On new human rights, terrorism and a new security industry

On Tuesday, it’s a “new counterterrorism strategy.” On Wednesday it’s a document on a new UK Bill of Right and Responsibilities, that according to the Sunday Times suggests “new entitlements such as rights to good healthcare, education and freedom from poverty ( which) could be added to traditional freedoms such as trial by jury and free speech. The new rights would be offset by responsibilities, such as a duty to look for work in return for receiving benefits or to look after one’s children.” The Rights business is deeply confusing. The supporting article by Justice Minister Michael Wills contains no mention of economic rights. If the Bill does, I’ll eat my hat. And how would the UK Bill dovetail with an NI Bill of Rights with its long list of every new right you ever thought of and some others besides? Answer comes there none.

Labour are eroding rights quicker than they’re extending them Are rights and counterterrorism compatible? Yes, in theory. Protection by the state is a supreme right but it’s a hard balance to strike. Labour’s reputation is to say the least dubious – secret inquests, acquiescence in torture, internment by control order, etc. – and both main parties’ hostility to the Human Rights Act and to some Freedom of Information. And next up, Gordon Brown announces he’s setting up a new kind of security industry that Northern Ireland dismantled a decade ago. Is NI going to get some of it back again? In the Observer, Brown makes his case with NI as his jumping off point to al Qaida.

These brutal acts, so devastating in their impact on the families of those murdered, have led the people and politicians of Northern Ireland to stand as one against any return of the terrorist threat. We should be under no illusion, however, that the biggest security threat to our country and other countries is the murderous agents of hate that work under the banner of al-Qaida…

Of the 80 terrorists now behind bars, half of them pleaded guilty. We know this is hitting terrorists’ morale as well as disrupting more than a dozen plots that could have caused hundreds of deaths.

80 terrorists netted at extra cost rising to £3.5 billion. OK, a major terrorist outrage could cost much more, upfront and directly.

At the national level, we have built the strongest-ever counterterrorist framework, with investment rising from £1bn in 2001 to £3.5bn in 2011. At our borders, we have brought in improved electronic checks, excluded more than 150 people from Britain on national security grounds since 2005 and toughened our approach to refusing entry to extremists.

Some 60,000 civilians, including shop managers and council workers, have been trained to cope with the threat. Pocket patters, more parking naysayers more jobsworths with peaked caps – you can see it all again…

  • Seymour Major

    With respect, I think your blog has two topics (Bill of Rights and Resources for terrorism which) which really merit separate blogs. I will comment on the rights issue.

    The right to an education is already covered by Article 2 of Protocl 1, ECHR

    Having the right to public services embedded in a bill of rights is utterly ridiculous. I totally agree with the criticism of “nanny state” human rights. They are unworkable.

    They are trying to introduce responsibility as part of a balancing-act exercise on whether a human right applies. As one commenter has quite rightly put it, by the very nature of human rights, the individual does not have any responsibility.

    Is the proposal an attempt to bind future governments to spending which they can not afford? The Welfare State is already overstretched. In the end, resources ultimately determine whether or not a person gets state services, not the courts. There is a danger of opening the floodgates to litigation every time somebody does not get what they want.

    They haven’t thought about killing the economy, have they?

    I would prefer it if Political parties in both NI and the UK were to banish any idea of having a bill of rights at all. The Human Rights Act is THE bill of rights and it is working very well. Where are the injustices that a Bill of rights needs to remedy? We do not need to have a further source of rights law.

  • Gregory

    “Where are the injustices that a Bill of rights needs to remedy?”

    I’ve seen ‘Sikh free schools’ in Britain.

    “They also said the bangle would mark her out as different from her peers, putting her at risk of being bullied, and it was suggested that she should carry it in her bag as a compromise.”

    And Polish Catholics put out the door.

    HR don’t work too good in the UK. Everything is a very hard and expensive fight.

    Gregory

  • cjb28

    There is no right to a trial by jury.

    Where did the assumption that such a right exists come from?

  • joeCanuck

    There is no right to a trial by jury.

    There was such a right for serious offences from when King John got his arm severely bent out of kilter by his barons. That changed only fairly recently with the introduction of the Diplock Courts to bypass N.I.’s problem of juries being too terrified to convict people charged with terrorist type offences. Not sure what the present situation is in the rest of the U.K.

  • cjb28

    That was not a right to jury as we know it. It was not a right to a jury by definition today. That is similar to the argument that the Magna Carta introduced a right to a jury, what the Magna Carta spoke of was not a jury.

    I am obviously aware of the Diplock courts, I don’t see the need to point that out as it is irrelevant to this question.

    There is, what I would call, a semi-de facto ability to elect to trial by jury in solemn offences but it is by no means a right. Additionally all summary offences are incapable of being tried by jury, you will have no right to that. There is absolutely nothing the in the law of England and Wales, NI, Scotland or the ECHR that says there is a right to a jury trial.

    Additionally I will point out that 1% of all criminal cases in England and Wales are now decided by trial by jury.

  • joeCanuck

    Pedantic.

  • Lawman

    cjb28,
    Incorrect in parts. The Diplock courts are very relevant to the question, for just one example.

  • cjb28

    Lawman

    Could you point out where I was wrong? I not saying I wasn’t wrong, I’m just interested to know.

  • Lawman

    cjb28,

    From Hutchinson Encyclopedia:(emphasis added)

    Diplock court

    In Northern Ireland, a type of court established in 1972 by the British government under Lord Diplock (1907–1985) to try offences linked with guerrilla violence. The right to jury trial was suspended and the court consisted of a single judge, because potential jurors were allegedly being intimidated and were unwilling to serve. Despite widespread criticism, the Diplock courts continued to operate into the 1990s.

  • Lawman

    Further:(from Wikipedia)
    trial by jury became a pretty explicit right in one of the most influential clauses (Article 39)of Magna Carta, signed by King John.

    English common law and the United States Constitution recognize the right to a jury trial to be a fundamental civil liberty or civil right that allows the accused to choose whether to be judged by judges or a jury of peers. The use of jury trials evolved within common law systems rather than civil law systems. Jury trials are of far less importance (or of no importance) in countries that do not have a common law system.

  • cjb28

    Lawman

    I will respectfully disagree. Your first reference mentioned a right to jury trial but did not say where it comes from. Secondly you referenced from Wikipedia which is wholly inadequate for the law.

    I refer you to Lord Auld’s Review of the criminal courts of England and Wales. http://www.criminal-courts-review.org.uk/ccr-05.htm

    “In England and Wales there is no constitutional or indeed any form of general right to trial by judge and jury, only a general obligation to submit to it in indictable cases. It is often claimed that Magna Carta, traditionally regarded as the foundation of our liberties, established such a right. The claim is incorrect. Certainly, Magna Carta is no basis for jury trial as we know it today.”

    “Quite independently of Magna Carta, there is no legal basis for regarding the claimed ‘right’ to jury trial as a constitutional entitlement, that is an entrenched right overriding all other legal instruments, as in the United States for offences carrying more than six months imprisonment”

    “Nor has it become a right as a result of the incorporation into our law of the European Convention of Human Rights’ Article 6 concept of a fair trial. On the contrary, there are suggestions that in some respects it may contravene that provision.”

    “Originally, the accused had no choice but to be tried by jury in all indictable cases; he still has no choice in indictable only cases. It was only when, in 1855, Parliament began to permit him to opt for summary trial of certain offences which had formerly been triable only on indictment, that he acquired an elective right to jury trial in what developed over the next 150 years into a wide range of ‘either-way’ offences. And, as I have already noted, Parliament has made a number of changes in recent years modifying or removing the right in certain of those offences. The right is claimed “only for a fluctuating class of crimes of intermediate gravity”.”

    I will take Lord Auld’s word over wikipedia.

  • joeCanuck

    cjb28,

    I think a lot of what you seem to claim is actually contradicted by Lord Auld. I believe you are misinterpreting him in your comments.
    Regarding constitutional rights, the UK ,of course,does not have a written constitution as in the USA. That was made clear, I thought, in the stuff I quoted;it was very explicit that this right was based on Common Law.
    I do agree that Wikipedia has many shortcomings but I think it has got the important bits right.
    Also, as noted in my remarks, and by Lord Auld, the concept has evolved over time. As Lord Auld says, there actually was no choice but to have a Judge and Jury prior to 1855.
    Bottom line is that there is a right to a Jury for indictable offences (apart from Diplock, a temporary measure).

    Finally, I think that finishes it for me; I ain’t no lawyer.

  • OC

    Hasn’t the Diplock Courts system been abolished?

    And isn’t the RoI’s Special Criminal Court (Diplock’s older brother) still operating?

    As for as gov’ts and constitutions go, the UK is bound by parliamentary supremacy, whereby any court decision can be overidden by simple legislative majority (which also muddies the separation of powers) rather than a change to the constitution?

    Don’t both the UK and RoI have a separation of powers conflict with a paliamentary system whereby the executive branch are also sitting members of the legislature?

  • cjb28

    joeCanuck

    I’ll make one final point aswell. You say there is a right to jury trial for indictable offences, and you are most likely correct. However unlike other common law (secrecy of jury deliberations) it is not one that is entrenched so far in English law that one could rely on it. The English law has been very careful not to allow a right to jury trials. One may be able to stretch a ‘right’ per se to indicatable offences but it is very much a matter of interpretation and I do not believe such a right exists.

    However this is all very much off topic! But I will maintain my original stance.

  • cjb28

    Just to clarify my own point, by a right to jury in indictable offences I do mean something you can rely on, that does not exist. Trial by jury in indictable offences was always something imposed on you historically.

  • joeCanuck

    Trial by jury in indictable offences was always something imposed on you historically.

    cjb28,
    I made that very point specifically. That was in support of the fact that this right has evolved (it changed in 1855).
    As regards the right to a Jury not being something you can rely on, the fact is that you can rely on it, at this time.
    But that can change by enacting a new law. That’s what happened with Diplock. It’s the same with any situation that relies on the Common Law. Codifying a law can override the prior situation.

    I’m not sure that we’re even really disagreeing.

  • cjb28

    Many indictable offences such as assault, theft etc are classified as either-way offences and you can elect for a jury trial however I believe it is up to the court’s discretion as to whether to allow that.

    Anyway I don’t think we are disagreeing either. We are basically agreed on the whole indictable thing. Beyond that, no right to a jury.

  • joeCanuck

    It has been an interesting discussion.

    Regards,

    Joe