Conservative attempts to pander to the tabloids by ‘rebalancing privacy with freedom of expression’ miss the legal point

One of the strangest thing about sitting in court is hearing judges who look like old-fashioned grandfathers grappling with the intimate details of sexual encounters. I remember, as a student, the first time I heard a crown court judge running through an unbelievably detailed chronology of how two young people liked to practise “sexual intercourse”, as they insist on calling it, squirming in my seat and wondering why no one else looked freaked out.

Anyone in doubt about the capacity of the civil courts to grapple with the ins and outs (forgive the phrase) of illicit sex could just flick through the judgment in the Max Mosley case. Mosley, “for reasons best known to himself, enjoyed having his bottom shaved” Mr Justice Eady, who judged the case , remarked. Mosley was having so much fun he was “shaking with laughter”, Eady went on, although sadly he couldn’t verify the F1 president’s facial expression because “in the DVD, it was not his face on display”.

There were a few giggles in the audience yesterday when Eady continued in a similar vein at the launch of a new centre for law, justice and journalism at City University. No doubt he is used to encountering more blind rage than laughter in response to some of his views. The specialist privacy judge has become famous for the ire he provokes among tabloids as for his judgments themselves. They accuse him of single-handedly creating a law on privacy, as if it were something he had plucked out of thin air. He says, not surprisingly, that the Human Rights Act did that – with parliament’s assent – by bringing in article 8 of the European convention into the UK’s law. And that tabloids have a vested interest in stunting the growth of privacy because they make a lot of money by routinely violating it.

Eady couldn’t resist a swipe at his tabloid critics last night. And just to make sure Paul Dacre and co are well and truly wound-up, he threw in a quote from Guardian editor Alan Rusbridger, who has yet to fight a privacy case because the Guardian are not in the habit of splashing on sex sessions. Last summer Rusbridger told the select committee on culture, media and sport that privacy law had so far been a problem for the kiss-and-tell business of the tabloids, rather than serious or investigative journalism.

Look closely at the sections of the press most dependent on kiss-and-tell, or its less harmless contemporary equivalents (screw six dominatrix prostitutes and tell, for example) and there is an interesting correlation with vitriol towards the human rights act. The perception that the HRA is responsible for the growth in privacy is one of the major reasons why the Mail and the News of the World are so excited at the prospect of its demise. The Tories are not ones to miss a trick here. The shadow justice secretary Dominic Grieve has lately included “the need to rebalance privacy with freedom of expression” in his list of things the Conservative party would do to “improve” the HRA.

But in the end, it all comes back down to sex. As a specialist judge on privacy, Eady has spent a disproportionate amount of his judicial career dealing with what people think they are doing behind closed doors but in fact end up doing on the front pages of the red-tops.

“Most applications in privacy cases concern sexual shenanigans of one sort or another,” Eady said. The law on privacy is designed to deal with the dilemmas these shenanigans throw up. Where does a paper’s right to freedom of expression give way to a footballer’s right to have extra-marital sex? Where do a golfer’s lucrative commercial contracts provide a valid limit to the rights of the media to report his – if only they could be more original! – extramarital sex.

These are not straightforward questions to answer. Eady insists that they cannot be codified. “No parliamentary draftsman could have dreamt up in advance the facts of the Mosley case – or at least, if he did, he should have been doing it in his own time,” Eady joked.

The point is it is more than likely beyond the imagination of the Conservative party to account for every potential privacy case. To be honest the idea of any stiff-upper-lipped men of advanced years figuring out the circumstances in which sex is private and when it can be splashed by newspapers is less than palatable. But if someone has to do it, at least judges are used to it, even if curious newcomers to court will never stop finding it weird. And so there goes another argument for the Tory bill of rights .

Full Article: http://www.guardian.co.uk/commentisfree/libertycentral/2010/mar/11/conservatives-privacy-freedom-expression

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While British Jews are offered property in the West Bank, Palestinian refugees are still denied the right to return

The yearly drive to encourage British Jews to emigrate to Israel culminated last weekend in the Israel Property Exhibition in a north London synagogue. “Make your dream come true with your own home or investment in Israel,” it urged. Although most of the property for sale is in Israel itself, some is in the occupied Palestinian territories. The Jewish Agency also placed ads in Jewish News and the Jewish Chronicle, which last month included a glossy pamphlet with programmes to “ease and speed up the process of immigration”. Free flights and citizenship within 24 hours were on offer, together with generous financial and social benefits and tax exemptions.

The “community aliyah programme” shown in the pamphlet calls on UK Jews to “start a new life in a vibrant Israeli city” but of these, only three – Haifa, Modiin and Yad Binyamin – are within Israel proper. The other five are Jerusalem (evidently including the illegally annexed eastern part); Ariel , “located in the centre of Israel” (sic); Maaleh Adumim ; Efrat (the capital of Gush Etzion); and the Gush Etzion bloc as a whole, which spreads south of Jerusalem into the heart of the West Bank. On YouTube, a shows a British family leaving their house in the suburbs, piling into their car and setting the sat-nav to “Home”, eventually being raucously welcomed to Israel.

This drive to increase Jewish emigration has accelerated in recent years. One organisations, Nefesh B’Nefesh (“Soul by Soul”), says its core mission “is to revitalise aliyah [migration to Israel] and to substantially increase the number of future olim by removing the financial, professional and logistical obstacles that prevent many individuals from actualising their dreams”. It adds: “We aim to educate and inspire the Jews of the diaspora as to the centrality of the Jewish state to the Jewish people and its desirability as a Jewish home.”

The Jewish Agency is part of the parent World Zionist Organisation. It promotes and manages aliyah to Israel, purchases land in Israel and the West Bank through the Jewish National Fund, and plays a key role in establishing and funding the settlements there. The pamphlet shows the increasing aliyah figures from the UK (853 in 2009, a 37% increase from 2008). In effect, UK citizens are being encouraged to live in Israel and also in illegally-occupied East Jerusalem and the West Bank, whose settlements have been established and enlarged in direct violation of international law.

Although Israel is most keen to welcome Anglo-Saxon Jews from the US and UK, Jews from “lost tribes” such as the Bnei Menashe (Children of Menasseh) in India have also been fast-tracked in to subvert the settlement freeze. Even Peruvian Indians were brought in (provided they converted immediately to Judaism) and sent to West Bank settlements. Jewish people throughout the world have an automatic right to Israeli citizenship under Israel’s “law of return”, though many in the US, UK and now are rejecting this right.

Today there are more than seven million Palestinian refugees around the world. Israel denies their right to return to their homes and land – a right recognised by UN resolution 194, the Geneva convention, and the universal declaration of human rights. Further, “an occupier may not forcibly deport protected persons… or transfer parts of its own civilian population into occupied territory” (article 49).

The Foreign Office emphasises that the UK’s “policy on settlements in the West Bank and East Jerusalem is absolutely clear: Israeli settlements activity is not only illegal under international law, it is also in contravention of Israel’s obligations under the Road Map to Peace and detrimental to the peace process. The prime minister made this point most recently in a letter to Prime Minister Netanyahu of 5 January.”

The Israeli government continues to expand these settlements and encourage immigration in order to consolidate its hold on the occupied territories. The new Jewish-only settlement towns being built by the Jewish National Fund within Israel, in the Negev and Galilee, also continue Palestinian dispossession, by displacing Bedouin in “unrecognised villages”. While Palestinians are being continuously dispossessed, imprisoned in enclaves, and prevented from building to house their families on their own land, Jewish people from any part of the world can be housed anywhere they choose within Israel and West Bank. Precious water resources are used lavishly in the settlements, while drastically limiting Palestinians’ access. Use of the super-highways linking settlements to Israeli cities is denied to Palestinians, and sewage from the settlements is discharged into Palestinian villages and agricultural areas. The settlement freeze is a joke, and is ignored by Israel. It is more a settlement frenzy.

So far, the British government, while issuing protests to the Israeli government, has not taken proper measures, together with the Quartet, that would stop the settlement construction. Arguably, British citizens who settle in Israel may be accessories to a crime if they move to these illegal settlements in the occupied West Bank, contravening the 1977 additional protocol and the International Criminal Court Act 2001, which the UK has ratified. Unless Britain acts firmly to end Israel’s impunity to international law and agreements, hopes of establishing a lasting and just solution for peace in the Middle East will be indefinitely delayed.

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Full Article: http://www.guardian.co.uk/commentisfree/2010/mar/11/israel-return-jews-palestinians

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A toxic combination of inhumane policy and public indifference tragically drives vulnerable refugees beyond despair

Last weekend, three members of a family jumped together to their deaths from a Glasgow tower block . It’s said that they were Russians whose asylum claims had been rejected. However, most deaths among asylum seekers don’t make national news, as is made clear by a report compiled by Harmit Athwal for the Institute for Race Relations in 2006.

Driven to Desperate Measures catalogued the deaths of 213 asylum seekers, refugees and migrant workers who had been murdered in racist attacks or died in accidents since 1989; 57 had killed themselves, and – a little-known, appalling fact – nine of these had set themselves on fire, mostly in public places; and 11 died at their own hands in immigration detention centres or holding centres. But most of the suicides took place in the community, which can be a cold place for fugitives from horrors most of us will never have to face.

I rang Athwal to ask if there had been more suicides since her grim dossier came out. She opened a file and counted up to 39, although this, she said, wasn’t a comprehensive figure. She is the only person keeping count, getting details from asylum seeker and refugee networks, NGOs, charities, campaigners, social workers and local papers.

These three are not the first to commit suicide in Glasgow, but most don’t make headlines. The story of Zekria Mohammed, like the nine immolations, won’t be familiar. The letter telling him to leave his flat prior to deportation was perhaps what tipped this young Afghan dentist over the edge in May 2004. A friend of his, who told me that Mohammed got the letter refusing his asylum appeal shortly before he died, says:

“I hold the Home Office responsible for deaths of so many asylum seekers. People kill themselves in detention and in the community. They make life so difficult for asylum seekers, not allowed to work, to marry, to move house, anything.”

Mohammed lived on the 28th floor of a Glasgow high rise having fled through Uzbekistan and Hungary, where he was arrested and detained for two months. He spent four months in Sangatte , outside Calais in northern France, before making it to Glasgow. His friend picks up the story:

“He was lonely and desperate. He wanted to work – not allowed to work. He left a diary with poetry in it and I could see how fed up he was here, but he couldn’t go back, he had campaigned against the Taliban and the warlords. If you join the warlords, they protect you; but you do that only if you believe in dirty stuff. Campaign against them, you get tortured and killed.”

Mohammed hanged himself in his flat.

We operate a harsh asylum system that allows for little hope, that crushes people. Mostly, we tell ourselves, and are told, that most people seeking asylum are “bogus” and “just” economic migrants. These are largely myths, but we allow these notions to ease our consciences. What is really bogus is the raft of excuses we depend on to eliminate compassion or concern. The quiet voice inside our heads says if these Untermenschen want to set fire to themselves or jump out of high-rise blocks, then that’s up to them: we didn’t invite them to come here, they took their chances – why should we care?

Reading Athwal’s report shows why. The three dead in Glasgow had had financial support withdrawn and faced eviction from their flat. Others have died by their own hand when they thought immigration officers and escorts from privately run agencies had arrived to deport them.

Legislation on asylum is designed to relay the message that the UK is not a comfortable place to be. It caters to the fears of an electorate that sees itself living on a tiny island threatened by alien hordes. This toxic combination of inhumane policy and public ignorance and hostility breeds despair. We should rethink policy and reconstitute it – with compassion, not contempt and fear, as the basis.

Full Article: http://www.guardian.co.uk/commentisfree/libertycentral/2010/mar/10/asylum-blood-refugees-suicide

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Human rights are a political issue, and we should remind politicians we don’t want these to be dealt with by the courts

In the debate about the future of the Human Rights Act (HRA) the power of the home secretary to issue control orders poses significant difficulties for those who favour judicial and parliamentary restraint of executive power.

This series of cases might appear to demonstrate that judicial activism has turned the tide on excessive executive power . However, as Keith Ewing has pointed out, the effect of the control order cases is judicially sanctioned detention for up to 16 hours a day and I have previously argued that the decision in AF secures the unimpressive right that the subject of a control order should be told the “essence of the case against him”.

But, if I am left underwhelmed by the brilliance of the courts, I despair at the inability of parliament to hold this government to account. On 1 March the Commons voted 206 to 85 in favour of renewal of the home secretary’s power to issue control orders. This was despite a report by the joint committee on human rights (JCHR), which expressed “serious concerns” about the control order system and concluding that the “control order regime is no longer sustainable”.

In his 2006 book The Rebels: How Blair Lost His Majority, Philip Cowley establishes that backbench rebellion is actually far more frequent that we might sometimes assume. On that basis, it might have been hoped that, faced with a series of judicial criticisms of control orders and a report for the JCHR condemning the system, parliament might have voted against renewal of the orders – it might have effectively utilised its sunset clause. That did not happen: some familiar faces filed into the Noe’s lobby , but the Aye’s still had it.

The Lords did little better. They renewed the order but did at least express their dissatisfaction by tagging on an amendment stating their regret that the government has not found some other means of dealing with suspected terrorists.

I propose one partial explanation and one potential response to the failure of parliament to adequately secure our liberties.

Ewing argues that “the erosion of liberty has increased not diminished under the ‘culture of liberty’ created by the HRA” – this might be because the existence of an apparently activist judiciary has lulled parliament into a false sense of security. While parliamentary rebellion may be more common than is often thought, there are a number of reasons why parliamentarians may vote in favour of something about which they have serious misgivings – for example, the potential impact on one’s future career if one votes against the government. The belief that the judiciary will prevent executive abuse would provide an easy salve to any uneasy conscience unwilling to vote down a weakened government during an election year.

What we must do is ensure that parliamentarians have the incentive to rebel against their party whips when told to vote in favour of rights infringing measures. We, the electorate, must demonstrate that civil liberties matter to us and that they will matter to us when we vote in the election .

The courts have done their job – over time, they have ameliorated the worst elements of the control order system – but that is not enough. Judicial activism has arguably made things worse by providing apparent judicial approval for the slightly improved, still objectionable, control order system.

To secure our rights we must end the process of juridification – whereby political issues are professionalised and surrendered to the courts to be dealt with. Rights are political: we must remind the courts, our parliamentarians and ourselves of this in the weeks and months ahead.

Full Article: http://www.guardian.co.uk/commentisfree/libertycentral/2010/mar/11/human-rights-political-courts

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