What is in Kelvin's Head?

  • Pollokshields – These are our neighbours

    It was impossible not to be moved by people standing around an immigration enforcement van in Pollokshields yesterday chanting “These are our neighbours, let them go”. Many people today are proud of those in this city who stopped this enforcement action.

    Every country needs to have an immigration system and every immigration system needs to be enforced in some way. Every such system needs to be fair and just. However the immigration system in this country has ceased to be fair and has ceased to be just. Any government that actively seeks to be hostile to those seeking asylum has already failed the test of being fair and just. The immigration system in this country has not only become hostile to refugees but the government has recently announced plans to make it even more hostile and to limit the possibility of appealing to the Supreme Court in asylum cases.

    Every asylum seeker needs access to justice in order that the system itself can be seen to be fair.

    Yesterday, the people of Pollokshields came out onto the streets because they believed that what was being done in their name was not fair. With an aggresively hostile system in place as a policy, it is impossible to be sure that any asylum decision is fair.

    The police made a wise call yesterday not to try to clear the street and the two men detailed were set free into the community.

    We need a fair asylum system.  Without a fair asylum system, there will increasingly be successful protests by citizens who will prevent the authorities from being able to act.

    If the government believes it can appeal to voters by making an already hostile asylum system even more hostile, the people in the streets of Pollokshields showed yesterday that at least in some places, that policy will fail.

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2 responses to “Human Rights Petition”

  1. Steven Avatar
    Steven

    Kelvin

    I strongly agree with your sentiments and intend to sign the petition. As a practising barrister I can say that the incorporation of the Convention has had a hugely beneficial effect across society – especially in creating a rights aware culture amongst the judiciary.

    I have successfully relied on the Convention to (1) ensure that the state continues to support destitute asylum seekers whilst they are appealing an asylum support decision (2) prevent the removal of a mentally unwell Brazilian amputee who is awaiting further surgery in the UK (3) ensured that those detained under immigration powers are not held in “ordinary” prisons and (4) prevented the deportation of a Turkish national for a crime committed whilst a child. The Convention naturally “benefits” those on the edges of society – whose cause might be unpopular. That does not mean, of course, that it is unworthy. Quite the opposite.

    I have of course relied upon the Convention in cases which stretch the reach of the various articles. That is how the law develops. Judges do not embrace such claims uncritically. Unfounded and weak claims are rejected as such and so the public perception of an “out of touch” judiciary is misplaced. Thank God for the Judges who – if they were to follow the whims of public opinion would “string em up”, “bring back the birch” and “throw away the key”!

    The Human Rights Act 1998 still retains parliamentary sovereignty in any event. This means that Parliament can still introduce laws that are in breach of the Convention. All that a Judge can do when faced with such legislation is declare it to be “incompatible” and that is it. This may create political pressure (especially at a European level) but it means that the “Queen in Parliament” is still sovereign.

    In addition the HRA 1998 has become entrenched as an almost constitutional statute. Repeal or significant amendment would not create less litigation. On the contrary, as the Daily Mail might put it, lawyers would have a “field day” arguing about when a particular right ceased to exist under the ECHR in the UK and the extent to which rights survived repeal or amendment. It would create a legal mess, a constitutional back-step and a political nightmare.

    In fairness though a solicitor did ask me if they could bring a case to challenge a refusal by the police to allow a man more regular smoke breaks on the basis of his Convention rights (he was being questioned for murder)…I reminded the solicitor that the drafters of the Convention had in mind the ashes of Auschwitz when drafting the Convention and advised him to, as they say in Ulster, “catch yourself on!”

    Reply
    1. kelvin Avatar
      kelvin

      Thanks Steven. It us really helpful to have your perspective and some concrete examples.

      Reply

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