No Body Scan? No Fly!

It’s sure to cause a storm, but two women have been barred from flying out of the UK for failing to submit to full body scanning:

Two women, one a Muslim, have become the first people to be barred from boarding a flight because they refused to go through a full-body airport scanner.

Manchester airport confirmed today that the women, who were booked to fly to Islamabad with Pakistan International Airlines, were told they could not get on the plane after they refused to be scanned for medical and religious reasons.

The women had been selected at random, said the airport.

The Muslim woman decided to forfeit her ticket and left her luggage at the airport. Her companion also left the airport saying she did not go through the scanner on medical grounds because she had an infection.

The full-body scanners were introduced at Manchester and Heathrow last month after the Christmas Day bombing attempt in Detroit. The £80,000 Rapiscan machines show a clear body outline and have been described by critics as the equivalent of “virtual strip searching”.

While American transport authorities offer passengers a choice between going through the full-body scanner or going through a metal-arch scanner and a physical search, the British government has said that a refusal to go through the body scanner would bar passengers from boarding aircraft.

I’m not sure what to say, other than isn’t this the most blatant violation of Article 2 of Protocol 4 of the European Convention on Human Rights? There has been no debate about the introduction of full body scanners at airports – what advantage do they actually provide, against the level of the real threat we face after using pre-existing technologies, scanners and security procedures? Yet again we’re all presumed to be terrorists unless we prove otherwise. Hopefully a legal challenge will be soon be launched against their introduction, and to indeed to rescue the right of privacy which this government holds in such low regard.

David Cameron’s Ignorance on Human Rights

Some people say there’s no reason to worry about the Tories and their threat to repeal the Human Rights Act. After all they aren’t considering pulling out of the European Convention on Human Rights (which would be a grave development indeed), so surely it’s just a reformulation of rights and responsibilities, the likes of which Jack Straw is already considering? It seems their threat is downright dangerous:

Here’s what he told the Politics Show:

The moment a burglar steps over your threshold, and invades your property, with all the threat that gives to you, your family and your livelihood, I think they leave their human rights outside.

Shadow home secretary Chris Grayling has previously denied that a Tory government would provide householders with a “licence to kill” but Cameron’s words appear to promise just that.

The principled case against this position is that it would, in theory, allow householders to murder and torture burglars and thus endorse mob rule. The pragmatic case against it is that it could actually increase the danger to the public. As Jenni Russell recently argued in the Sunday Times, burglars who are aware that any break-in could result in their death are far more likely to come armed with guns or knives and be prepared to use them first.

It is simply dishonest for large sections of the right to continue to claim that the existing law does not provide individuals with a decent right to self-defence. It recognises that householders may, in extremis, use what appears to be excessive force. More sensible application of the current law (Munir Hussain should have received a suspended sentence), rather than a dangerous new law is needed.

In declaring that burglars “leave their human rights outside” Cameron, a supposedly “liberal conservative”, has adopted the language of the demagogue and the populist. He should retract his comments immediately.

He should indeed. The whole point about human rights is that they are universally applicable to all people at all times, under all circumstances. It’s an ominous sign that the likely next PM doesn’t just not believe in the rule of law, but doesn’t even comprehend human rights. Articles 1-3 of the Universal Declaration of Human Rights reinforce their universal applicability, and it makes you wonder what Cameron wants to replace the Human Rights Act with. A Prime Minister who wilfully conflates rights under domestic criminal law with universal human rights would be a dangerous man indeed.

Fight for the Human Rights Act in 2010!

David Cameron has long trailed his desire to repeal the Human Rights Act upon becoming Prime Minister. Conor Gearty reminds us how important human rights still are and how much of an impact the Act has yet to make:

In our bleak, post-1989 capitalist era they have become (for now) the only way of doing socialism.

When we talk about human rights these days we are often in fact discussing issues – the fight against poverty; the push for greater equality; a decent health system; greater support for developing nations – that were the common vernacular of that now largely extinct species, the international socialist. And when we see “communist” China apparently reject co-operation in Copenhagen, we cannot help but wonder whether the civil and political rights denied by the guns of Tiananmen might have made a difference.

In short, human rights are the answer to many of the seemingly intractable questions with which we are faced. The Human Rights Act has played a part in keeping the flame of universalism flickering, small for sure – but the Conservatives should not be allowed to snuff it out without a least a fight from everybody who thinks of themselves as of the left.

I don’t think the HRA has been responsible for holding the government to account on almost anything, but that doesn’t mean it’s not vitally important. Jack Straw introduced the HRA to use as a prism through which government policy was to be formed; that abundantly clearly has never been the case. But it has provided access to redress under the European Convention on Human Rights (ECHR) through British courts, and the importance of this can’t be overstated. Cameron bleats on about how the ECHR won’t be undone, should he repeal the HRA, that Britain will still be a signatory to it. But the fundamental purpose of the HRA was to enable access to European human rights law for those who couldn’t otherwise afford to get to Strasbourg. Repeal the HRA and a majority of those who need it will be cut off, only to have what will no doubt be an ultra-nationalistic British Bill of Rights and Responsibilities (or was that Straw’s newest authoritarian wheeze?) to fall back on. Will non-British nationals be able to use it? Will Cameron decide human rights are no longer universal, and make them contingent? The signs aren’t good.

We will all have to fight tooth and nail to retain the Human Rights Act, and I hope every right-thinking person I know or who knows me will do so.

Supreme Court Attacks Independent Safeguarding Authority

The UK Supreme Court has spoken out against the Independent Safeguarding Authority’s (ISA) Vetting and Barring Scheme (VBS):

“The widespread concern about the compulsory registration rules for all those having regular contact with children, as proposed by the Government in September 2009, demonstrates that there is a real risk that, unless child protection procedures are proportionate and contain adequate safeguards, they will not merely fall foul of the Convention [on human rights], but they will rebound to the disadvantage of the very group they are designed to shield, and will undermine public confidence in the laudable exercise of protecting the vulnerable,” wrote Lord Neuberger, one of the panel of five judges considering the case.

It’s interesting to see the UK’s supreme legal body agrees that the direction the ISA is going in won’t just end up disadvantaging the vulnerable groups it’s supposed to ’safeguard’, but that it will actually breach the European Convention on Human Rights (ECHR). I really hope Sir Roger Singleton, Ed Balls, anyone with influence over the ISA appreciates the significance of this, but I doubt it.

The ISA must be abolished. Only then can agencies and resources already tasked with protecting children and ‘vulnerable’ adults actually do their jobs properly. It’s reassuring to see that the Supreme Court understands this, but it’ll take more than this ruling to end the agency.

Gary McKinnon Betrayed by High Court

Gary McKinnon’s appeal to the nascent UK Supreme Court against extradition to the United States has already been turned down:

The High Court ruled the case was not of “general public importance” to go to the UK’s highest court.

Glasgow-born Mr McKinnon, 43, of Wood Green, London, is accused of breaking into the US’s military computer system.

Mr McKinnon, who has Asperger’s syndrome, insists he was just seeking evidence of UFOs.

In July he lost a High Court bid to avoid extradition.

Giving the court’s decision on Friday, Lord Justice Stanley Burnton, who heard Mr McKinnon’s latest appeal earlier this year with Mr Justice Wilkie, said extradition was “a lawful and proportionate response” to his alleged offending.

There was no real prospect of him succeeding with his claim under Article 8 of the European Convention of Human Rights that extradition would breach his right to a private and family life.

Nor did the court think, on the evidence it had seen, that he had an arguable case that extradition to the US would result in a breach of his Article 3 right not to be subjected to inhuman or degrading treatment.

What we have is a terrible situation where a man’s rights are being systematically violated by anti-terror legislation, which was never intended for cases such as this, and wasn’t even voted on by Parliament. We have a Home Secretary who admits he could block the extradition but who prefers not to set a precedent for genuine terrorists in the future. We have a High Court which believes that this situation doesn’t count as inhuman or degrading treatment for someone with Asperger’s Syndrome.

The US hasn’t made a case against him because they don’t have to under the 2003 Extradition Act, and the Department of Public Prosecutions itself doesn’t think the case would stand in the US (and that it definitely would not in the UK. So why is Gary McKinnon now forced to try the European Court of Human Rights to prevent this mean-spirited and entirely unnecessary extradition?

The Tories Should Embrace the Human Rights Act

Peter Oborne argues Cameron’s Tories, instead of repealing New Labour’s signature piece of legislation, should embrace it because it fits in with their traditions and ethos:

The rights set out in the act are taken directly from the European convention on human rights, which was signed by the UK in 1951. They were inspired by a Conservative politician, Sir Winston Churchill, and drafted under the guidance of another one, David Maxwell-Fyfe (later Lord Chancellor Kilmuir) in the face of considerable opposition from the Attlee government. The act should thus be regarded as the creation not of New Labour, but of the Conservative party.

Moreover, Conservative critics are wrong to say that the rights of the act are in general socioeconomic entitlements. In fact, they are absolutely fundamental to the British common law tradition. They include the right to life; the prohibition of torture, first enacted by the Long Parliament in 1640; rights to liberty and security of person; the right to a fair trial, which dates back to Magna Carta; the right to respect for private and family life; rights to freedom of expression and religion; and the right to freedom of association. These rights are not radical: they are deeply Conservative.

And finally, the act itself operates in a peculiarly Conservative way. It confers no new right that has not already been long recognised in common law, or to which parliament has not already long committed the UK. Its rights are not inviolable, but can be set aside at will. Where there is an inconsistency of law, it leaves it to parliament to decide how to resolve that inconsistency, and only if it chooses. A more Conservative approach could hardly be conceived.

Jack Straw may have tacked rightwards since the 1998 Act, but the fact remains that the European Convention on Human Rights is enshrined in British law. Repealing it wouldn’t end the ECHR, nor would it end Britain’s human rights obligations under the Convention, but it would mean countless people once again being unable to afford to access their rights. There is no need to repeal the act; the only point of creating a British-only document to replace it would be to restrict human rights on nationalistic grounds. We should all be terrified of the prospect.

The ISA Breaches Offenders’ Human Rights

When I say the Independent Safeguarding Authority (ISA) contravenes the rule of law, this is what I mean. The Human Rights Act 1998, which brings the European Convention on Human Rights (ECHR) into British law clearly states:

Article 7 No punishment without law

1 No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

And yet that’s exactly what the ISA is all about – the ISA is set up to be a judge, jury and executioner for everyone’s employment rights. By its own admission it operates to a lower standard of proof than a criminal court for its Vetting and Barring Scheme (VBS):

Some applicants will be given eight weeks in which to make “representations” against the move to bar them, but those with serious convictions against their names will have no opportunity to do so.

However even those who are allowed to tell their side of the story may struggle to clear their names, as ISA guidance states clearly that it operates to a lower standard of proof than a criminal court.

“Assessing whether something happened on the ‘balance of probabilities’ means, simply, whether it is ‘more likely than not’ that something happened,” the document says.

If an individual’s representations fail and they are barred, they will be unable to work with children or vulnerable adults and face prosecution if they seek jobs in these fields.

They then have three months in which to launch an independent appeal to a body called the Upper Chamber, which will comprise a judge and two “non-legal members”.

However the applicant cannot simply appeal against the decision to bar them, or the subjective opinion of the risk they pose made by the ISA.

Guidance states: “You can only seek permission to appeal against the decision of the ISA on the ground that it made a mistake no any point of law, or in any finding of any fact which it has made and on which the decision was based.”

This could be that it interpreted a law wrongly; made an error in its own procedure; or had no evidence to support its ruling.

The guidance adds that “the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact”.

If this appeal fails, individuals may try to take their legal fight to the Court of Appeal.

But they may have to wait for as long as a decade before they are allowed another chance to challenge the ISA’s ruling – with older applicants facing a longer wait than younger ones.

The guidance states: “A decision to include a person on a list means that they will be barred from the entirety of the workforce affected for a minimum period of one, five or ten years depending on the individual’s age.”

Under-18s will be barred for a year before their cases can be reviewed; 18- to 25 year-olds will have five-year bans and anyone over 25 must wait 10 years. They must prove they no longer pose a danger before they are cleared to work with children [or vulnerable adults - Ed]

In other words even if the justice system hasn’t determined that certain offenders (and this government has created an unprecedented number of those) should be denied the freedom to work with children and/or ‘vulnerable adults’, the ISA, without even using evidence which would be admissible in a court of law, can. It’s a flat-out contravention of the Human Rights Act, with a torturous (and threadbare) right of appeal, and for what benefit? The ISA wouldn’t have detected Vanessa George – how could it? For that matter when its entire operation is based on determining ‘risk’ by means of a graph matrix how will it ever catch people who genuinely pose a risk to vulnerable groups?

The Independent Safeguarding Authority must be abolished.

Johnson Could Save McKinnon But Won’t

Home Secretary Alan Johnson has previously insisted that his hands were tied, that he was legally unable to intervene in the extradition of Gary McKinnon to the US. However in his meeting this week with David Davis, Michael Meacher and Chris Huhne he changed his tune:

“[Johnson] did accept that it would be possible for him to intervene and that it wasn’t unlawful for him to intervene, but claimed the limits of his discretion meant he had to be governed by law and precedents,” said [Meacher's] spokesman. “He was concerned that precedents would be set for terrorists.”

In a blog post on Wednesday, Meacher said Johnson felt his scope for intervention was narrowed by Article 3 of the Convention on Human Rights, which limits interference in extradition to cases where the subject is at real risk of execution, torture, or inhuman or degrading treatment.

The three politicians came away from the meeting feeling that Johnson had been prepared to listen to their case, and that it “wasn’t the end of the road”, Meacher’s spokesman said.

The group of MPs is now trying to meet the US Ambassador to try to get the US government to withdraw extradition proceedings on human rights grounds. The Department of Public Prosecutions believes McKinnon doesn’t have a case to answer in the UK and that the case won’t stand up in a US court; Johnson should use his powers to step in and end this circus. So he believes the precedent would aid terrorists, but I don’t accept for a moment that a UFO-obsessed computer hacker with Asperger’s Syndrome is a legitimate sacrifice to the continuing ‘war on terror’.

Control Orders on the Way Out?

Control orders appear to be on their way out, after becoming victims of their own twisted logic:

Most of the remaining control orders imposed on terror suspects are expected to be revoked following the decision by the home secretary, Alan Johnson, to free a man with Libyan and British nationality after three years under virtual house arrest.

The control order imposed on the man, known only as AF, was withdrawn last week as his lawyers prepared for a court hearing at which Johnson would have been forced to disclose the secret intelligence case against him.

The decision followed a landmark law lords ruling in June that it was unlawful to use “secret evidence” to place restrictions, including a 16-hour curfew, on terror suspects who had never been charged or tried in open court.

The unanimous ruling by nine judges, led by the senior law lord, Lord Phillips of Worth Matravers, opened the way for the 20 suspects on control orders to launch fresh legal challenges demanding to know the nature of the allegations against them.

This abuse of habeas corpus was one of the most disgusting pieces of legislation of the entire New Labour project. It’s a  fundamental tenet of our way of life that you can’t lock anyone up without laying down a charge against them and providing evidence to back up that charge. Yet the state deemed it acceptable to control people’s movements, to inhibit their freedom, to limit their possessions and restrict their ability to communicate because they ‘couldn’t be prosecuted in court’ for fear of ‘revealing secret intelligence’. So they were ‘terror suspects’, so what? Habeas corpus has never been restricted by race, religion, gender or social class; to suggest that the law and judicial system couldn’t cope with certain individuals because of their race, religion or political affiliations was always illogical at best, deeply racist at worst. And refusing even to pass the evidence held against suspects to their lawyers was a huge violation of human rights as laid down by the Universal Declaration and the European Convention on Human Rights. Now the justification of ’secret evidence’ has been thrown out, control orders seem likely to pass into one of the murkiest eras of modern British history. Shami Chakrabarti, the director of Liberty said:

“Whilst some people have been driven quite mad by years of punishment without trial, suspects are allowed to wander through densely populated public spaces and many have disappeared. Those responsible for this policy should be thoroughly ashamed for creating so much injustice for so little security in return.”

Prison Service Violates Transsexual’s Human Rights

Deputy Judge David Elvin QC has quashed Justice Secretary Jack Straw’s ruling that pre-op male-to-female transsexual prisoner ‘A’ should be kept in a male prison. Straw’s ruling had come despite ‘A’’s having been recognised as a woman ‘for all purposes’ three years ago under the Gender Recognition Act 2004. In disagreeing with Straw, the judge said:

“It follows that, so long as the claimant remains within the male prison estate, she is unable to progress towards the surgery which is her objective.”

This “interferes with her personal autonomy in a manner which goes beyond that which imprisonment is intended to do”, he said.

“I declare her continued detention in a male prison is in breach of her rights under Article 8 (right to private and family life) under the European Convention on Human Rights.”

Disgracefully the Prison Service said it was ‘disappointed’ at the ruling. Clearly a disregard for human rights has now crept from the Home Office and its agencies to the Ministry of Justice. But it’s an impressive demonstration that human rights must apply to (and be accessible by) all.

(via Equality and Human Rights Commission)