JUSTICE STUDENT HUMAN RIGHTS NETWORK

CONTENTS

• Welcome
• Introduction
• Briefings
• Case note
• People
• What you can do

There is abundant, but often poorly informed, debate on human rights in the current legal and political climate, particularly on the role of human rights legislation and on the tension between competing rights (such as the right to freedom of religion and the right to freedom of speech). JUSTICE has always sought to influence public policy and to promote respect for human rights and the rule of law through a variety of methods including independent research, briefings, and interventions in legal proceedings.

We hope that this network will provide another such method to influence public debate, specifically amongst students and trainees. Equally importantly, the network aims to facilitate an interactive forum through which its members voice their opinions and also become more involved in influencing public policy.

Initially this electronic bulletin will form the centrepiece of the network with:

• news and briefings on human rights issues
• case notes
• information on human rights careers and practitioners
• ways in which you can get more involved as a student or trainee.

However, we have also planned a series of seminars, details of which are provided in this edition of the bulletin. The first of these will take place on Saturday 25 November at the Guardian Newsroom. The seminar is free to attend but you must book a place. For more information and a booking form click here. We are keen to hear from you on a less formal basis and would welcome any responses to or feedback on the bulletins - simply email jshrn@justice.org.uk. Even better, if you would like to organise for a speaker from JUSTICE or affiliated with JUSTICE to come speak at an event at your institution, then do get in touch. Sign up for the network, get involved, and spread the word.

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From Roger Smith, JUSTICE's director

This bulletin is an experiment. Our aim is to encourage your interest in human rights, both as a subject and a possible career. We plan three bulletins a year - the next one will be in January 2007. The content will evolve as you give us feedback.

In this initial issue, we have chosen four topics on which to provide briefings. Those on the Human Rights Act 1998 and the European Convention on Human Rights provide a general introduction on two key documents. The third on counter-terrorism covers a vital contemporary issue on which JUSTICE has undertaken considerable work. Finally, legal aid represents an area of social policy underpinned by human rights obligations that is often unacknowledged. We have also included a casenote on an important Court of Appeal judgement on control orders. Our main website carries more detailed briefings and submissions.

In the 'people' section, there are interviews with four people for whom human rights provides a central part of their experience of work. Jennifer Smith is a young American lawyer working to improve the quality of advocacy by Chinese lawyers. Lord Lester of Herne Hill QC is a long-term human rights campaigner and advocate. Dr Adam Sandell is a doctor, stimulated by his experience of his patients in Newcastle, seeking to retrain as a human rights lawyer. Michael Smyth is a partner in the world's largest law firm, Clifford Chance.

On Saturday 25 November 2006, we are holding a seminar at the Guardian's Newsroom venue. This will be an opportunity to explore issues relating to human rights more deeply, with contributions from Suzanne Lambert, Rabinder Singh QC and JUSTICE staff - Eric Metcalfe, Sally Ireland and myself. We will also be able to discuss ways in which we can take this network forward.

I hope you enjoy this bulletin. Do give us your feedback and make suggestions for improvement. Give us your email address so that we can contact you direct. Join us either at the seminar in November or on one of the later dates on which we hope to run versions of the seminar in the New Year. We have included a section on 'what you can do' that gives details of other organisations that you might find interesting. Do think of joining us a student member.

Email jshrn@justice.org.uk

JUSTICE: www.justice.org.uk

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BRIEFINGS

The European Convention on Human Rights

The Human Rights Act 1998

Counter-terrorism and human rights

Legal aid and human rights

Briefing: The European Convention on Human Rights (ECHR)

What is the European Convention on Human Rights?

The ECHR was adopted in 1950 and ratified by the UK Parliament in 1951. It came into force in 1953. Adoption of the ECHR is a requirement of membership of the Council of Europe (CoE). The CoE - not to be confused with the European Union - is an organisation of 46 states with a remit 'to defend human rights, parliamentary democracy and the rule of law; to develop continent-wide agreements to standardise member countries' social and legal practices; and to promote awareness of a European identity based on shared values and cutting across different cultures'.[1]

What rights does the ECHR protect?

The first 12 articles of the ECHR cover substantive rights. A further six articles relate to their exercise or limitation - for example the right of a state to derogate from certain provisions in certain circumstances (Article 15), and a prohibition against discrimination in relation to ECHR rights (Article 14). A number of additional protocols have been negotiated. Those relating to procedure require unanimous ratification. Those extending rights protected by the ECHR are optional, coming into force only between ratifying states. The UK has signed and ratified some protocols - for example, Protocol 1 in relation to the right to property, education and free elections and Protocol 6 against the death penalty - but not all - for example, Protocol 4 in relation to civil imprisonment, freedom of movement and expulsion; and Protocol 12 which gives a freestanding right against discrimination.

Are all rights protected to the same degree?

No. The ECHR seeks to balance the rights of individuals against the duties of the state and, in some areas, the conflicting rights of others. Some rights can be suspended 'in time of war or other public emergency threatening the life of the nation' (Article 15). This is known as derogation. Rights can be divided into those which are:

a. Absolute - rights not subject to either qualification (for the pursuit of general aims, such as public safety or economic well-being) or derogation (limitation in times of emergency). Absolute rights under the ECHR are:

• the right to life (Article 2)
• the prohibition of torture or degrading treatment or punishment (Article 3)
• prohibition of slavery or forced labour (Article 4(1))
• the principle of no punishment without law (Article 7).

Note that some absolute rights nonetheless provide exceptions, eg the right to life (Article 2) does not include deaths that result from 'the use of force which is no more than absolutely necessary' in certain situations such as self-defence

b. Limited - rights not qualified (that is, cannot be limited for the sake of some general good) but can be derogated from in time of emergency. Limited rights under the ECHR are:

• the prohibition of forced or compulsory labour (Article 4.2)
• the right to liberty and security (Article 5)
• the right to a fair trial (Article 6)

c. Qualified - rights which are subject to legitimate interference for the pursuit of some general good (such as the protection of law and order or economic-well being) so long as the interference is 'in accordance with law' and 'necessary in a democratic society'. Qualified rights under the ECHR are:

• the right to privacy (Article 8)
• freedom of thought, conscience and religion (Article 9)
• freedom of expression (Article 10)
• freedom of assembly (Article 11)

Who decides what the ECHR means?

Ultimately, the European Court of Human Rights (ECtHR), based in Strasbourg. This should not be confused with the European Court of Justice (ECJ) in Luxembourg which is the highest court of the European Union. Originally, cases could only be taken by one state against another. However, for many decades, individuals have enjoyed the right to complain that a state has violated their ECHR rights. The ECHR itself requires the provision by states of effective national remedies for breach of rights (Article 13). A decision of the ECtHR is not binding in itself nor can it strike down legislation or quash national decisions. However, states agree to abide by ECtHR decisions. The ultimate sanction for serious breach is suspension or expulsion from the CoE (Article 8, Statute of the Council of Europe).The increase in the number of member states of the CoE since 1950 and the dramatic growth in the number of complaints against states has led to increasing delays in considering applications and a significant backlog of cases. The ECtHR has had to reform its internal workings on several occasions, most recently by way of Protocol 14 adopted in 2004.

How well do states comply with the ECHR in practice?

Good question. The CoE's committee of ministers is concerned about how slowly some states comply with judgments. The ECtHR has a well-developed notion of a 'margin of appreciation'. This allows national authorities a level of discretion in adapting the principles of the ECHR to their own circumstances. However, the absolute nature of the prohibition on torture, as confirmed by the ECtHR to override even considerations of national security, has attracted Tony Blair's concern - but neither he nor David Cameron have suggested resignation from the CoE. In 1999, the CoE appointed a commissioner to promote 'education, awareness and respect for human rights'.[2] Since April 2006, this has been Thomas Hammarberg, a Swede.[3]

What is the relationship of the European Union and the ECHR?

The European Union (EU) has affirmed its respect for the ECHR's fundamental freedoms. A serious and persistent breach by a member state could lead to suspension from some of the rights of membership of the EU. The ECJ has decided that the EU does not currently have the legal power to sign the ECHR itself. This would have been remedied had the proposed new constitution for the EU been adopted. The EU has developed its own Charter of Fundamental Rights and Freedoms which goes beyond the ECHR (see JUSTICE own website http://www.eucharter.org).

Where can I get further information?

Council of Europe website: http://www.coe.int/DefaultEN.asp

The ECHR: http://conventions.coe.int/Treaty/en/Treaties/Html/005.htm

History: Brian Simpson, Human Rights and the End of Empire: Britain and the genesis of the European Convention, Oxford University Press, 2001

Good introductory textbook: Keir Starmer, European Human Rights Law: the Human Rights Act 1998 and the European Convention on Human Rights, Legal Action Group, 1999

Briefing: The Human Rights Act 1998

What is the Human Rights Act 1998?

The Human Rights Act 1998 (HRA) incorporates the European Convention on Human Rights (ECHR) into UK law. Although the UK government ratified the ECHR in 1951, UK courts were unable to give effect to rights contained in it until the HRA came into force on 2 October 2000.

Which rights does it protect?

Schedule 1 of the HRA contains the ECHR rights that have effect in UK law:

Article 2 - the right to life
Article 3 - prohibition on torture, inhuman or degrading treatment
Article 4 - prohibition on slavery and forced labour
Article 5 - the right to liberty and security
Article 6 - the right to a fair trial
Article 7 - no punishment without law
Article 8 - the right to respect for private and family life
Article 9 - freedom of thought, conscience and religion
Article 10 - freedom of expression
Article 11 - freedom of assembly and association
Article 12 - the right to marry
Article 14 - prohibition on discrimination

Schedule 1 also contains additional rights which were agreed by member states after the signing of the ECHR: Protocol 1, Article 1 (the right to property), Article 2 (the right to education) and Article 3 (the right to vote); and Protocol 6 (abolishing the death penalty).

Schedule 1 also contains Articles 15 to 18. These do not cover free-standing rights but rather a series of principles relevant to the application of other rights. The most significant of these is Article 15, which sets out the conditions under which the government can impose limitations on rights due to a state of public emergency.

Interestingly, Article 13 (the right to an effective remedy) is not included in Schedule 1. The government has argued that this is unnecessary, because the HRA itself provides the remedy for any breach of ECHR rights.

How does the HRA work?

The HRA gives effect to ECHR rights in 3 ways:

• First, section 3 requires the courts to interpret primary legislation (Acts of Parliament) and secondary legislation (regulations) in a way 'which is compatible with the Convention rights'. In other words, section 3 creates a 'strong rebuttable presumption in favour of an interpretation consistent with Convention rights'.[1]
• Secondly, if the words of the statute or regulation cannot be interpreted in a way that is compatible with ECHR rights (for example, if it is plainly inconsistent with them), then section 4 gives the courts the power to make a declaration of incompatibility against the legislation.
• Thirdly, section 6 makes it unlawful for any public authorities (including all central government departments, crown agencies, local government and the courts) to act in a way that is incompatible with ECHR rights. In effect, section 6 creates a duty on public authorities to respect ECHR rights.

What is the effect of a declaration of incompatibility?

A declaration of incompatibility has no effect on the validity or continuing legal effect or enforcement of legislation. Instead, it serves to draw public and parliamentary attention to a breach of human rights in order that Parliament may have the opportunity to remedy the situation.In many other countries (such as the United States of America) supreme courts enjoy powers under a written constitution to strike down legislation that they consider to violate fundamental rights. When the HRA was being drafted, many were concerned that adopting such a system in the UK would hand over too much power to unelected judges and undermine the supremacy of Parliament. Therefore, the mechanism of the declaration of incompatibility was devised in order to balance both the interests of human rights and parliamentary democracy. Lord Irvine, then Lord Chancellor, predicted that it would:

…deliver a modern reconciliation of the inevitable tension between the democratic right of the majority to exercise power and the democratic need of individual and minorities to have their human rights secured.[2]

Since the HRA came into force, there have been 15 declarations of incompatibility. A further five declarations have been overturned on appeal to the higher courts. In cases such as the Belmarsh case in December 2004, declarations of incompatibility have sometimes proved politically contentious. However, the government has not yet refused to act on a declaration. If it did, it is very likely that any defendant would appeal to the European Court of Human Rights and gain judgment against the government.

How does the HRA affect the making of legislation?

When a bill is introduced into Parliament, the government minister responsible must make a statement as to whether or not it is compatible with the provisions of the ECHR.[3]

The government has said that this process allows members of Parliament and peers to debate the compatibility of legislation with human rights. However, others have criticised the government for failing to make available the reasons why it thinks the bill is compatible, including the legal advice it receives from government lawyers. In any case, a statement by a minister that a bill is compatible is no guarentee that the legislation will not subsequently be found incompatible by a court under section 4.

There is also a special Parliamentary committee, the Joint Committee on Human Rights, which scrutinises bills and produces reports on the human rights issues they raise.

What about the common law protection of human rights?

The passing of the HRA has not affected the operation of the common law nor its ability to provide relief in certain cases. For instance, in the torture judgment in December 2005, the House of Lords ruled that evidence obtained under torture was never admissable in UK courts. In many other cases, the common law presumptions concerning the interpretation of statutes frequently overlap - and in some cases reinforce - the requirements of section 3 HRA.

What is the biggest impact the HRA has had?

The HRA has only been in force since October 2000, so it is perhaps too soon to say. However, in that time, the HRA has already been responsible for ending indefinite detention without trial under the government's Anti-Terrorism Crime and Security Act 2001. It has also been used widely in immigration cases to prevent people from being sent back to countries where they face a real risk of torture, inhuman or degrading treatment.

More generally, the HRA has had a major impact on the field of judicial review. Previously, governmental decisions could only be challenged in a very limited set of circumstances. Under the HRA, the duty of public authorities to act consistently with ECHR rights has meant that they may be subject to court challenge in any case where they fail to have regard to those rights.

What has attracted the greatest controversy?

The way in which the HRA gives the judiciary a duty to protect human rights. David Cameron has indicated that he would like to replace the HRA with a British Bill of Rights.[4] However, he accepts that the UK should remain a signatory to the ECHR and, thus, subject to rulings of its court. It is difficult to see how this contradiction can be reconciled.

Government ministers, by contrast, have expressed concern with the requirements of Article 3 and the prohibition it contains against returning people to countries where they face a risk of torture. In the Chahal case,[5] the European Court of Human Rights held that nobody can be sent back to any country where they face a real risk of torture, even if that person may be a threat to national security. The Prime Minister has argued that the obligation on the court to follow this authority should be loosened.[6] However, it is difficult to see how this might be done. The government is seeking other ways of circumventing this difficulty eg by negotiating 'memoranda of understanding' with states like Algeria (see briefing on terrorism).

What is the greatest disappointment?

The HRA applies to 'public authorities'[7] but this term was deliberately left undefined to allow for judicial construction. Unfortunately, judgments have been somewhat inconsistent and there needs to be more clarity on this point. The Parliamentary Joint Committee on Human Rights published a good analysis of the problem in February 2004.

More generally, the failure of public authorities to improve their services - for example, for older people - with more respect for people's dignity. A new Commission for Equality and Human Rights may improve this by promoting of a human rights culture.

Disappointing too, has been the failure of ministers - except latterly Lord Falconer, the Lord Chancellor - to speak up in defence of the HRA.

Where can I get more information?

The Department of Constitutional Affairs generally, and its review of the HRA and HRA study guide in particular.

Parliamentary Joint Committee on Human Rights

UK human rights NGOs:

• JUSTICE
• Liberty
• British Institute of Human Rights

Good introductory textbook; Keir Starmer, European Human Rights Law: the Human Rights Act 1998 and the European Convention on Human Rights, Legal Action Group, 1999

Commission on Equality and Human Rights

Briefing: Counter-terrorism and human rights

Why is counter-terrorism a human rights issue?

Both terrorism and counter-terrorism are human rights issues.

Terrorism is a human rights issue because it involves deliberate attacks on civilians causing death and serious injury - and so engages the right to life and the right to physical integrity.

Counter-terrorism is a human rights issue because the way that the state responds to the threat of terrorism may involve exceptional measures that depart from long-established legal principles, including fundamental rights.

What is terrorism?

There is no established definition of terrorism under international law. Instead, there is a great deal of debate over which actions are terrorist and which are acts of legitimate resistance against oppressive governments. Regardless of the failure to agree on a broader definition, there is an overwhelming consensus that terrorism involves the use of threat of violence against civilians for a political purpose.

In the UK, the legal definition of terrorism is provided in section 1 of the Terrorism Act 2000. This defines terrorism as the use or threat of action which:

• involves serious violence against a person
• involves serious damage to property
• endangers a person's life
• creates a serious risk to the health or safety of the public; or
• is designed seriously to interfere with or seriously to disrupt an electronic system

in circumstances where:

• the use or threat is designed to influence the government or to intimidate the public or a section of the public; and
• the use or threat is made for the purpose of advancing a political, religious or ideological cause.

The purpose of the definition in section 1 is not to define a crime of terrorism - virtually any terrorist offence is already a violation of existing criminal law, such as incitement, conspiracy to cause explosions or murder. Instead, section 1 acts as a trigger for the use of other counter-terrorism measures. For example, membership of a proscribed terrorist organisation is a criminal offence under section 11 of the Terrorism Act 2000.

What is the main counter-terrorism legislation in the UK?

There are now four main pieces of counter-terrorism legislation: the Terrorism Act 2000, the Anti-Terrorism Crime and Security Act 2001, the Prevention of Terrorism Act 2005, and the Terrorism Act 2006. The Special Immigration Appeals Commission Act 1997 is also relevant to the debate over counter-terrorism powers in the UK.

The Terrorism Act 2000 continues to provide the main framework for counter-terrorism powers in the UK. It contains the main powers for arrest and extended pre-charge detention in terrorism cases as well as the main terrorism offences outside the ordinary criminal law, for example, membership of and support for a proscribed organisation. Ironically it was intended to be a single, comprehensive piece of counter-terrorism legislation intended to replace the patchwork of temporary legislation that had arisen over 30 years of the Northern Ireland conflict.

Each of the subsequent Acts has been a response to a particular event - 9/11, the Belmarsh judgment in December 2004, and the 7/7 attacks.

What was the government's response to 9/11?

In December 2001, Parliament passed the Anti-Terrorism Crime and Security Act 2001 (ATCSA), Part 4 of which allowed the Home Secretary to order the indefinite detention of foreign terrorist suspects who could not be deported on the grounds that they faced a real risk of ill-treatment contrary to Article 3 ECHR. In order to do this, the government derogated from Article 5 under the ECHR.

In addition, the only right of appeal for those detained under Part 4 was by way of the Special Immigration Appeals Commission (SIAC), established by the Special Immigration Appeals Commission Act 1997 following the Chahal judgment of the European Court of Human Rights.[1] Due to the use of sensitive intelligence materials (such as evidence from covert surveillance), the evidence against detainees was partly open (which the detainee would view and which his or her lawyers would be able to challenge), and partly closed (which the detainee and his lawyers would be prohibited from seeing). Instead of being able to challenge the closed evidence, the detainee would be represented by a special advocate who would argue the case on his behalf in the closed proceedings but would not be allowed to communicate with the detainee.

Despite major criticisms of Part 4 from the Newton Committee of Privy Counsellors, appointed to review ATCSA in 2003, the regime of indefinite detention was not ended until the House of Lords' judgment in the Belmarsh case in December 2004 found that it was incompatible with Articles 5 and 14 ECHR.

What are control orders?

Control orders were the government's response to the House of Lords ruling in the Belmarsh case, brought about under the Prevention of Terrorism Act 2005. The 2005 Act allows the Home Secretary to impose control orders on individuals whom he suspects of being involved in terrorism. Unlike indefinite detention, they may be imposed on both UK nationals and foreign nationals, something which allowed the government to lift its derogation under the ECHR. As with indefinite detention, however, any appeal against control orders may involve the use of closed proceedings and special advocates, meaning that someone wishing to challenge a control order may not know all (or any) of the evidence against them.

Control orders may impose a variety of conditions including restrictions on employment, residence, travel, communication and association with others. There are two types of orders: derogating and non-derogating. Derogating orders allow the Home Secretary to impose house arrest, but can only be made in the event that the government derogates once more from the ECHR. Non-derogating orders do not allow the imposition of house arrest but can still involve very sweeping restrictions on personal freedom.

In April 2006, Mr Justice Sullivan made a declaration of incompatibility against the 2005 Act on the basis that the low level of judicial review control order proceedings and the use of closed proceedings violated the right to a fair trial under Article 6 ECHR. In June 2006, the same judge struck down six control orders on the basis that the Home Secretary had no power to impose 18 hour curfews without a derogation from Article 5 ECHR. In August 2006, the Court of Appeal upheld Mr Justice Sullivan's ruling on Article 5 but reversed it in relation to Article 6 (see casenote below).

What was the government's response to 7/7?

The control order system was in place for only a short time when London was struck by terrorist attacks on 7 July 2005. Following the London bombings, the Prime Minister signalled the introduction of further counter-terrorism legislation, as well as a number of non-statutory measures. The key features of the statutory measures was the criminalisation of statements 'encouraging' or 'glorifying' the commission of acts of terrorism, and the proposed extension of the maximum period for pre-charge detention following arrest in terrorism cases from 14 days to 90 days.

The key feature of the non-statutory measures has been a renewed emphasis on deportation of foreign nationals as a counter-terrorism measure. This includes the seeking of diplomatic assurances against Article 3 ECHR ill-treatment and the UK government's intervention in Ramzy v The Netherlands to argue that the prohibition against non-refoulement in cases involving national security is not absolute.

Although the 90 days proposal was defeated, the Terrorism Act 2006 now extends the maximum period of pre-charge detention to 28 days. In addition, it is now a criminal offence for a person to publish statements that encourage, either intentionally or recklessly, the commission of terrorist acts. This includes reference to statements which 'glorify' acts of terrorism.

Where can I get more information?

The Home Office Security Website

The Council of Europe Convention on Prevention of Terrorism

The Joint Committee on Human Rights report on counter-terrorism policy July 2006

Constitutional Affairs Committee report on SIAC and special advocates March 2005

Home Affairs Committee report on terrorism detention powers June 2006

Is legal aid a human right?

Yes, in certain circumstances.

Under Article 6(1) ECHR everyone has the general right is 'to a fair … hearing' in the determination of civil rights and obligations or of any criminal charge. This implies an appropriate degree of 'equality of arms'. In relation to criminal offences, Article 6(3)(c) everyone has the right 'to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require'.

While the UN's International Covenant on Civil and Political Rights relates only to the determination of criminal charges, nevertheless there is a very similar right to free legal assistance.

What is the extent of the obligation in civil cases under the ECHR?

It is limited to 'civil rights and obligations' - a phrase which has attracted considerable caselaw. The essential test is whether the proceedings are decisive for private rights and obligations. So, claims under contract, tort or some investigations into a death by a Coroner may be covered. However, cases relating to deportation, asylum and nationality are not.[1]

In civil cases, the threshold of need is high. A lawyer must be 'indispensable for effective access to court'. But assistance must be more than formal as the intention is not to guarantee rights 'that are theoretical or illusory but … practical and effective'.[2]

The most interesting case on the extent of the obligation in civil cases was that taken by the McLibel 2 who successfully argued that they should have had legal aid in a defamation case brought by McDonalds.[3]

What is the extent of the obligation in criminal cases under the ECHR?

The essential threshold is that the accused can 'participate effectively in a criminal trial'.[4]

In deciding whether a case is criminal (and, therefore, subject to the stronger obligation to provide legal aid), the official domestic classification is only one of three relevant considerations. The others are the nature of the conduct in question and the severity of any penalty.[5] The meaning is said to be 'autonomous' and the court will decide for itself what should be covered.

The 'interests of justice', as decided by the European Court of Human Rights, include the complexity of the case, the ability of the accused to represent him/herself and the seriousness of any sanction.[6] In England and Wales, the 'interests of justice' test was historically represented by the more generous 'Widgery criteria' still incorporated in statute as to be taken into account on a decision to grant legal aid:

(a) whether the individual would … be likely to lose his liberty or livelihood or suffer serious damage to his reputation;
(b) whether the determination of any question … may involve consideration of a substantial question of law;
(c) whether the individual may be unable to understand the proceedings or state his own case;
(d) whether it is in the interests of another person that the individual be represented.[7]

What is the consequence of the human rights obligation on England and Wales?

Legal aid is extremely expensive in a country with an adversarial system of justice where services are largely provided by private practitioners. In 2005-6, expenditure was a total of £2.035bn with £523m on defence in the magistrates courts and police stations and £635m in the Crown Court.[8] Over a four-year period, the government has accepted plans to introduce a cut of 4% in Crown Court costs and to allow no increase in other criminal costs.[9] Understandably, this is controversial among legal aid practitioners.[10]

Where can I get more information?

The Legal Services Commission administers legal aid in England and Wales[11] and the Scottish Legal Aid Board in Scotland.[12] The government provides web-based information on entitlement.[13]

Paper written by Roger Smith, JUSTICE's director, on international legal aid obligations in criminal cases and legal aid and quality are available on the JUSTICE website.[14]

The Open Society Justice Initiative is involved in issues relating to the development of legal aid within a human rights context.[15]

Briefings form an important part of JUSTICE's work. To see all our current work visit the In The News section of our website. Recent work has included:

• a briefing to the House of Lords for report stage on the Police and Justice Bill
• publication of a report on intercept evidence
• a briefing for the House of Commons Home Affairs Committee inquiry into current issues relating to Justice and Home Affairs at EU level
  

R (MB) v Secretary of State for The Home Department [2006] EWCA Civ 1140

Facts:

Under the Prevention of Terrorism Act 2005 (PTA), the Secretary of State is empowered to make control orders that place obligations and restrictions on terrorist suspects. A 'non-derogating control order', one that does not require any derogation from rights under the European Convention on Human Rights, was imposed on MB. Under s2(1) PTA, the Secretary of State can only impose a non-derogating control order if he (a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and (b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make such an order.

Shortly before the imposition of the order, MB had been stopped from boarding a flight to Syria and then one to Yemen. The explanations that he had given for his proposed travel were not considered to be convincing. Under the control order, MB was required for example, to notify the Home Office of any change in his address; report to his local police station each day; surrender his passport; remain in the UK and allow police officers to search his home at any time. These obligations were designed to prevent him from travelling to Iraq to fight against the coalition forces. It was common ground that his Article 8 ECHR (respect for private life) rights had been infringed.

MB sought to challenge the imposition of the control order on the basis that the procedure whereby it was imposed was not compatible with Article 6 ECHR (the right to a fair trial). More particularly, the court's review of the imposition of the control order pursuant to s3 PTA offered him insufficient protection against an unfair hearing. S3 PTA requires the court, in its supervisory role, to consider whether any of the decisions of the Secretary of State in relation to the making of the control order and its content were flawed. In so doing the court is required to apply the principles applicable on an application for judicial review. The court is also required to follow a special procedure, involving closed material and the use of a Special Advocate.

Held:

Lord Phillips CJ, giving the judgment of the Court of Appeal, stressed that Article 6 ECHR is concerned with procedural fairness, not the fairness of substantive law. He found that s3(10) PTA, which states that the function of the court is to determine whether a decision of the Secretary of State's relating to the control order was flawed, cannot be read so as to restrict the court, when addressing a human rights issue, to a consideration of whether, when he made his initial decision, the Secretary of State had reasonable grounds for doing so. In essence, the court should assess the validity of the control order having regard to the position as it is when making its decision. He explained that, even though this intuitively seems contrary to the natural meaning of the provision (was flawed), this reading down of s3(10) PTA is justified for the following reasons:

First, it would be unsatisfactory that the court should have to apply a different approach to reviewing a control order depending upon whether or not it interfered with an ECHR right. Second, if s3(10) PTA is interpreted literally, it will not enable the controlled person to have a fair review of his civil rights as they are at the time that the review is carried out. Third, the Secretary of State is required, by s7 PTA, to keep the decision to impose a control order under review - it is thus a "continuing decision" and developments after the initial decision are relevant. Fourth, this approach accords with ordinary principles of judicial review.

Lord Phillips CJ found the question of whether the use of closed material, material not available to MB and his representatives, was unfair, to be the most troubling aspect of the case. Given that, if an absolute standard of fairness is applied, MB must be informed of all the facts that the Secretary of State contends give rise to this suspicion, the issue is whether Article 6 ECHR requires an absolute standard of fairness to be applied, or whether some derogation from that standard is permissible in the interests of national security. After a survey of the Strasbourg and domestic jurisprudence, he concluded that such a derogation was permissible. The essence of his reasoning was as follows:

If one starts with the premise that the risk of terrorism may justify interference with human rights, it must follow that Article 6 ECHR cannot automatically require disclosure of the evidence of the grounds for suspicion. Were this not so, the Secretary of State would be in the invidious position of choosing between disclosing information which would be damaging to security operations against terrorists, or refraining from imposing restrictions on a terrorist suspect which appear necessary in order to protect members of the public. Further, the use of special advocates and the rules of court provide adequate safeguards.

Comment

In conclusion, the court held that if the PTA is interpreted as set out above, the way in which the control order was imposed on MB was procedurally fair and did not infringe his Article 6 ECHR right.

The PTA was the government's direct response to the decision of the House of Lords decision in A v SSHD [2005] 2 A.C. 68 in which it was held that the way in which government sought to detain foreign suspected terrorists was unlawful. This case is one of the first challenges to the new regime. It remains to be seen whether the PTA will withstand judicial scrutiny in other regards.

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Jennifer Smith

Lord Lester of Herne Hill QC

Dr Adam Sandell

Michael Smyth

Where are you working?

I am working for International Bridges to Justice, a not-for-profit NGO working primarily in Asia. Its mission is to support the development of the criminal justice system of China, Vietnam and Cambodia. We work in partnership, not only with governments but also with academic institutions, lawyers associations and legal aid centres. I am based in Anhui in the south of China.

Would you call yourself a human rights lawyer?

I actually refer to myself as an international criminal defence lawyer because all around the world lawyers have the same concerns and this is a way of making a connection.

Do you see yourself as working in a human rights organisation?

Obviously, I am. But I can see that human rights are a concept that can often be misunderstood. People can develop an idea of what you do before you speak. I prefer to describe actually what we do. We want to work in partnership. International Bridges for Justice calls itself a human rights organisation but the words can have the effect of making people think that you are imposing human rights standards. We want to bring people together and to develop a common understanding of what fair trial, due process and justice mean.

In your training, do you use international human rights norms?

Yes. There are standards of the United Nations and the United States - such as a right to counsel early in the criminal process, the right to trial, the right to be free of pre-trial detention, the right not to be tortured. These are all universal standards which the UN and US standards encompass. Most countries have laws on these - China too. I do try in practice not to emphasise the international aspects of these laws but rather to stress their domestic origin in China. I remember giving a speech in my first week in China to 500 lawyers. I said that I was not here to talk about our norms or UN standards but to emphasise China's own laws. China has the right laws against torture and so on but the problem is that they are not implemented. The audience appreciated that way of putting it.

What work do you do?

I work very closely with Chinese lawyers in the region where I currently am in South China but I travel around the country a lot. We have three objectives:

• first, to raise the quality and scope of legal aid for the poor in China who, as anywhere else in the world, make up the majority of those in the criminal justice system
• second, to work for the implementation of existing laws in practice
• third, to raise awareness among community of the rights of the accused and the importance of legal aid.

What is your background?

I am an American lawyer. I went to Boston College Law School. I was a public defender in Cambridge, Mass for three and a half years and then in New York for a further two.

Why did you choose to work in China?

I worked in a homeless shelter during my degree. I got interested in the people and why they were there. Many were charged with crimes. I got to hear them as individuals rather than defendants. Many felt that their lawyers did not represent them and that the criminal justice system was a machine in which they had been caught up. That made me want to be a lawyer and then to work as a public defender.

I took time out of law school to work in Cambodia - I originally went for the summer but then extended my time. I was very affected by the struggle that people had for their rights. I met a lot of very committed individuals, including Karen Tse. We became very close and we talked a lot about her views as she was founding International Bridges to Justice. She saw a need for work in Asia which at that time was attracting very little attention. I decided after working as a public defender for some years that it was time to go over to China. It has proved a great time to be involved. There is real interest in the issue of improving quality.

Do you see yourself as making a difference?

Yes. A lot of the time, people see making a difference on a large scale. I see it much more incrementally and individually. I hear lawyers saying, 'Wow. For the first time in my life, I have a different view of my role.' Once individual lawyers change then they will work for permanent change in the system.

Do you see yourself as part of an international human rights movement?

Yes - though everyone plays a different role. We are not working against government. We have decided that the best way is to work with government. We bring people together and we try to make everyone feel good about their position and to argue that what they want is better justice.

International Bridges to Justice was formed in 2000 to address the legal needs of Asia's citizens. IBJ works to guarantee all citizens:

• the right to competent legal representation
• the right to be protected from cruel and unusual punishment
• the right to a fair trial

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How did you first become interested in human rights?

I became involved with human rights while at Cambridge in the late 50s as part of the struggle against Apartheid, and then at Harvard Law School in the early 60s and in the Deep South during the long hot summer of 1964 (writing a book for Amnesty International).

When did you first start actively to campaign for some form of legislation on human rights in the UK?

I became actively involved in the UK when called to the Bar in 1964. I helped set up CARD (the Campaign Against Racial Discrimination) and was legal adviser on the lobby for effective legislation to tackle that social evil. I am still campaigning for effective equality legislation.

I first called for the incorporation of the ECHR in 1968 in a Fabian lecture and campaigned to that end for thirty years.

Are you satisfied with what we ultimately got: the Human Rights Act 1998?

I was satisfied with the compromise that is the Human Rights Act [HRA] as a way of reconciling the need for effective remedies for violations of human rights with the doctrine of parliamentary supremacy. But the effectiveness of the HRA depends on the willingness of the government of the day to treat it as no ordinary law. It has become increasingly apparent that senior ministers, including the Prime Minister, do not regard the HRA as a constitutional measure of sufficient priority within our system of law and public administration.

I have concluded that we need a measure like my first Private Member's Bill which gives the courts equivalent powers to those conferred by the European Communities Act 1972, and that a British Bill of Rights - stronger than the ECHR, but building on it - is called for.

What would you assess as the lessons of the HRA's first five years or so in operation?

Senior British judges have interpreted and applied the HRA wisely and carefully without usurping the functions of the other two branches of government. Senior politicians have not accepted the political legitimacy of the HRA in a way that commends it to the public.

The government's failure to create a strong, independent, well-resourced Human Rights Commission during the past nine years has seriously weakened its stated aim of promoting a culture of respect for human rights - as has the PM's and successive Home Secretaries' failure to give strong positive leadership.

Would you accept that there is a 'cultural deficit' in terms of public support for the Act?

There is a cultural deficit.

What do you think should be done about that?

Campaign actively.

What do you think should be the next big development in human rights in the UK?

In addition to the campaign for an effective single Equality Act and Commission for Equality and Human Rights, we need a British Bill of Rights as part of a modern constitutional settlement as advocated by Leslie Scarman more than thirty years ago.

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You are currently a doctor and you want to retrain as a lawyer. That is an interesting switch Why are you making it?

My reasons for doing it are the same as for doing medicine. I think life is unfair but I've begun to realise that I can probably do more about that in the law than in medicine. I don't have delusions that you can change the world as a lawyer but I do see myself as able to do more for people arguing for them than helping them pick up the mess caused when things go wrong that should not need to go wrong.

Where are you practising at the moment?

Newcastle. I work as a GP with a particular interest in refugees and people seeking asylum and I also spend a day a week working in a clinic for people with serious drug problems, the vast majority of whom are familiar with the criminal justice system.

What sort of legal problems do your patients face?

Access to justice in general. Asylum seekers are getting turfed out of the country through a process which is both procedurally and substantively so unjust that it astonishes me that the people who operate it can continue to do so.

Do you seek a specialism?

I would like to do claimant public law and I would particularly like to represent people who are vulnerable and marginalised. I have a sense that the legal profession isn't particularly sensitive to the difficulties that social class can give you. People living in very deprived areas of the country can be virtually excluded from any access to justice.

As a barrister or solicitor?

Barrister.

Why?

My temperament. I think I'm better at short-term, very intense pieces of work for people. I think I am a good advocate. It is because I don't get to do much advocacy in medicine that I am thinking about making the change. As a solicitor, you do just as - if not more - important work at the coalface. But I suspect that I have more personally to offer at the Bar.

You said you want to represent 'vulnerable and marginalised people'. Why?

Because I think these are people whose human rights are most gravely abused, and who have the most to lose as a result. It's a day-to-day experience for people with very few resources, living in the roughest parts of the country, perhaps with mental health problems, drug problems, learning disabilities and, commonly, a lifetime of wretched experiences just one of which would probably be enough to incapacitate me. It's never, by definition, going to be glamorous or prestigious work, and you're punished financially for doing it. But if you are really concerned about people's rights and want to do the work that matters the most, these are the clients of your dreams.

Are you worried about cuts to legal aid funding that might affect your income?

Definitely. But much more worried about people who need legal representation than I am about myself. If I was motivated by income security, I'd stay as a doctor.

Have you had any experience of the practicalities of being a barrister?

I have done a handful of mini-pupillages.

Have you enjoyed them?

I have absolutely loved them. I have met some very inspiring people, both clients and lawyers. I have seen both some very good advocacy and some advocacy that has encouraged me to think that, one day, I could do better.

And they have not shaken your resolve?

No. The number of people that have warned me to think very carefully about the move has caused me to pause. I am, however, in a more secure position than many other people because I have a qualification that I should be able to fall back. I really want to give becoming a lawyer my best shot.

So what is the next step for you?

Application to the BVC and applications for pupillage in the spring.

From what you have seen, what would you identify as the most important difference between the two professions: legal and medical?

We speak differently languages and think in different ways, which drives both professions up the wall when they have to deal with each other. I've been struck by how the proportion of people who go into the law driven by a concern about injustices in the world is smaller that I would have guessed. On the other hand, legal argument is, I think, a technically more taxing and artful skill than is my current job. And I have seen lawyers take their convictions to the logical conclusion and the utmost reach for their clients with a tenacity that I think that the medical profession could learn a lot from. Principles matter.

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I read law at Cambridge. I qualified at Lovells and came to Clifford Chance three years after qualification. I am a litigation lawyer. In that capacity, I first had the opportunity to carry out pro bono, for which I am now responsible. I became a partner here in 1990. I am head of the firm's public policy practice. This, happily, leaves me free to advise across a broad front and areas in which I practice include administrative law, judicial review, government relations and media law - but also human rights in all its manifestations.

You wrote one of the early textbooks on human rights?

Yes. I was able to yoke together my human rights interests with the needs of our corporate clients and wrote a book on 'Business and Human Rights'.

What triggered your interest?

In part, the political. There was a time when, as an active student politician, I did not have much regard for the rule of law. I would have said that the European Convention [on Human Rights] was not the way ahead, with its protection of private interests such as property rights. I have come to accept that the rule of law, underpinned by a commitment to human rights, is at the very foundation of any modern democracy. So, this has been something of a journey for me.

Are you happy with the jurisprudence that has emerged around the Human Rights Act?

Broadly, yes: in one particular respect, no. It is unfortunate that English law is currently in a mess about the definition of public authorities.

What do you think has been the experience of most of your public authority clients with the Act?

Most of the public sector has adapted rather well. Much of the work was done quietly and in advance of the legislation. Importantly, there was a long lead-in time. A lot of important preparation went on under the surface. The response has been much better than, for example, to freedom of information.

How informed about human rights do you find your trainees?

The teaching of law has advanced very much since my time when administrative law was barely covered. I find the young lawyers here very aware of human rights, both in an international and corporate context.

Do lawyers at Clifford Chance encounter human rights issues?

Human rights law in the UK has been institutionalised. It is inconceivable, for example, that you could be a litigator at the top of your game without a thorough knowledge of human rights.

Which Article of the European Convention has had the most effect on your practice?

6. When I started, we were encouraged to know court procedures inside out. There were undoubtedly cases when one could win by taking a procedural point, sometimes very technical. Now a litigator needs to know procedure but opportunities to be successful simply by arguing a technical point alone are much more rare. Fairness is also important. That is a substantial product of the Human Rights Act.

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1. Get involved in JUSTICE's student human rights network

We intend to develop the network as a way of bringing together and encouraging students, trainees and pupils interested in human rights. We will send out three bulletins a year by email at the beginning of each term.

To join or contact us about anything to do with the network:

email jshrn@justice.org.uk

We want to make the network as participatory as possible. If you would like to participate in a virtual advisory committee to help plan the work and activity of the network then also let us know.

2. Come to a network seminar

We are planning a number of seminars on human rights on Saturdays throughout the year at the Guardian's Newsroom. The first will be on Saturday 25 November. We have limited places so book early.

For programme and booking information click here.

3. Talk to us about having a JUSTICE speaker or a human rights event

Please email jshrn@justice.org.uk to discuss further.

4. Support JUSTICE as a student member

For more details email jshrn@justice.org.uk

5. Explore human rights on the web

For JUSTICE's latest detailed submissions on proposed legislation and other political initiatives, consult www.justice.org.uk.

Every issue, we intend to provide an introduction to a number of websites that may be of interest - covering both international and UK concerns.

Human Rights Watch
With Amnesty International, one of the giants in the international human rights world. It has over 200 staff; a turnover of over $25m; headquarters in New York and offices in 14 other cities, including London. Its website is large, very informative with coverage of different themes and countries and it contains links to various external newsfeeds. It provides encouragement, including a logo, for those wishing to 'blog for human rights'. Human Rights Watch has a particularly high focus on the United States, where it is the largest human rights organisation.

Amnesty International
Amnesty International is the other global human rights organisation. It was formed in 1961 by an Englishman, Peter Benenson, who had previously played a part in the foundation of JUSTICE. It has 1.8 million members. It is best known for its capacity to mobilise its membership to write letters to support those imprisoned for political reasons though it now