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JUSTICE STUDENT HUMAN RIGHTS NETWORK |
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| EDITION TEN AUTUMN 2009 | ||||
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WELCOME |
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Welcome to the JUSTICE Student Human Rights Network e-bulletin for Autumn 2009 - our tenth edition of this bulletin as we begin the fourth year of the network project. This edition of the bulletin contains briefing notes on the parole system and the Lisbon Treaty, a Q&A on Article 4 of the European Convention on Human Rights and an interview with a barrister working in the field of human rights. The bulletin concludes with a section on ways you can get involved with human rights, with JUSTICE and more widely. JUSTICE is currently advertising for three internship vacancies. We are also running a two day seminar, kindly hosted by Allen & Overy, on Friday 20 and Saturday 21 November - for more information see below. We hope you
enjoy this edition of the JUSTICE Student Human Rights Network e-bulletin
and as ever welcome your feedback - please email jshrn@justice.org.uk
with any comments or questions. |
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| WELCOME - INTRODUCTION - BRIEFINGS - PEOPLE - WHAT CAN YOU DO | ||||
INTRODUCTION |
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From Roger
Smith Welcome to the first electronic bulletin of the new academic year from the JUSTICE Student Human Rights Network - we hope you had a good summer. Welcome back to those of you who have become part of the network over the past three years since we launched, and welcome to those of you who are new to us and who may be new to studying law and human rights as well. We very much hope to continue building on the success of the past three years and will continue to publish an electronic bulletin three times a year. We are also looking forward to future events. We are trying something new this year - our first two-day seminar. The Impact of the Human Rights Act will start on Friday 20 November when we will hold an evening reception with discussions led by Baroness Helena Kennedy QC and myself. Then we invite you back on the following day to consider the theme further in a series of seminar sessions lead by JUSTICE staff. This topical seminar looks at the impact of the Human Rights Act on court proceedings, the legal profession and, in particular, on areas of work in which JUSTICE specialises and is aimed at all students, pupils and trainees with an interest in human rights. For the programme and for booking information click here. |
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If you don't already receive these bulletins directly and have been forwarded this edition, do make sure you are kept up to date with future editions by joining the mailing list. You can do so by emailing jshrn@justice.org.uk. Full details of future events will be added to the website and also emailed to the network. Don't forget you can also read past editions of the JUSTICE Student Human Rights Network electronic bulletin at our website, as well as see details about past events and read JSHRN members' contributions on a variety of human rights issues. Please do
contact us if you have any questions or comments about the network, or
if you are interested in hosting a joint event. Email us at jshrn@justice.org.uk
or telephone 020 7762 6422. |
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| WELCOME - INTRODUCTION - BRIEFINGS - PEOPLE - WHAT CAN YOU DO | ||||
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European
Convention on Human Rights - Article 3 |
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Briefing: European Convention on Human Rights Q & A Article 4: Prohibition of slavery and forced labour What does Article 4 say?
Are there any qualifications, limitations or an ability to derogate? Not from
Article 4(1). Derogations are possible from Article 4(2) and there are
also exemptions in 4(3), namely:
How has slavery been defined? Anti-Slavery International says:
The Council of Europe Convention on Action against Trafficking in Human Beings defines it as:
How long has it been since there was overt slavery in the UK? About 250 years. The famous case of Somersett v Stewart decided that, in the words of Lord Mansfield, slavery is 'so odious that nothing can be suffered to support it' and to whom is attributed the ringing quotation that 'the air of England is too pure for any slave to breathe'.[3] British engagement in the slave trade was abolished by the Slavery Abolition Act 1833. What about covert slavery? Regrettably, it is rife. The UK is at the centre of a thriving market in human trafficking. Women are trafficked for sex. Children and men for cheap labour. Human trafficking was specifically criminalised by section 4 Asylum and Immigration Act 2004 which specifically refers to Article 4. Overwhelmingly, it is women who are estimated to be the victims of trafficking:
What is the UK government doing about human trafficking? It has published an anti-trafficking action plan.[5] It has set up a UK Human Trafficking Centre to act as a liaison point for government agencies.[6] It has signed the Council of Europe Convention on Action Against Trafficking in Human Beings.[7] There are occasional police raids, the largest of which has been Operation Ruby in Leicestershire against forced agricultural workers.[8] What is the difference between slavery and servitude as against forced or compulsory labour? Slavery and
servitude relate primarily to someone's status as an individual rather
than requirements on them to work. Yes. It is covered by one of the exceptions in Article 4(3). The Prison Rules authorise work to be of up to 10 hours a day.[9] Has the UK ever been found to be in breach of Article 4 by the European Court of Human Rights? No. There
have been a number of failed attempts. For example, the Court declined
to find against the UK in a case involving 'boy soldiers' aged 15 and
16 whose parents had consented to their enlistment for nine year contracts.[10]
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Briefing: The parole system of England and Wales What is parole? 'Parole', a word originally meaning 'word of honour', is used in modern-day England and Wales to describe the release of a prisoner on licence by the Parole Board while his or her sentence is still ongoing. 'Conditional' release occurs in circumstances where the sentence is still ongoing and the prisoner can be recalled to prison if licence conditions are broken or if he or she commits a further offence. The decision to release 'lifers' (prisoners serving life sentences) and indeterminate sentence prisoners (those serving sentences of imprisonment for public protection or detention for public protection under ss225-226 Criminal Justice Act 2003) is always taken by the Parole Board. 'Determinate' or fixed-term prisoners sentenced today will be released automatically halfway through their sentence under the Criminal Justice and Immigration Act (CJIA) 2008 (ie those given an eight-year sentence will automatically be released after four years). The Parole Board takes decisions as to the release of certain prisoners sentenced to fixed-term sentences before the 2008 Act came into force. What is the Parole Board? The Parole Board was set up in 1967 to advise the Home Secretary, who was then responsible for the release of prisoners on licence and their recall to prison. Offender management is now the responsibility of the Ministry of Justice. Since 1967 the Parole Board has been transformed from an advisory body, which usually made decisions 'on the papers' about a prisoner, and which did not have the final say as to release, to a judicial body determining the length of time that a large number of prisoners will spend in custody. It holds a large number of oral hearings at which prisoners are present and legally represented, although some decisions are still made 'on the papers', sometimes by a single member of the Board. The vast majority of Board members are part-time. They include judges; psychiatrists; psychologists; probation officers; and independent lay members. The Board has the status of an executive non-departmental public body (NDPB). This means that although it receives its funding from central government (the Ministry of Justice) its day-to-day operations are independent from the Ministry. However, importantly, the Secretary of State for Justice appoints members of the Parole Board and is able to issue guidance to the Board about how it should make its decisions. Why is parole a human rights issue? As can be seen from the description above, the parole system of England and Wales is now determining the length of time spent in custody by a large number of prisoners. As well as those serving life sentences and older determinate sentences, there is a growing number of 'indeterminate sentence' prisoners sentenced under the 'dangerous offenders' provisions of the Criminal Justice Act 2003.[1] The sentence of imprisonment for public protection (IPP) under s226 of this Act has been enthusiastically taken up by sentencers - so much so that the government had to limit its application in the CJIA 2008. Under this sentence the length of time spent in prison is indefinite; after the minimum custodial term or 'tariff' set by the judge expires, the prisoner can only be released if the Parole Board determines that the risk they pose to the public has been sufficiently reduced to do so. They are therefore entitled to regular reviews by the Parole Board of their case. The Parole Board's decisions therefore determine the liberty or continued incarceration of the individual and therefore directly engage the right to liberty under Article 5 European Convention on Human Rights. Article 5 includes certain procedural rights in Article 5(4), which states that: Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. The jurisprudence of the European Court of Human Rights and more recently, of domestic courts under the Human Rights Act 1998, has resulted in major changes to the parole system in England and Wales. These are focused in three areas: the need for the Board to be independent; the need for prisoners to be afforded procedural rights, including oral hearings; and the need to avoid excessive delay in considering cases. Why is parole topical at the moment? The Ministry of Justice is currently consulting on the future of the Parole Board.[2] Options include, amongst others, making it officially a court - part of HM Courts Service - and making it a Tribunal, part of the Tribunals Service. Either option would render the Parole Board a wholly independent, judicial body. There are advantages and disadvantages as to both - one key advantage of the Tribunals Service is that while courts are comprised of judges and/or lay people, tribunals - for example in areas such as mental health - are often multi-disciplinary (judges/lawyers sit with other experts). This would mirror current Parole Board practice and is most suitable for making decisions as to the risk presented by an offender. What does JUSTICE think? JUSTICE believes that the current status of the Parole Board is incompatible with the idea of an independent judicial body making independent decisions about the release of prisoners without government influence. We believe that the Parole Board should become a Parole Tribunal - part of the Tribunals Service. The Secretary of State should not issue guidance to the new tribunal and should not appoint its members - they should be appointed by an independent body such as the Judicial Appointments Commission. We also believe that the Tribunal should have the powers and resources that it needs to make timely and informed decisions as to release, and to afford full procedural rights to prisoners, avoiding the use of 'on the papers' decisions. However, in addition to reform of the parole system we believe that the category of indeterminate sentences for public protection (IPP) and detention for public protection (which, shockingly, applies to children and young people under 18) should be abolished. These sentences have created undue pressure on the parole system and the prisons service, and have serious psychological impact upon offenders. Life sentences should be reserved for sexual and violent offenders who have committed very serious crimes. Where a life sentence cannot be justified, indeterminate sentences are not justified either. Further
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See ss225-229 Criminal Justice Act 2003. |
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http://www.justice.gov.uk/consultations/docs/future-parole-board-consultation.pdf |
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Briefing: The Lisbon Treaty Why is the Lisbon Treaty necessary? The current treaty base to the European Union (EU) has developed between 1958 when the European Economic Community (EEC) was formed and the 2003 Nice Treaty. The founding members of the European Coal and Steel Community (ECSC) comprised of six member states. The 15 member states that approved the Nice Treaty have since allowed accession to a further 17 member states, bringing the Union to a total of 27. The current framework is therefore considered unworkable for the size and diversity of the modern day Union. The Lisbon Treaty (the Treaty) took six years to draft (inclusive of the Constitutional Treaty proposal) and aims to make the Union more efficient, transparent and effective. Under the current treaty base, the three pillar system provides different procedures for the proposal, scrutiny and adoption of law. The number of commissioners needs to shrink to less than the number of member states under the Nice provisions, which will have to be addressed if ratification of Lisbon fails. There is currently a commissioner for each member state following accession of the new states. The European Parliament has co-decision in Community law but not Union law (third Pillar law). The consultation procedure is barely given any recognition by the Council of Ministers who approve the legislative instruments. The presidency of the EU passes each six months, with each new member state taking presidency having only a six month period to rush through their priorities, even more difficult in the July to December period given summer recess. Citizens of the EU overall agree that the major problem with the Union as it currently stands is the democratic deficit - the distance between law making in the EU institutions and the person on the street. What changes will it make? Lisbon grapples
with a lot of the above and creates new policy areas in which it affirms
action will be taken - such as climate change. More specifically it will
do the following:
What stage has the ratification process reached? Out of the 27 Member States, 26 have approved the Treaty. Ireland held its second referendum on 2 October, following the 'No' vote last June, and the Irish public have finally agreed to the Treaty. The German Constitutional Court approved the Treaty last month, Poland's president has said he will sign the Treaty (a necessary process for ratification) if Ireland approves it. The Czech president has announced that he will not now sign the Treaty, until the New Year (with speculation tying this to his eurosceptism and hopes for a UK election; David Cameron has repeatedly stated that he will hold a referendum if the Conservative party comes to power and if the Treaty has not been ratified at that stage). Six members of the Czech senate have just brought a petition in the Czech Constitutional Court for a ruling on whether the provisions of the Lisbon Treaty accord with the Czech constitution. This process is likely to hold the ratification process up until the New Year, even with the issue having priority status. It may be that the focus then turns to the UK as the most eurosceptic member state, with a likely Conservative government following the next election, which will almost certainly be held to its manifesto on a referendum. This is unlikely to be looked on favourably by the other member states given that the UK has already signed the Treaty. Why is it causing so much controversy? The main reason given for non-approval by the Irish public last year was lack of knowledge about what the Treaty would actually do. The 'No' campaign this time round is still pitching the instrument as a constitutional document which will remove sovereignty from the member states and give more power to the EU institutions. Ireland has secured guarantees which will take the form of protocols to the Treaty upon ratification which affirm workers rights (there are concerns that the Irish minimum wage will be reduced), right to life, education and family (the anti-abortion issue) and retention of an Irish commissioner (which is seen as a political necessity to ensure Irish policies are represented in the College of Commissioners who approve proposals for legislation), and neutrality on defence. Ireland has also secured the same package of opt-outs as the UK to the new law making process to JHA policy. If a measure is not in line with national policy, Ireland and the UK can opt out of that instrument to the extent that they see fit. The main problem is explaining what the Treaty actually does, since really it is a set of bureaucratic simplification mechanisms. There has been much hype in the media about the fact that the Treaty will create a super state, particularly with the proposal for a president of the Council of Ministers. What does JUSTICE think? Overall, the Lisbon Treaty will afford greater democratic scrutiny of the EU institutions and not less. Accountability to Strasbourg and law making which accords with the Charter on Fundamental Rights should mean more responsible law making (though infringement of the Charter will not be enforceable in the UK or Poland). The greater scrutiny of legislation at both national and EU parliamentary levels will help to address the democratic deficit, so long as the proposed measures are afforded proper parliamentary time. The EU Scrutiny Committee already carries out this role for the House of Commons and the EU Sub-Committee for the House of Lords in the UK. Notwithstanding, public awareness in the UK of EU law making is minimal. The move to the ordinary legislative procedure in JHA is perhaps a double edged sword. Unanimity was useful to block passage of instruments which did not accord with national policy, the rule of law and fundamental human rights principles, but also blocked measures which were essential (such as procedural safeguards). Majority voting will ensure that legislation is passed which is more representative of the member states. Some countries will lose votes in the adjusted weights (like Ireland) but others will gain votes (like the UK). Hopefully with the scrutiny of national and European parliaments this will favour the rule of law, but measures which may not be considered necessary or appropriate for one member state can no longer be easily blocked (unless you are the UK or Ireland, who can opt out). Once passed, the way JHA law is transposed in the UK will be open to petition to the European Court of Justice, a frustrating omission from the current framework. The Citizen's Initiative may simply pay lip service to the idea of greater say by the public, and in practice is likely to be rarely used. It may prove a helpful tool for interest groups, such as environmental and human rights campaigners however, though it is not clear how the proposed law will fit into the timetable of legislative proposals already progressing at EU level. The newly created offices of President and High Representative should not weald power but simply be spokespersons for policy initiatives agreed by the Council. If this is clearly adhered to there should be no confusion as to their standing in an international arena. The appointment to the position of president must be carefully considered to ensure that they do indeed fulfil this role without expanding their remit and trampling on national sovereignty. Hopefully ratification will prove to the sceptics that there will still remain 27 independent nations following ratification, but we have to get there first. Where can I find more information? The EU website http://europa.eu/lisbon_treaty/index_en.htm Ireland Referendum http://www.lisbontreaty.ie/ The No Campaign http://www.no2lisbon2.com/index.php?option=com_content&view=article&id=3&Itemid=75 European Voice coverage http://www.europeanvoice.com/article/2009/09/-no-to-lisbon-treaty-camp-gaining-ground-in-ireland/65972.aspx |
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Did you study law at university? Brought up in Trinidad, I left behind a place to study law at the University of the West Indies to take up a scholarship to study a BA in Environmental Studies and Geography in the US. A move that might have been regarded frivolous, I was attracted to the idea of travel and the chance to live and study in another country. The course also involved a foreign study programme where I got the opportunity to spend one term studying environmental studies in association with the University of Nairobi in Kenya and another studying geography in association with Karlova University. Why did you return to law? My studies of the environment and geography actually deepened my interest in law. I became particularly interested in the consequences of large-scale regulation and legislation, and the impact of large projects upon people. I also did my Honours Thesis in Discrimination and Affirmative Action. So, although following my BA I worked for a year in Boston as a business consultant, I jumped at the opportunity to come to the UK to study jurisprudence at Oxford when I was awarded a Rhodes Scholarship. Did you hesitate about the choice between barrister and solicitor? I was attracted to the independence of the Bar and the potential when self-employed to be more in control of your work. Although the lines between the two professions have become increasingly blurred, I thought that the Bar had more scope for intellectual stimulation. In reality it has suited my personality and has enabled me to have a broad practice without having to specialise as early as you may be required to do as a solicitor. It is also perhaps more capable of accommodating a move back into academia? That would be the dream: to combine academia and the Bar. However, it is practically unrealistic at the moment. Actually, the beauty of CPD requirements for me is that you have a reason to keep up that academic interest by regularly attending a range of lectures. How did you arrive at One Crown Office Row? From Oxford, I went straight onto the BVC and completed my pupillage at Blackstone Chambers. It was a good experience - very hard work but you would expect it to be. I didn't get offered a tenancy but I did a third six at One Crown Office Row and secured tenancy there. Entering the Bar in England and Wales was initially daunting and during the BVC and pupillage I think I suffered a lack of confidence. However, missing out on tenancy first time round was undoubtedly a good thing for me as it made me realise how much I wanted it, which I think after a good first degree and a successful time on the BVC is one of the most important attributes you need to make it as a barrister. Would that be your advice to students wanting to enter the profession then? Yes, I think that if you really commit yourself to succeeding, then you do have a very good chance of doing well. But you must be completely committed as the Bar is becoming increasingly competitive, both to get pupillage and then to get tenancy. Do you think there is a value in taking up another job or work experience prior to entering the profession? Applicants now have more on their CVs than an undergraduate degree alone. But doing something else first is good for one's personal development anyway. I completed a number of internships along the way to where I am now. One was with the Global Education Forum, through which I was able to attend a UN conference for NGOs whilst I was at Oxford. To gain experience outside of academia and to develop a real, practical interest in the legal issues will help you know for certain it is what you really want to do. How did you become interested in human rights specifically? Initially through my environmental studies but my interest crystallised during the foreign study programme I completed in Kenya as part of my first degree. I would say I am not a pure environmentalist in that I take a different view of the issues from the standard one. I am more concerned with the impact external forces and environmental campaigners have on indigenous groups. Of course, I recognise the increasing importance of protecting the environment and sustainable living, but I am also keen to take into account the rights of indigenous people. Thus while the western idea is to protect the environment, the focus for those in other parts of the world is how the land and environment can be utilised for their livelihood and survival. The experience of seeing this attitude first hand while visiting indigenous groups in Kenya got me thinking about competing rights. Then, I was studying law at the time the Human Rights Act was coming into force. That was an exciting time for human rights in the UK and it was inspiring to be around tutors such as Professor Sandra Fredman who were very involved in the process. Would you like to increase your human rights practice? Of course. My practice currently contains aspects of human rights. For example, inquests will engage the Article 2 right to life, GMC cases will involve the Article 8 right to privacy and immigration and prison cases involve a range of rights including Articles 2, 3, 5, and 8. But I am still waiting for that one big case that centres primarily on a human rights issue. I do think it is unrealistic for those entering the profession to think that you can have a purely human rights practice. Human rights touches upon many areas of law, and so you are more likely to develop a human rights practice alongside public, civil or criminal work. One area you specialise in, understandably given your studies, is environmental law. Is there scope for an overlap between that and human rights? Most environmental cases do not typically involve human rights although noise pollution cases can engage Article 8. There could be scope for an overlap to increase however; Fadeyeva v Russia, a decision of the European Court of Human Rights, may filter down to everyday UK cases. You have also spent six months as a barrister witness in the Robert Hamill Inquiry, what was that like? This involved examining and gathering evidence in the earlier stages of the inquiry. What is interesting about these inquiries in Northern Ireland is that in spite of them, the region is still volatile and there is still a long way to go. It was a good experience for my development as a barrister, but it leads one to question whether these costly inquiries, where practical sanctions are non-existent, are a proportionate response, although certainly they can have great symbolic value. You are on the Council and Executive Board of JUSTICE and are also Chair of the JSHRN, what motivated you to get involved? I was approached to be on JUSTICE Council, and it was something that I had wanted to do for a while. I was involved in JUSTICE around the time that the JSHRN was still being developed as an idea and I wanted to be a part of it because I am interested in potential members of the Bar and the legal profession more generally. I am one of the sponsors at Lincoln's Inn for those contemplating a career at the Bar. This essentially involves mentoring a student who is doing the BVC or who is looking for pupillage and providing support and advice to them as to how to enter the Bar. The Bar can be a lonely place to begin with, especially if you don't have links within the profession, and so it is important to encourage students and create networks so they can meet other like-minded students and practitioners. I am always impressed by the talent and enthusiasm of those members that attend our JSHRN conferences. It is refreshing to meet those for whom human rights is still very much a live issue up for discussion.
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| WELCOME - INTRODUCTION - BRIEFINGS - PEOPLE - WHAT CAN YOU DO | ||||
WHAT YOU CAN DO |
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We are excited to be running our first ever two-day seminar, kindly hosted by Allen & Overy. This will provide maximum opportunity to consider the impact the Human Rights Act 1998 has had on court proceedings, the legal profession and, in particular, on areas of work in which JUSTICE specialises. Join us for an evening seminar on Friday 20 November with discussions led by Baroness Helena Kennedy QC and Roger Smith followed by a drinks reception. Come back the next day (Saturday 20 November) where we will elaborate on the theme in a series of seminar sessions. Click here to download the programme and booking form. Entrance is £5. Please note that places are limited and so booking is essential. Places will be offered on a first come first served basis. A reserve list will be run if necessary. 2. Apply for an internship with JUSTICE. We are now inviting applications for three winter internship vacancies to start in early 2010. In addition to its established summer intern programme, JUSTICE invites applications for a winter research internship for a five week period from early January to the end of February. Successful applicants must commit to working for a minimum of 4 days per week, between 10am - 5pm for at least five weeks. The closing date for applications is 5pm on Thursday 26 November 2009. For more details on how to apply please click here. 3. Write something for the student human rights network. If you would like to have your work on the website please email jshrn@justice.org.uk. We will publish original and interesting pieces relevant to the issues covered by the electronic bulletin. Maximum word limit of articles 1500 words. All work remains the property of the author and does not necessarily reflect Justice's opinion. 4. Join JUSTICE as a student/pupil/trainee member. See http://www.justice.org.uk/supportus/becomemember/index.html for further information. 5. 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. Would you like JUSTICE to provide a speaker for an event? Would you like to have some material on JUSTICE to distribute at your college, university, firm, chambers? To join or
contact us about anything to do with the network: 6. Other issues and events Call
for nominations for Human Rights Awards 2009 |
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do not bear responsibility for the content of external websites |
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| WELCOME - INTRODUCTION - BRIEFINGS - PEOPLE - WHAT CAN YOU DO | ||||