JUSTICE STUDENT HUMAN RIGHTS NETWORK
CONTENTS
WELCOME
Welcome to the 11th edition of the JUSTICE Student Human Rights Network e-bulletin. This edition opens with an editorial from JUSTICE Director, Roger Smith on the subject of a bill of rights.
The bulletin also contains briefings on 'stop and search' under the Terrorism Act 2000 and a bill of rights for Northern Ireland.
This edition concludes with a section on ways you can get involved in human rights - with JUSTICE and more widely - one of which being the JUSTICE summer internship programme. The closing date for applications is 7 May 2010 - more details are available here.
We would also like to invite you to our third annual conference on human rights on Saturday 27 March 2010. Human rights and Criminal Justice is a conference for students, pupil barristers and trainee solicitors and will be hosted by Freshfields Bruckhaus Deringer Last year's conference was a great success, we hope to see you again this year. Please click here for more information.
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 or if you would like to be added to our mailing list to automatically receive this newsletter.
Don't forget you can also read past editions of the JUSTICE Student Human Rights Network electronic bulletin on our website, as well as see details about past events and read network members' contributions on a variety of human rights issues.
INTRODUCTION
Bills of rights
Welcome to the first electronic bulletin of the new year from the JUSTICE Student Human Rights Network. We enter the new year with all three major political parties interested in a new 'British' or UK bill of rights. The Liberal Democrats are the most coherent: they want a bill of rights as part of a written constitution. Labour seem uncertain: the government last year issued a consultation paper outlining possibilities for a bill of rights. It has hurriedly added a return date for responses before the end of February. This suggests that Labour may be contemplating something in their manifesto. The Conservative party says that it is in favour of a bill of rights to replace the Human Rights Act.
Quite what
the Tories have in mind is unclear. The Shadow Secretary of State for
Justice, Dominic Grieve, gave a subtle speech at Middle Temple (30 November
2009) in which he set out the case for maintaining the UK's commitment
to the European Convention on Human Rights but seeking to loosen the mechanisms
by which it applies through the Human Rights Act. While David
Cameron recently announced: 'we'll scrap the Human Rights Act, which
has put our police in the ridiculous position of trying to tackle the
most serious crimes without putting the faces of the most wanted criminals
on posters …'
Unfortunately for Mr Cameron, the Human Rights Act does not stop police putting up wanted posters. Indeed, the country's major police forces have pictures of those most wanted in their area posted on their websites. The Metropolitan Police site, for example, has the pictures and names of the top 12 people wanted in London; allows you to search the most wanted people by London region; has pictures of the top three people wanted by the Flying Squad, the top two people wanted internationally and five other wanted people. The West Midlands police have photographs of the top five people whom they are seeking and the Greater Manchester have photos of their top seven. The European Convention on Human Rights (ECHR) specifically allows the right of privacy to be balanced against other rights and duties. The Human Rights Act does not affect that.
David Cameron
went on to say that the Human Rights Act makes 'it incredibly difficult
for the government to deport people who they know to be a threat'. This
appears to be a reference to the effect of the decision in Chahal v
UK and subsequent cases decided by the European Court of Human Rights.
But, non-UK citizens can be deported in appropriate circumstances. The
UK is bound, however, by its signature of the ECHR and the UN Convention
Against Torture not to deport non-nationals where there is a real risk
that they will be tortured. That is to prevent the effectual connivance
of the UK in torture - something which, as a principle, all previous UK
governments have been willing to accept. The UK government is bound by
the ECHR to implement decisions of the Strasbourg Court to which the UK
is a party: that is irrespective of the Human Rights Act.
The result
is rather intriguing. The Conservative party is pitching itself against
human rights but for civil liberties. But it contains opposing currents
of opinion. The irrepressible Ken Clarke called the idea of hostility
to the ECHR 'zenophobic nonsense'. The party contains a strong tradition
of libertarianism and resistance to overweening state power. Witness David
Davis' resignation from Parliament and successful victor at a by-election
on the subject of his opposition to the government's proposed 42 days
pre-charge detention. In modern times, the government of the day has proved
to be the greatest threat to civil liberties. The constitution of the
United States contains a Bill of Rights specifically to limit the power
of the federal government. So, there are various strands to Conservative
thought and it is to be seen which would be victorious if the party was
in government.
JUSTICE has undertaken a considerable amount work on the issues raised by the proposal for a British bill of rights. We published a major report in 2007; A British Bill of Rights: informing the debate. We held meetings at each of the three major political party conferences last autumn. We will be publishing papers on the impact of such a bill on the devolved jurisdictions and on the minimum terms of any British bill of rights. These are, or soon will be, available on our website.
Human rights
may well figure in debate at the next election. If they do, then this
is an issue which students can get involved in and press their local parliamentary
candidates on. We will try to give you all the help you need.
Best wishes and good luck in 2010.
Roger Smith, Director of JUSTICE
Briefing: Northern Ireland bill of rights
What is this Northern Ireland bill of rights about?
For the last ten years, following the Belfast (Good Friday) Agreement in 1998 - which brought the conflict in Northern Ireland to an end - there has been a debate going on in Northern Ireland about a bill of rights. But to really understand that debate, we need to briefly consider the history of Northern Ireland in this context.
Relevant history of Northern Ireland
The Government of Ireland Act 1920 sought to establish separate Parliaments (and 'home rule' as it was then called) for what was to be called Northern and Southern Ireland within the UK. The 1920 Act applied to Northern Ireland (until 1998) but in what became the Republic of Ireland the 1920 Act was not accepted and never took effect, and it took its separate constitutional path from the United Kingdom. In Northern Ireland the 1920 Act provided for a devolved parliament and government at Stormont and for a separate legal jurisdiction (subject to the House of Lords having ultimate appellate jurisdiction). Nevertheless within Northern Ireland a persistent divide endured between those who wished Northern Ireland to remain part of the United Kingdom (unionists or loyalists), and those who wished it to be separate from the United Kingdom and reunited with the remainder of the island of Ireland (nationalists or republicans). The devolutionary settlement of 1920 continued until the conflict became so severe that Westminster re-assumed all legislative and executive powers in 1972, through the Northern Ireland (Temporary Provisions) Act.
What is the Good Friday Agreement?
The Belfast (Good Friday) Agreement of 1998 (GFA), and subsequent developments over a ten year period, signalled a settlement for Northern Ireland between most categories of unionists/loyalists and nationalists/republicans. The GFA has two aspects - it is a peace agreement between the unionists and republicans, but also is a bilateral treaty between the UK and the Republic of Ireland. The provisions of the GFA were enacted by the UK Parliament in the Northern Ireland Act 1998 (NIA) - the preamble to the NIA states that it is 'for the purpose of implementing' the GFA. Consequently, a 'power sharing' executive (consisting of both unionists and republicans) has been established together with a devolved assembly at Stormont.
A significant component of the GFA and the peace settlement was that the UK would pass legislation for a bill of rights for Northern Ireland. This would follow a process that was to be led by a Northern Ireland Human Rights Commission (NIHRC) that was to be established. The responsibilities of the NIHRC, required by the GFA, include the duty to advise the Secretary of State on the content of a bill of rights for Northern Ireland. The NIHRC should:[1]
… consult and … advise on the scope for defining, in Westminster legislation, rights supplementary to those in the [European Convention on Human Rights] ECHR, to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international instruments and experience. These additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and - taken together with the ECHR - to constitute a Bill of Rights for Northern Ireland.
Section 69(7) NIA reflects this aspect of the GFA and requires the Secretary of State for Northern Ireland to request the NIHRC to provide advice in relation to a possible Bill of Rights for Northern Ireland.
What has the Northern Ireland Human Rights Commission done so far?
The NIHRC produced its report dated 10 December 2008 recommending an extensive and comprehensive bill of rights for Northern Ireland. The report was produced following detailed and lengthy consultation throughout Northern Ireland that involved wide-ranging input from various groups and individuals within Northern Irish society. It recommended that a bill of rights for Northern Ireland should include various rights supplementary to the ECHR.[2] The majority of these extra rights are drawn from international human rights treaties to which the UK is already legally bound. These extra rights include socio-economic rights, children's rights and environmental rights, amongst others. They also propose widening the definitions of a 'public authority' and that of a 'victim', arguing that the definitions under the Human Rights Act (HRA) are too narrow.
The Northern Ireland Office (NIO), the UK government department responsible for Northern Ireland, after considering the recommendations of the NIHRC for a year, published its consultation document on a bill of rights for Northern Ireland on 30 November 2009.[3] It its report, the NIO rejected the majority of the NIHRC's recommendations on the basis that the rights suggested by the NIHRC were not specific to the circumstances of Northern Ireland (as required by the terms of reference), and that as such they might be more appropriately addressed as part of the debate over a UK bill of rights:[4]
the Government's initial assessment is that over half of the rights proposed in the NIHRC's Advice are equally as relevant to the people of England, Scotland and Wales as they are to the people of Northern Ireland and, therefore, fall to be considered in a UK-wide context.
The NIO consultation document focuses on rights which in the government's view 'can be argued to reflect the particular circumstances of Northern Ireland and the principles of mutual respect for the identity and ethos of both communities.'[5] This is essentially limited to rights related to sectarian and community issues.
What would the relationship of a Northern Ireland bill of rights be with any bill of rights for the UK?
The issue of a bill of rights for Northern Ireland has been made more complicated by the recent debate over a bill of rights for the UK. If there was to be a UK bill of rights, what would the relationship of this bill be with any Northern Ireland bill of rights?
A number of possibilities have been suggested, from Northern Ireland having its own bill of rights completely separate from any UK one, through to the Northern Ireland bill of rights forming a chapter in a wider UK bill of rights.
It is important, however, to remember that there has been over ten years of consultation and consideration in Northern Ireland over its bill of rights. As this process is coming to its end, it may be inappropriate to stall it by tying it to the debate taking place at the UK level. There is already a high level of frustration around the Northern Ireland process; were it to be interrupted by a UK bill of rights, it may fuel tension and disappointment. This is particularly so as it is generally regarded that the Northern Ireland bill of rights is a requirement of the GFA.
What's next for the Northern Ireland bill of rights?
Responses
to the NIO consultation are due by 1 March 2010. Many human rights organisations
in Northern Ireland have already made it very clear that they are extremely
disappointed with the government's proposals and its rejection of the
NIHRC's advice. With no legislative time left before the General Election,
it will fall to the next government to pursue the issue.
Further information:
JUSTICE will be responding to the NIO consultation on a bill of rights for Northern Ireland at the end of the month after which the response will be posted on the 'In the News' section of our website - www.justice.org.uk.
Footnotes
| Top |
Briefing: Stop and search under the Terrorism Act 2000
What is stop and search?
'Stop and search' is the general term used to describe the power of police (and occasionally other officials) to search members of the public in various contexts.
For example, section 1 of the Police and Criminal Evidence Act 1984 gives police officers a general power to stop and search any person in a public place whom they reasonably suspect of carrying a specified item, e.g. a weapon, stolen property, or burglary tools.
Similarly, section 23(2) of the Misuse of Drugs Act 1971 allows police to stop and search a person in a public place where they reasonably suspect the person is in possession of a controlled substance.
The power to search members of the public in certain circumstances is not limited to the police. Indeed, there are a number of statutes that confer search powers on public officials in certain contexts: e.g. the powers of customs officials under the Customs and Excise Management Act 1979 or the powers of immigration officials under the Immigration Act 1971. However, most powers of search are limited to some particular situation (e.g. entry at port) or follow upon a particular event (e.g. arrest or detention).
The power of police to stop a person in order to search them is also distinct from the more general power of police to stop a person to ask them questions - something which they may do for a very wide range of purposes.
What is different about stop and search under the Terrorism Act 2000?
In most statutory provisions granting police the power to stop and search, there is a requirement that the police have a reasonable suspicion that the person is in possession of an item of a specified kind (e.g. drugs, a weapon, stolen property).
Under section 44 of the Terrorism Act 2000, however, a senior police officer may authorise a certain zone as one in which vehicles and pedestrians may be stopped and searched without reasonable suspicion. The purpose of section 44 is to enable police to carry out so-called 'intuitive' search for items 'of a kind which could be used in connection with terrorism'. However, section 45(1)(b) explicitly states that the search power may be exercised, 'whether or not the constable has grounds for suspecting the presence of articles of that kind'.
Why is reasonable suspicion so important?
The requirement for police to have reasonable suspicion that a person is carrying a specified item before they carry out a search is a common statutory safeguard to prevent the police from exercising their powers in a way that is arbitrary or discriminatory. The requirement to show reasonable suspicion means that the legality of the search can be challenged subsequently in court: if police are unable to give reasons for their suspicion, or if the reasons are manifestly unsound, then the search will be illegal. For example, it will not be enough for the police merely to say they had a 'gut feeling' that the person may have been carrying a weapon, etc.
The lack of any requirement to show reasonable suspicion was a notorious feature of sections 4 and 6 of the Vagrancy Act 1824 - the so-called 'sus' laws - which permitted police to arrest any persons loitering in a public place on the grounds that they intended to commit an offence. The widespread arbitrary use of the 'sus' laws by police against members of ethnic minorities was a major issue in the late 1970s and early 1980s.[1] The 1981 report by Lord Scarman into the Brixton riots led ultimately to the repeal of these sections.
Why did Parliament allow for stop and search without reasonable suspicion under the 2000 Act then?
The power in section 44 to enable 'intuitive' stops within a specified area was originally meant by Parliament as a short-term counter-terrorism measure in exceptional cases. If, for example, police received a bomb threat targeting St Paul's Cathedral on a particular day, section 44 would enable police to establish a search zone around the cathedral to enable people entering the zone to be automatically searched, without the need for police to formulate reasons in each individual case. MPs and peers were concerned that the requirement to have reasonable suspicion might otherwise inhibit police from carrying out blanket searches where appropriate.
So what went wrong?
Shortly after the 9/11 attacks, the Home Secretary and senior police officers established the practice of making rolling authorisations under section 44 to cover the whole of metropolitan London. The police justified the blanket authorisations on the basis that there was now a generalised threat of terrorism in London, one that was likely to manifest in any large-scale public gathering, and that it would be impractical to make narrower designations (because, for example, the police may not wish to reveal the intelligence that they have concerning threats to a particular site).[2] The extent of the section 44 authorisations only came to light following the Gillan case.
What is the Gillan case?
Kevin Gillan and Pennie Quinton were two members of the public attending a demonstration outside an arms fair in the ExCel Centre in London Docklands in 2003. Both were stopped by police and searched under section 44 of the 2000 Act. They subsequently brought a judicial review of the police for use of the search power, on the basis that they were involved in a peaceful protest, there was no evidence to show any kind of terrorist activity by protestors on the day in question, and that it was an interference with their rights to liberty, respect for privacy, and the right to freedom of expression and assembly.
In March 2006, the House of Lords heard Gillan and Quinton's appeal against the refusal of the lower courts to allow their claim. In his judgment, Lord Bingham said:[3]
It is an old and cherished tradition of our country that everyone should be free to go about their business in the streets of the land, confident that they will not be stopped and searched by the police unless reasonably suspected of having committed a criminal offence. So jealously has this tradition been guarded that it has almost become a constitutional principle. But it is not an absolute rule. There are, and have for some years been, statutory exceptions to it.
However, he and his fellow Law Lords ultimately ruled that section 44 was itself compatible with Convention rights, there were sufficient safeguards against arbitrary use of the power, and that there was no evidence that the section 44 power had been exercised unlawfully. In particular, he considered it:[4]
doubtful whether an ordinary superficial search of the person can be said to show a lack of respect for private life. It is true that 'private life' has been generously construed to embrace wide rights to personal autonomy. But it is clear Convention jurisprudence that intrusions must reach a certain level of seriousness to engage the operation of the Convention, which is, after all, concerned with human rights and fundamental freedoms, and I incline to the view that an ordinary superficial search of the person and an opening of bags, of the kind to which passengers uncomplainingly submit at airports, for example, can scarcely be said to reach that level.
What happened next?
Gillan and Quinton took their complaints to the European Court of Human Rights in Strasbourg. In January 2009, the Court ruled that the searches under section 44 had violated their right to respect for their private life under article 8 of the European Convention on Human Rights (ECHR). In particular, the Court disagreed with the Law Lords conclusion that there were sufficient safeguards against arbitrary exercise of the stop and search power:[5]
in the Court's view, the safeguards provided by domestic law have not been demonstrated to constitute a real curb on the wide powers afforded to the executive so as to offer the individual adequate protection against arbitrary interference.
Among other things, the Court noted that there was no requirement at the authorisation stage 'that the stop and search power be considered 'necessary' and therefore no requirement of any assessment of the proportionality of the measure' (para 80). It was particularly critical of the lack of any check on the discretion of the police officer carrying out the search:[6]
Not only is it unnecessary for him to demonstrate the existence of any reasonable suspicion; he is not required even subjectively to suspect anything about the person stopped and searched. The sole proviso is that the search must be for the purpose of looking for articles which could be used in connection with terrorism, a very wide category which could cover many articles commonly carried by people in the streets. Provided the person concerned is stopped for the purpose of searching for such articles, the police officer does not even have to have grounds for suspecting the presence of such articles.
The Court was also very concerned at the potential for discriminatory effect in the exercise of the powers:[7]
In the Court's view, there is a clear risk of arbitrariness in the grant of such a broad discretion to the police officer. While the present cases do not concern black applicants or those of Asian origin, the risks of the discriminatory use of the powers against such persons is a very real consideration …. The available statistics show that black and Asian persons are disproportionately affected by the powers.
How effective has stop and search been?
Between 2000 and 2008, a total of 108,714 people have been stopped and searched under section 44(2) of the 2000 Act (this covers pedestrian searches - vehicle searches are dealt with separately under section 44(1)).[8]
Of this, 1442 people have been arrested. Of those 1442 people, only 147 people were arrested for a terrorism offence.
Since 2000, nobody has been convicted of a terrorism offence following a search under section 44.
On average, 1 in every 3 people stopped and searched under section 44(2) has been a member of an ethnic minority.
Further reading
Annual
reports of the statutory reviewer of terrorism legislation on the Terrorism
Act 2000
Footnotes
Briefings form an important part of Justice's work. To see all our current
work visit the In
The News section of our website.
WHAT YOU CAN DO
1. Come to our conference!
Human
Rights and Criminal Justice Conference
We will be holding the third annual conference for the JUSTICE Student
Human Rights Network on
Saturday 27 March 2010 from
10am - 5pm at Freshfields Bruckhaus Deringer, London, EC4Y 1HT.
This conference for law students, trainee solicitors and pupil barristers will discuss topical issues in the human rights and criminal justice field. Speakers include Andrew Hall QC of Doughty Street Chambers - widely regarded as a leader in his field of crime with a strong emphasis on civil liberties - and Dan Carey, a solicitor at Public Interest Lawyers and winner of the Peter Duffy Award at the Liberty/JUSTICE Human Rights Awards ceremony 2009.
Tickets for the conference will be £10 (£5 to JUSTICE members)
Click here
for the full programme and booking form. For further information please
email jshrn@justice.org.uk
2. Apply for an internship with JUSTICE.
We are now inviting applications for the summer research internship programme at JUSTICE. The scheme will run from June to September 2010 and interns should be able to commit to at least one month of working four days a week in our London office. For more details and how to apply click here. The deadline for applications is Friday 7 May 2010.
Please note that interns undertake in-depth legal research in a particular area of JUSTICE's work. For this reason we are now seeking applications from law graduates only. This includes people who expect to have completed a law degree or conversion course by the time they start their internship.
The Human
Rights Lawyers Association runs a bursary scheme to assist students who
wish to undertake a human rights internship in the summer of 2010. For
more information click
here.
3. Other issues and events
Amicus Death Penalty Trial Event
Amicus have organised a mock trial in which the death penalty itself is to be indicted for perverting the course of justice. The trial will be presided over by Lord Woolf and Geoffrey Robertson QC, and advocated by 6 King's Bench Walk. Challenging issues such as innocence, racial disparity and deterrence, will be considered through examination of leading experts in the field. Tickets must be booked in advance and are £35 for students. For more information, please click here for the flyer.
Amicus
(Assisting Lawyers for Justice on Death Row) is a charity that strives
to assist in the provision of legal representation for those
awaiting capital trial and punishment in the United States, or any other
country, fights to raise awareness of potential abuses of defendants’
rights. The charity engages in casework, academic research and professional
training. It also runs an internship scheme. Please click
here for more information.
4. 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.
5. Join JUSTICE as a student/pupil/trainee member.
See http://www.justice.org.uk/supportus/becomemember/index.html for further information.
6. Get involved with the JSHRN.
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:
email jshrn@justice.org.uk
You are welcome to use the information in this website but must attribute
the source to JUSTICE in any written work
We
do not bear responsibility for the content of external websites