outside of actual hostilities, there are few situations where the test for anticipatory self-defence would be met (para 86).  It is clear that the UK (and some other States) are engaged in armed conflict against ISIS.  Air strike action within Iraq was approved by the House of Commons in 2014 and, at that time, the government reserved a right to act against Islamic State within Syria in an emergency.

End note:

a) Given the obvious fact that many more States and even non-State actors will acquire drones for military use, it is incumbent on international bodies to bring forward answers to the various uncertainties highlighted in the reports.

b)  The report by Professor Heyns called for States to ensure meaningful oversight of the use of drones and, where appropriate, investigation and accountability as well as reparations for their misuse.  Philip Alston's report also pointed to lack of transparency by States in "disclosing the safeguards in place to ensure that killings are lawful and justified and the accountability mechanisms that ensure wrongful killings are investigated, prosecuted and punished" (Alston, 2010 para 87).  At para 89, Alston indicated some safeguards that should be in place.  Keir Starmer QC MP has recently called for drone strikes to have independent scrutiny and transparency.  The Guardian 8th September-  Drone strikes in Syria must have independent Scrutiny and Transparency

Clearly, achieving accountability would be difficult given that a lot must inevitably remain secret.  Nevertheless, as Keir Starmer has argued - "Accountability also requires some form of after-the-event scrutiny of each strike. While it may not be possible for such scrutiny to be wholly in the public domain, someone independent and standing outside the decision-making team must have a line of sight on the evidence and be able to form a view on the legality of the action and/or whether the policy in force was followed. His or her conclusions should then be published." 

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Other links:

Ben Emmerson QC

Professor Christof Heyns

Philip Alston

Non-State actors:

Here are some links to articles relating to Non-State actors.

Peace Palace Library - Non State actors

Application of international law to non State armed groups

Audio-visual library of international law - Rethinking the role of Non State actors

Rights and responsibilities of armed non-State actors