AH (Sudan): unduly critical, unduly harsh

November 14 2007

Today the Lords gave judgment in AH (Sudan), an important asylum case involving a “country guidance” decision from the Asylum and Immigration Tribunal, but specifically on the question of internal relocation: whether it’s reasonable to expect a refugee subject to persecution in Darfur to go elsewhere in Sudan, say to Khartoum – in which case http://www.lependart.com he won’t succeed in an asylum claim here – or whether that’d be unduly harsh.

The AIT initially ruled it’d be reasonable in this case to expect the applicants to move to Khartoum; but in April Free Movement welcomed the Court of Appeal judgment reversing that conclusion, saying it was refreshing, and imposed common sense in this area. Garden Court Chambers said the CA judgment was a dramatic liberalisation of the test that could reopen previously unsuccessful asylum claims.

The Lords were having none of that. They all agreed that the AIT had applied the correct test, in spite of its “infelicitous drafting”, in Lord Brown’s words. Lady Hale said appellate courts should be slow in Cheap Oakleys interfering with the decisions of expert tribunals – and she “could not believe” that the AIT had really misdirected itself in law, making it clear that the test for “undue harshness” remains a stringent one, thus dishing Garden Court’s hopes. Lord Hope thought the applicants and the Court of Appeal had subjected the AIT’s decision to “unduly critical analysis”.

As you were, then, on internal relocation.

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Rights and responsibilities: fisking David Pannick

November 13 2007

I can’t quite believe the extent of my disagreement with David Pannick’s article in today’s Times, the title of which suggests it may be about immigration, but which is actually about the government’s planned “British bill of rights and responsibilities”. Perhaps it’s not simply a cliché to say that I couldn’t disagree with him more. It’s looks as though I’m making a habit of it. But the extent of my disagreement this time makes this post inevitably into a fisk.

Pannick argues that we need such a bill, firstly because it would have a “symbolic and educative function”. Well, those seem to me very bad reasons http://www.lependart.com to have a law – and its pretty clear from what he says later that is is indeed a law that Pannick has in mind and not merely an airy declaration. If symbolism (rather than substantive change) is needed, why isn’t the existing Human Rights Act good enough?

Pannick implies that a fuller public debate about human rights values is needed – more than we got in 1998. But what does he thinks this “debate” would achieve? Widespread agreement? Surely that’s hopelessly optimistic. Agreement, at least by a majority of people, on what our legislation should provide in terms of human rights protection? If that’s his aim, then I think Pannick had better get used to the fact that the public probably don’t want the strong form of human rights incorporation he goes on to advocate in the rest of the article. I think there is actually plentiful public debate on human rights, in pubs and clubs, in Parliament and in the media – but lawyers aren’t really contributing to it because they’re convinced it’s at too low and knockabout a level. Pannick says

There’s a shameful lack of understanding of the content of the Human Rights Act by politicians and the public.

Well, I think that’s a fair statement, but I’m not sure the HRA is really different in that regard from, say, the European Union, or the “Children’s Act” as it’s so often called, or discrimination legislation or the Abortion Act. As in all these areas, politicians and the public do try to get a broad understanding of what’s going on. But some of the most contentious issues – is the Reform Treaty the same as the Constitution; will age discrimination laws mean firms can’t force people to retire? – are difficult to understand without the kind of training many lawyers have and which it’s always going to be Fake Oakleys unreasonable to expect people to undergo. But they’re going to debate the result they see coming from the legislation, vigorously, and I don’t think it’s enough for lawyers (as I think Pannick is doing here) to refuse to count that as a proper debate on the grounds of it being insufficiently enthusiastic about human rights.

Pannick wants a bill of rights to

set out the core values of our society to be taught in schools and to be accepted by anyone wishing to move here

but this worries me. Why should kids be taught about legislation? Maybe if you have a sort of nationally founding text like the US Constitution, teaching kids about is fair enough – it’s part of history. By all means let’s teach kids about Magna Carta, 1688, the Reform Act and the Suffragettes. But teaching kids about Gordon Brown’s latest marvellous bill seems to me far too much like political education. And why should immigrants accept these values? If what Pannick had in mind were merely values like “fair play”, “democracy”, “a free press”, “equality for women” and so on, I’d agree with him. But it’s clear from the article as whole that what he really means is the content of the existing HRA, plus. Why should an immigrant have to accept, say, that there should be a right to protection of property (as guaranteed by the ECHR and the HRA)? Isn’t it acceptable for someone to be a sincere communist, believing that all property is theft? It seems to me that someone believing that and working peacefully and democratically for that principle to be applied, is a perfectly acceptable immigrant fully accepting core British values.

Pannick says the bill would

provide a framework for the resolution of controversial issues of public policy

which is the kind of thing Francesca Klug argues in her book Values for a Godless Age. But I don’t think it would provide such a “framework”, any more than the Human Rights Act does already. How could it? If the public and politicians in effect replace discussion of practical policies (what Popper called “piecemeal social engineering” – getting him in again) with discussion of human rights principles what we end up with is the confused impulse that what care home residents urgently need is the protection of human rights laws – without direct consideration of how those Cheap Oakley principles would bite and what behaviour they’d require of care homes – and neglect of the question of whether the regulatory regime for such homes is good enough and effectively enough policed.

It’s what I call “human rightsism”: a belief that all policy questions should be cast in human rights terms, so that human rights law extends to everything. It borders on seeing human rights as a kind of secular religion (the title of Francesca Klug’s book is a giveaway I think) – and I’m against it. It can also lead to what I call a “ratcheting down” of actual human rights protection if – seeing everything through the human rights lens – politicians and others replace all discussion of , say, whether a proposed mechanism such as trial by judge alone is procedurally fair, with a discussion of whether it satisfies the minimum guarantee of article 6. Anyway, how does thinking about abortion, say, in terms of rights – the right to life of the foetus versus the right to biological self-determination for women – help decide what the content of abortion law should be? How does thinking about rights help decide what to do about binge-drinking? I think human rightsism is a way of thinking developed by some liberals under Thatcherism, when they lost faith in political action and decided legal methods worked better to further political ends. But you can’t, ultimately, replace politics with legal principle.

I’ve not finished yet, I’m afraid. Pannick argues that the bill

would emphasise that human rights law involves a balance between rights and responsibilities

which it undoubtedly does. But I’m impatient with lawyers and politicians reassuringly telling us that human rights law embodies the idea that rights and responsibilities must be balanced – that they require a balancing procedure – while avoiding the hard, nasty, political truth that what actually matters is where, substantively, the balance is struck in the end. It’s this avoidance that enables David Pannick to say – much as the government does – that

Misleading, and sometimes mischievous, newspaper reports have wrongly led people to believe that the Human Rights Act confers entitlements free from obligations to respect the right of others and to contribute to the welfare of society.

But I’m afraid it is neither misleading nor mischievous to say that the Chahal case prevents the UK from deporting people who are a risk to our national security, so long as there’s a substantial risk they might be tortured at home. It’s true. And it shows that under the existing content of the Human Rights Act, respect for other’s rights and contributing to other’s welfare is not, and cannot be, a condition Cheap Replica oakleys of the enjoyment of Convention rights or of a right to remain in this country. So much for Pannick’s contention that

A British bill would identify what the community is entitled to expect of all those who live here.

It wouldn’t, unless it makes changes to the Human Rights Act to deal with problems like that caused by Chahal or raised (however misdirectedly, legally speaking) by the Learco Chindamo case. These dirty, nasty, demotically Daily Mailish arguments are in fact the public debate Pannick says he wants, precisely about “what the community is entitled to expect of all those who live here”.

But what David Pannick actually wants is an extension of individual rights in the HRA – not their further balancing or tempering by responsibility. As well as that, he wants Parliament’s freedom to legislate contrary to Convention rights to be curtailed.

Pannick ends by saying that

One of [the values that bind us together] is that political change is the product of free debate of information and ideas led by democratically elected politicians.

I wholeheartedly agree with that sentiment – but everything else Pannick has argued for runs counter to that principle by suggesting the entrenchment of fixed standards now, and limiting what public and paliamentary debate can achieve.

I support the Human Rights Act, and the Convention: the public should not (as I believe the government is now trying to do) be conned with smoke, bills and talk of content-free “balance” and “responsibility” into believing that the current content of the Human Rights Act is uncontroversial apple pie, and any little worries are myth and nonsense.

The real challenge is to face up to the Act’s real requirements and either justify them, or set about changing them at national or international level.

Today’s London protest

November 10 2007

I’m not long back from attending today’s protest opposite Downing Street. There were a couple of hundred people, mainly Muslim League supporters it seemed, at least judging by the flag and noise quotient, though there were also supporters of Benazir Bhutto and Imran Khan, as well as lawyers and others supporting the lawyers’ protests: “No Puppet Judges!” was one of the banners; others called for restoration of the rule of law, and release of political prisoners. There were a few http://www.lependart.com anti-American slogans mixed in there too, and predictably some far-left activists selling their revolutionary papers – perhaps they think every possible demo, even a nakedly liberal and pro-democracy one like this, is a sales opportunity.

I did catch a brief glancette of Jemima, who’d just delivered the petition to No. 10, but mainly it was standing around for the rule of law as much as standing up for it. I’m glad I went, though. Go, Musharraf, go!

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Lawyers round the world support their Pakistani colleagues

November 10 2007

I’m delighted that representatives of lawyers throughout the world are supporting the protests led by their counterparts against martial law in Pakistan. The American Bar Association and our own Law Society and Bar Council have written to General Musharraf asking for a restoration of the Constitution (here’s Andrew Holroyd’s letter), the French Conseil National des Barreaux has written to the Pakistan Bar Council in support of the rule of law and the German Anwaltverein has expressed its support for Pakistan’s lawyers. Others showing their support are the Canadian Bar Council, the Law Council of Australia and the Commonwealth Lawyers Association.

Andrew Holroyd will also, according to a BBC report http://www.lependart.com I heard this lunchtime, be at today’s demonstration in London. Excellent.

As for what’s going on in Pakistan, I’m pleased Benazir Bhutto is clearly backing the lawyers’ protests, having tried (now she’s been allowed by the government to leave her home) to visit the legitimate Chief Justice – and that Imran Khan got away.

Finally, this story from The News suggests Musharraf is desperately scrambling around trying to recruit Supreme Court judges prepared to do his will.

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Popper on Pakistan

November 7 2007

I can’t go to today’s protest as it turns out, but since I’ve just been reading Popper (see how intellectual this blog is?) I thought I’d share with you some words of his about the choice between democracy and tyranny (from The Open Society and its Enemies, volume 1). They apply brilliantly to Pakistan, which hasn’t always had the best http://www.magliettedacalcioit.com civilian rulers:

“What may be said… to be implied in the adoption of the democratic principle is the conviction that the acceptance of even a bad policy in a democracy (as long as we can work for a peaceful change) is preferable to the submission to a tyranny, however wise or benevolent.”

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Pakistan protest in London, 7 November at 1pm

November 6 2007

In my last post, I missed out a link to Pakistan United – it’s a forum for organising action in support of the protests in Pakistan, and you can register there and Cheap Jerseys find out about the planned London protest tomorrow at 1 o’clock. I guess that’s outside the Pakistani High Commission I’ll let you know if I hear any different. The address is:

35-36 Lowndes Sq,
London, SW1X 9JN

and a facebook event has been created for Monday’s (and I guess tomorrow’s) protest.

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Iftikhar Chaudhry: "rise up and restore the consitution"

November 6 2007

Pakistan’s sacked (twice sacked by Musharraf, if I remember right) Chief Justice Chaudhry has called, according to the BBC, for lawyers and the wider public in Pakistan to rise up to force the restoration of the constitution.

It’s a worrying time, this: no one wants to see violence and chaos. But sometimes you have to take risks in order to fight for what’s right. Musharraf has now clearly crossed the line to despotism, and Pakistan has a clear choice to make. I’m glad that Benazir Bhutto seems to be backing the protests.

I can’t claim deep expertise in Pakistani politics since Jinnah, but you hardly need to be a fellow at Chatham House to know that Pakistan’s been dogged by the excessive http://www.magliettedacalcioit.com influence of the army – Musharraf’s coups have only been the latest in a series of military takeovers, when the army have got fed up of civilian government.

If we’re now seeing the rise of a countervailing institution, committed to democracy and the rule of law, it’ll be a turning point in Pakistan’s history.

2017-03-18T08:31:33+00:00Tags: , |
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