Politics, surveillance and trust….

ThemistoclesThemistocles grinned; it made me like him. “There you see it – that’s how we do it here. Among you Medes, I’m told, there are many men so honorable that everyone trusts them. We’re not like that at all – we never trust one another. So what we do instead is make sure that each side’s represented, so that every rascal’s got two worse looking over his shoulder.”

Gene Wolfe, Soldier of Arete.

I’ve always liked those words, put into the mouth of Themistocles by Gene Wolfe. Soldier of Arete is one of my favourite books – giving a very different perspective on the Ancient Greeks. Wolfe tries (and for me succeeds) to give a sense of what life might really have been like – not a place of divine nobility or unattainable grace, but a place inhabited by real people. Themistocles was one of the most successful of Athenian generals and politicians – someone around at the early days of what we these days call democracy. Wolfe’s version of Themistocles is a very much a likeable character, and a very grounded one. His view of democracy, of honour and of trust is one that seems both very real and very appropriate even for these days. Honour and trust are all very well, but for things to work well, we always need someone looking over people’s shoulders.

That’s particularly relevant to surveillance. ‘Quis custodiet ipsos custodes?’, to borrow another classical source. Who watches the watchmen? At the Intelligence and Security Committee ’round table’ sessions on Tuesday (about which I wrote here) it was one of the key issues – as were the issues of honour and trust. The first question that Sir Malcolm Rifkind asked at our table was whether we thought the intelligence services acted with ‘good faith’. I understood him to mean, essentially, whether we trusted them. Whether we thought they were honourable people. My answer was that I did think they were acting in good faith – but that that is not enough. I’m not like the Mede with which Themistocles was talking in Soldier of Arete, who thought some people are so honourable that they can be trusted completely. Good faith is a good start, but it’s not nearly enough. Limits on surveillance, controls, balances and strong oversight are still needed, no matter whether the intelligence services are acting in ‘good faith;’, and regardless of whether they are honourable, trustworthy people. Even the most able and honourable people need to be overseen. They make mistakes. They can be misled. They can be confused. They can be given poor information and make inappropriate decisions. And are we sure they are honourable and acting in good faith? It doesn’t matter if almost all of them are – even a single person who isn’t and is given free rein is capable of creating a disaster.

That’s not to say, of course, that trust isn’t important. At a certain level, we have to trust people – human life would be impossible if we didn’t. In things like surveillance, that trust, however, needs to be earned. It needs to be demonstrated that people are worthy of what trust we give them – and right now, after the Snowden revelations, trust in the intelligence services is in a great deal of doubt. It needs to be rebuilt – and that means much more transparency is needed to start with, but also much more understanding. It needs to be made clear that those in authority understand why people are bothered by this. It means that they need take our worries and concerns seriously.

Right now, too, it means that they can’t expect us to take what they tell us on trust. It means there should be a little more humility, a little more of what might be called ‘grace’. The way that the Data Retention and Investigatory Powers Act (DRIP) was steamrollered through parliament this summer showed none of this. The reverse: it showed contempt for people, and a huge amount of disrespect. The whole process, rather than helping to rebuild the trust, to demonstrate the good faith, to show that they are honourable people, reduced that trust, demonstrated bad faith, and suggested that they are far from honourable. And that goes for the ‘honourable members’ of parliament and for the intelligence services who presumably suggested the bill. I say ‘presumably’, because we really don’t know, and never got the chance to find out. Sir Malcolm Rifkind admitted on Tuesday that he didn’t understand RIPA: how many of the MPs who passed DRIP understood what they were passing? My guess is that they ‘trusted’ the people telling them it was needed, and decided that was enough.

Well, for me it wasn’t. Not nearly enough. We need much more – and I’m waiting.

Knights of the ISC Round Table….

Yesterday I took part in the ’round table sessions’ of the Intelligence and Security Committee of Parliament’s ‘Privacy and Security Inquiry’. It was an interesting event – and an enjoyable one, though I hope that doesn’t mean that I’ve already begun the process of being ‘captured’ by the intelligence community. The round table sessions are part of the bigger inquiry – accompanied by public evidence sessions which are continuing through the week.

The whole thing was very informal – I found myself sitting next to Sir Malcolm Rifkind and opposite Lord Lothian around a small, round table, one of three such tables in the room. Yes, the round table sessions really involved round tables. Essentially, we had an hour to chat about whatever issues we felt mattered to the inquiry – we had been invited on the basis of the written evidence we had submitted to the inquiry, back in February this year (mine can be found here). Around the table were an academic computer scientist, what I would call a ‘real’ programmer, a human rights activist, myself, a former lawyer for MI5 and MI6, and the two members of the committee, Sir Malcolm Rifkind and Lord Lothian.

There were some very positive things about the discussion – both Rifkind and Lothian appeared to agree, after some resistance, on the first major point that we tried to argue (primarily myself and Izza Leghtas from Human Rights Watch): that the privacy invasion, and hence the first set of proper controls, need to be at the gathering stage, not the accessing stage for data. That, in practice, less data should be gathered and held, and for shorter periods. Moreover, that there should be judicial involvement at the gathering stage – indeed, David Bickford, former Legal Director for MI5 and MI6, thought judges should be involved far more in the whole process, from beginning to end, following the French model.

As part of that discussion, they really did appear to take on board that there are serious risks involved in just gathering and holding data – and seemed to be listening as we listed them!

Other points of agreement were that RIPA is, basically, an awful mess. Rifkind readily admitted that he really didn’t understand it. What that says for his (and the committee’s) ability to oversee the intelligence services is another matter. The feeling from all concerned was that whatever else happens, the law needs review and it needs to be clearer what it actually does – whether directly in the law or in accompanying guidance. It would be nice to see – but I am not holding my breath.

Three particularly interesting things that came out of our brief discussion – and it was brief, because the hour we had went very fast. The first was that Sir Malcolm Rifkind made a very clear differentiation between the intelligence services and the other groups who can use RIPA. He made the argument that the intelligence services really can’t do you any harm unless you’re one of the ‘bad guys’ – and though this was perilously close to saying ‘if you’ve got nothing to hide’ he did acknowledge that it was not an argument that worked in relation to the police, to local authorities or to the other various bodies that utilise surveillance or gathered data. He seemed to suggest that all of those bodies – including the police – need much tighter controls. In the light of the current issues regarding police access to journalists’ communications data, this makes sense, but again it will be interesting to see whether it really amounts to anything.

The second was that David Bickford made the specific comment that if corporations do all the data gathering, analysis and so forth, then surely the intelligence services should be able to do the same. Why should we place more restrictions on the intelligence services than we do on Google and Facebook? When I suggested that perhaps this means that we should put more restrictions on Google and Facebook rather than less on the intelligence services, he laughed a bit, but did seem to get the point.

The third was that both Lord Lothian and Sir Malcolm Rifkind noted that the Human Rights Act provided protection – and when I teased him about the planned impending doom of the Human Rights Act, Rifkind almost winced, and said that there’s always the ECHR. I got the distinct feeling that Rifkind is not enamoured of Grayling’s plan for human rights, though he was far too diplomatic to say so.

Much more was said, and overall it was a good and fairly robust discussion – we all seemed to be able to say what we wanted, and the two committee members seemed genuinely to be listening. They are, however, politicians – and they were also very aware of the limitations of their own powers, and how hard it is to change things in this field with any speed. They were keenest of all on increasing transparency, and moving to a position where the default position is that information is disclosed, and is made public, rather than the opposite. I hope this happens….

….but I remain cynical about it all. The question of whether what the committee does actually has any impact on what the security and intelligence services do remains unanswered. Is this all just a PR exercise, or is there some more profound change going on? It will take a lot more than a few round table sessions, even with Knights like Sir Malcolm Rifkind, to convince me. However, I found myself just a smidgen less cynical than I was before the session started. Perhaps I’ve been captured after all.

Politics – why can’t we admit mistakes?

Last night and this morning I had a somewhat extended argument on Twitter with someone who I assume is a Lib Dem activist. The argument started off being about my frustration (and even anger) about the passing of the Data Retention and Investigatory Powers Act (DRIP) in those few short days in the summer (see my blog post here – a shabby process for a shady law). I was annoyed, and said so, that the erstwhile champion of privacy, and key behind the defeat of the Snoopers’ Charter, my own MP Julian Huppert, had in effect helped push through the law in double-quick time without any chance for discussion. It was, in my view, a mistake on Julian’s part.

That just started the argument. By suggesting that Julian had made a mistake – and in my view a pretty egregious one – I was, according to my accuser, casting aspersions on Julian’s motivations and integrity. I wasn’t, in my opinion, doing that at all. I respect Julian very much, and know that he has great integrity and that his intentions are good. That doesn’t mean, however, that I don’t think he made a mistake over DRIP. I still do – and I have a feeling that he will come to realise that. I may well be wrong, of course – because even if it was a mistake, we seem to have come to a position in politics where we can’t really admit mistakes. At best, we can make half-hearted apologies, generally apologies that we were ‘misunderstood’. The ‘I’m sorry that you feel that way’ kind of apologies.

Following the Lib Dem conference brings this home in a big way. Nick Clegg’s famous ‘apology’ over tuition fees – immortalised in the Auto-tuned version here – was only an apology for a promise, not really an apology for any action at all. The mistake was the promise, not the real actions. The much bigger actions – the much bigger possible mistakes – are never acknowledged, let alone apologised for. The possibility, in particular, that it might have been a mistake for the Lib Dems to go into coalition with the Tories at all, is so dangerous as to be impossible to mention. And yet it might have been a mistake. Things might have been very different if they had not gone into coalition.

It’s not just the Lib Dems who have this difficulty. There are many, many people within the Labour Party who find it impossible to admit that the invasion of Iraq might have been a mistake. A huge amount of energy is still expended on trying to justify that decision, to ‘prove’ that it wasn’t a mistake. Tony Blair takes every possible opportunity to try to persuade us that way. Many of good people in the Conservative Party will, I have a feeling, find themselves in similar difficulties if they do manage to win the election and they really do push for their ‘British Bill of Rights’ plan. The idea that you can admit a mistake and try to find a better way forward seems to have become politically impossible. At best politicians try to gloss over their previous mistakes, or turn them on their heads.

And yet we all know that we all make mistakes – God knows I’ve made some pretty huge ones in my time – so why is it such a problem to admit them? Why is seen as bad or somehow ‘weak’ to admit that you have doubt, or that you may have made the wrong decision. Isn’t it better to admit it, and then find a way to move on? Trying to cover up mistakes, or deny reality doesn’t help anyone much. Well, that’s my perspective. I might well be wrong about it. I’m wrong about a lot of things and make a lot of mistakes.

Kids and contributions…

Aside from the owls, I found little to be happy about in yesterday’s ‘big’ speech by Ed Miliband, and the IPPR report that it accompanied, ‘The Condition of Britain’. A great deal has already been said and written about it – I don’t want to go over old ground, just to write about two specific aspects that bother me, both for what they say immediately and directly and for what they imply about the underlying thoughts both of the IPPR and of Ed Miliband’s Labour Party. The first is the attitude to young people – specifically 18-21 year olds – and the second is what looks as though it’s supposed to be Ed’s ‘big idea’, the revival of the ‘contributory principle’. To me, both are fundamentally misconceived, and betray an acceptance of the false and damaging Tory ‘striver/scrounger’ dichotomy. What’s more, this is both in the overall message – a message which some of the people behind the report have insisted has been twisted and missed by the reactions of people on twitter and in the media – and in the detail. As instructed, I’ve downloaded and read the report, and I’ve read Ed Miliband’s speech. I’m not reassured. Not one bit.

Doing it for the kids?

Perhaps the most noted part of the report is how it deals with young people. The headline recommendation reads as follows:

“For 18–21-year-olds, existing out-of-work benefits should be
replaced by a youth allowance that provides financial support
conditional on looking for work or completing education,
targeted at those from low-income families”

That’s been taken a number of ways in the media – Job Seekers Allowance for young people being removed is perhaps the most common reactions. That is not, of course, entirely true. It hasn’t been removed, but replaced by something different. The devil, however, is in the detail. There are two key words in the recommendation: ‘conditional’ and ‘targeted’. The first is the compulsion part – effectively, unless the young people take up one of the work programmes or sign up for one of the training schemes, they won’t get the youth allowance. Aside from the complications around the way young people’s lives actually work (see for example this excellent blog post by Kate Belgrave) and the deep reservations many people have about training schemes (will they be run by such estimable organisations as A4e, G4S, Serco etc?) and whether any of this would be any different from the hated coalition workfare programmes, the whole idea of compulsion betrays a belief that, fundamentally, young people are scroungers and layabouts at heart. If we didn’t force them into things, they’d spend all day in bed, watching daytime TV or taking drugs. Sadly, however, that seems to be the general approach of all mainstream political parties these days.

However, when the report is examined in more detail, it gets worse – particularly when the second key word, ‘targeting’ is considered. This is from the section on young people:

“To pay for this expansion of support for young people
in education and training, we propose targeting the youth
allowance on those from lower-income families through
a parental means test. This would involve a presumption
that 18–21-year-olds who are not in employment would be
supported by their parents where this is possible…”

First of all, even bringing in a parental means test is (or rather should be) contentious. It has a number of effects. First of all, it adds bureaucracy and stress to an already stressful situation. Secondly, it is a reminder that many young people will be excluded from the allowance. ‘Targeting’ is a nice word – but when you target, you also exclude.  Will the ‘right’ young people be excluded? It doesn’t just depend on wealth, it depends on ability to work the system, to fill in the forms and find a route through the often impenetrable language.  Thirdly, and most importantly, it makes young people even more dependent than ever on their parents. Want an allowance? You have to put your parents through a humiliating procedure. Add to the equation the presumption that 18-21 year-olds will be supported by their parents, and the reality begins to hit home. This is a policy conceived by people who assume that young people have good and supportive relationships with their parents. Some do. I’m sure those behind the report do. But many don’t. Indeed, difficult relationships between young people and their parents can contribute to problems with getting jobs. For some, the best possible thing is to be able to leave their home at 18, to be independent. Forcing young people to stay in the family home, to be even more of a burden, to get their parents to be means-tested, could well be a recipe for disaster. It’s also patronising and demeaning for the young people – when you’re 20, do you want to be treated as though you’re 12?

Making a contribution…

The other aspect of the report is, for me, even more worrying: the emphasis on the ‘revival of the contributory principle’. The idea is peppered throughout the report, and emphasised in Ed Miliband’s speech. The idea, essentially, appears to be that those who make a contribution deserve to get more out of the system. The deserve more ‘protection’. Section 8.2 of the report is headlined ” STRONGER INCOME PROTECTIONS FOR PEOPLE WHO HAVE CONTRIBUTED TO THE SYSTEM.” The question that immediately arises is what does it mean to contribute to the system? When I look back at my life so far, three periods immediately spring to mind. The first is in my first ‘career’, as an accountant, auditing big financial organisations in the City of London. The second is the year I took off, to be a full-time father after my daughter was born. The third is my time as a ‘mature’ PhD student, researching into internet privacy. In which of those three did I make the best contribution to society? Working as an accountant, being a father, or doing what was then pretty pioneering research into a subject of huge current interest?

In the terms of this report, only the work as an accountant would ‘count’ – though in my mind, with hindsight, it was the period in which I made the least contribution to society. In the report’s terms, ‘contribution’ means contributing to National Insurance. Nothing more. We’re defined as economic units in GB plc. Other contributions – from child-rearing to caring for ill or disabled relatives, from studying to volunteering to many, many other things – are not considered at all. They may be paid a little lip-service here and there, but they’re not rewarded. And it must be remembered that for every reward, in these cash-strapped times, someone else goes without. What’s more, there are a great many people who can’t make a contribution on these terms, through no fault of their own. People with disabilities, people living in areas where there is no work, people trying to keep dysfunctional families together and so forth. Young people, in particular, having already been slammed directly and slammed still further – how can you have made a ‘contribution’ when you’re only just entering the workforce?

The message here is simple and direct: ‘workers’ are valued (and only for their work), anyone else isn’t. It drives home the damaging and false ‘striver vs scrounger’ agenda. If you ‘strive’ you’re good, and will be rewarded. If you don’t, you won’t.

A sad consensus

What makes me saddest is that this isn’t just Labour. Indeed, despite everything I’ve said, Labour are still probably not quite as bad as the Lib Dems or the Tories. There’s a consensus here that seems almost unstoppable. I can’t see how it can be changed – either for the Labour Party or for the country. The consequences are painful and divisive, and likely to get worse. Ah well. At least we get owls. A shame we don’t seem to have their wisdom.

Owl statue







UKIP and the reality of Britain

The revelation yesterday that UKIP had employed Latvians to deliver the very leaflets that warned people that their jobs were under threat from Eastern Europeans was greeted with amusement and some surprise – but it really shouldn’t have been surprising. This is the same campaign that had posters starring an Irish actor, displayed on billboards owned and run by a French company. This is the reality of modern Britain – and a reality that should be celebrated rather than feared. We’re a country where people of all kinds of origins work well together and, in general, get along pretty well together too. What’s more, it’s not just modern Britain, but Britain throughout the ages. In a lot of ways, for me, it’s the best thing about Britain.

UKIP should really realise this. A quick glance at the names of their leaders should give them the clue. As well as having a German wife, Nigel Farage has a French name – or perhaps a Belgian one. Roger Helmer, the MEP who is now their candidate for the Newark by-election, has a name that comes from southern Germany. No prizes for guessing the origin of the name of their Director of Communications, Patrick O’Flynn. It’s a regular (Swedish) Smorgasbord of national origins at UKIP.

UKIP’s logo also demonstrates their original mission – to save the pound. That’s the pound ‘sterling’. The word sterling is short for ‘Easterling’, the nickname given to the representatives of the Hanseatic League, a powerful group of German merchant towns in the late middle ages: even our currency is originally German. Our language, too, is a hotchpotch of others, mixing Old English, Latin, French, German and others. We might eat pork (French) that comes from a pig (Old English) or a swine (German), with apple (German) sauce (French) and potatoes (Haitian Carib via Spanish). That’s if we’re not eating chicken tikka masala…

The further back you go, the clearer it becomes. Pretty much every Royal House we’ve had comes from Europe. The Normans (French), Plantagenets (French), Tudors (Welsh), Stuarts (Scots), William of Orange (Dutch), Hanovers (German) were all from outside England – and Saxe-Coburg-Gotha (German) only became Windsor for presentational purposes. One of our ‘greatest’ kings, Richard Coeur de Lion, didn’t speak a word of English and much preferred to be in France. St George, the Roman/Palestinian mercenary  we share (like so much else of our culture and history) as patron saint with a wide number of other countries, from Georgia to Lithuania, Moldova, Montenegro and Palestine. Britain has been swept by waves of immigrants as far back as we can record. Celts, Romans, Angles, Saxons, Jutes and Danes were just the start – the likes of the Lombards and the Huguenots more recent examples. In every age we have been mixing cultures with people from all over the world.

That’s the bottom line. Our culture and history, as well as our present day, is one based on immigration and the joining, merging, mixing and enjoying of different cultures and peoples. It has always been that way – and that’s something we should understand and celebrate. We shouldn’t be trying to invent some ‘pure’ past or mythical identity of Britishness that is separate from everything else. We’re not separate. It’s the mix that makes us what we are – and the continuous changing and developing of that mix. Immigration doesn’t threaten some pure culture – because that pure culture doesn’t exist and never has. Our culture is one of immigration, and always has been. That’s the reality of Britain.

Guest Post: Rights of Academics and Prisoners

Guest post by  @Super__Cyan

On May 4th (be with you), the Independent reported that sources suggest that Chris Grayling, the Secretary of State for Justice, is blocking the work of the first ever independent inquiry into the extent of rape and sexual assault in Britain’s prisons.

The Commission on Sex in Prison (the Commission) was set up by the Howard League for Penal Reform and is made up of academics, former prison governors and health experts. Their aim is to focus on three broad themes: consensual sex in prison, coercive sex in prison, and healthy sexual development among young people in prison.

Apparently this inquiry was fine by Ken Clarke (the former Justice Secretary) but not so welcomed by Chris Grayling. It may not come as a surprise that this may well be incompatible with certain rights under the European Convention on Human Rights (ECHR).

Rights of the academics

The most obvious relevant ECHR provision is Article 10, which states that:

  1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
  2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

This is taken to encompass an academic freedom standpoint. Therefore Article 10 protects academic freedom. Receiving information with regards to the function of the Commission would be information gathered from research, and imparting would be the publication of findings and conclusions. The Parliamentary Assembly of the Council of Europe, in its Recommendation 1762 (2006), adopted the following declaration for the protection of academic freedom of expression:

4. In accordance with the Magna Charta Universitatum, the Assembly reaffirms the right to academic freedom and university autonomy which comprises the following principles:

4.1. academic freedom in research and in training should guarantee freedom of expression and of action, freedom to disseminate information and freedom to conduct research and distribute knowledge and truth without restriction;…

4.3. history has proven that violations of academic freedom and university autonomy have always resulted in intellectual relapse, and consequently in social and economic stagnation;…

This sentiment was further reiterated by the European Court of Human Rights (ECtHR) in Sorguç v Turkey [2009] ECHR 979, underlining ‘the importance of academic freedom of expression, which comprises the academics’ freedom to express freely their opinion about the institution or system in which they work and freedom to distribute knowledge and truth without restriction’(para 35).

So any restriction on the freedom of members of the Commission must be prescribed by law, which is essentially the same (para 116) as ‘in accordance with the law.’ Chris Grayling’s blocking has to have a lawful basis. It is alleged that he has claimed that ‘[p]risoners aren’t going to have sex on [his] watch’ and he has been accused of taking it personally, even politicising his role, with other suggestions that the Ministry of Justice is doing ‘everything in its power to block the commission’s work.’ If Grayling is indeed taking a personal political standpoint on the Commission’s research, then this may call into question the legality of his decision, as it would seem to imply that he is taking irrelevant (personal view) considerations into account, failing to take relevant considerations into account (the possible benefits of this research), having his opinion influenced by the Howard Leagues opposition to policies (improper purpose), and applying the possible irrational/Wednesbury unreasonable belief that sex will not happen on his watch. In terms of public law, if this was indeed the process of decision making, it would be illegal, and therefore would fail the first hurdle of restricting the Article 10 rights.

There is also an important point regarding Article 8, which states that:

  1. Everyone has the right to respect for his private and family life, his home and his correspondence.
  2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The ECtHR in Niemietz v Germany [1992] ECHR 80 believed that there was ‘no reason of principle why this understanding of the notion of “private life” should be taken to exclude activities of a professional…nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world. This view is supported by the fact that…it is not always possible to distinguish clearly which of an individual’s activities form part of his professional or business life and which do not. Thus, especially in the case of a person exercising a liberal profession, his work in that context may form part and parcel of his life to such a degree that it becomes impossible to know in what capacity he is acting at a given moment of time’ (para 29).

This would suggest that the Article 8 rights of the Commission are also interfered with and would therefore require a justification under Article 8(2); but as seen above, with the lack of justifications in relation to Article 10, Article 8 would also be violated.

Prisoners have rights too

Sadiq Khan made an important point where he noted that:

Not only are there public health issues [with sex in prison], but some of what goes on might even be criminal. Standing in the way of research which will help us find out more about what’s happening in prisons seems like a petty response from Chris Grayling.

This may have implications for Article 3 of the ECHR, which states that:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

This rule is said to be absolute (para 137) and therefore there can never be justification for its breach. Additionally, as Article 1 suggests, the state has the duty of securing the rights that are contained in the ECHR for everyone under its jurisdiction. The ECtHR in Đorđević v Croatia [2012] ECHR 1640 further maintained that this required states ‘to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals. These measures should provide effective protection, in particular, of children and other vulnerable persons, and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge’ (para 138). Having an inquiry into sex in prisons may go some way in bringing knowledge to the authorities, which is why it does not make sense to prevent this.

If there were indeed sexual offences committed, not only would this engage Article 3 but also Article 8, as ‘private life’ covers the physical and moral integrity of the person, including his or her sexual life (X and Y v Netherlands [1985] ECHR 4 para 22). In M.C. v Bulgaria [2003] ECHR 651, a case involving rape, Articles 3 and 8 were read together (para 166).

There is a problem however, in Osman v United Kingdom [1998] ECHR 101,as the ‘[s]tate’s obligation… extends…to…putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions’ (para 115). These are already in place and, in referring to a state’s procedural obligations, Grand Chamber in Janowiec v Russia [2013] ECHR 1003 noted that:

[T]he reference to “procedural acts” must be understood in the sense inherent in the procedural obligation under Article 2 or, as the case may be, Article 3 of the Convention, namely acts undertaken in the framework of criminal, civil, administrative or disciplinary proceedings which are capable of leading to the identification and punishment of those responsible or to an award of compensation to the injured party… This definition operates to the exclusion of other types of inquiries that may be carried out for other purposes, such as establishing a historical truth. (para 143)

However, in the same judgment, the joint partly dissenting opinion of Judges Ziemele, De Gaetano, Laffranque and Keller vehemently disagrees, stating that ‘[s]ometimes, one procedural step is a precondition for another…[and] in international law there is a clear trend towards recognising a right to the truth in cases of gross human rights violations’ (para 9).

Research by the Commission could initiate some of the proceedings mentioned by the majority of the Grand Chamber, i.e. sexual offences between inmates, sexual offences between inmates and staff or staff having sexual relationships with inmates which would involve misconduct in public office (which are all criminal) which can also lead to disciplinary proceedings (for staff members if relationships have been uncovered between them and inmates, this may also lead to civil action depending on the circumstances). So what the minority are suggesting is that even the ECtHR’s own case law betrays the reasoning of the majority; historical truth can lead to civil action. If one only looks Ndiki Mutua and Others v Foreign and Commonwealth Office [2012] EWHC 2678 (QB) (the Mau Mau case), this was set in motion by academic research conducted by Professor Caroline Elkins, Professor David Andersonand Dr Huw Bennett. This ultimately led to William Hague announcing that the Government will provide £19.9m in compensation. This demonstrates how valuable research can be even if it was not intended to provide legal avenues.

So it would seem that blocking this inquiry may not have any implications for the state’s positive obligations, because there are no allegations of any sexual offences/inappropriate relationships; and if there were, it would be the duty of the police to act upon this. It seems Grayling does not want human rights to apply to those in prisons, nor to those who want to help them.

And as Yoda would say:




Thanks to @RichGreenhill for reading initial draft.

Yashika, UKIP and us….

It was sadly poignant that the same day that Yashika Bageerathi was deported, UKIP leader Nigel Farage was trouncing Nick Clegg in a televised debate. The two things may seem unconnected – but they’re not, they’re intrinsically linked. Xenophobia rules the roost in the UK right now. The deportation of Yashika – and the death, just two days earlier, of Christine Case, in Yarl’s Wood Immigration Detention Centre – may look like tragic, individual events but they’re not. They’re what a ‘tough’ immigration policy looks like. Yashika’s case has been highlighted as particularly cruel, but to imagine that it is unique is naïve to say the least. All the hand-wringing over Yashika, important though her case is, misses the point to a great extent. We’ve build this system. These are the consequences.

Pressure has rightly been put on Theresa May and James Brokenshire over Yashika – because they could potentially have intervened – but there’s remarkable political consensus over immigration policy, which is even more depressing than the individual case. Labour’s response to the deportation amounted to ‘keep on going with the same policy but be nicer in her individual case’. The Lib Dems wrung their hands as they always do, but May and Brokenshire are ministers in their government, and this is their policy being brought into action. What’s more, they (almost all) voted through the effectively racist and authoritarian Immigration Bill in December – Labour abstained, which was tantamount to supporting the bill. ‘Toughness’ on immigration is pretty much the norm. Whether the major parties are supporting it ideologically, through fear of UKIP, through fear of the more rabid of the tabloids (the Mail and Express have a particularly poisonous role to play), because they have no principles and believe it to be electorally advantageous, or because they actually believe in this ‘toughness’ in the end doesn’t really matter. It certainly doesn’t matter to Yashika or her family, or to Christine Case, or to the large numbers of others suffering as a result of it.

What is clear is that almost no-one in the political establishment is challenging the ideas that underpin this ‘toughness’ agenda. The idea that immigration is somehow ‘bad’ or damaging. The economic case against immigration is flimsy at best – most of the evidence seems to suggest that immigration is essentially beneficial to the economy. The historical case is equally flimsy – we’re a country of immigrants, the product of wave after wave of immigrants and invasions, from the Celts onwards. The moral case, as exemplified by Yashika and Christine Case, is even worse. And yet no politicians from major parties even dare to challenge the current anti-immigration rhetoric to a serious degree. A few (notably the Lib Dems in a recent policy document) dare talk about the positives, but only with huge caveats and statements about making sure it’s the ‘right kind’ of immigration and so on. Mostly, though, the consensus is clear. Clear, xenophobic, and wrong.

Why is this? Can we shift the blame to supine politicians playing to the tune of the tabloids and the tabloids’ masters? I don’t think so. We’re complicit in this, and deeply. We’ve let it happen – I don’t mean at the detail level, and I know lots of individuals who have spoken up boldly and bravely about it, but as a nation, this seems to be the way we’re going, and what we seem to be accepting – and even applauding, if the enthusiasm for Nigel Farage last night is anything to go by. That is profoundly depressing, and we should be deeply ashamed.