Why We Need Strasbourg

Arrogant. Smug. Self-satisfied. These are all adjectives that could be used to describe John Hirst, the principal campaigner for the rights of convicted prisoners to vote in UK elections. Hirst was convicted of killing his landlady back in 1979 with an axe. Despite only receiving a 15 year tariff, Hirst went on to serve 25 years after committing a number of violent offences in jail. Following his release in 2004, he has made it his life's ambition to secure the right to vote for jailed offenders.

Anyone that has heard Hirst give interviews will no doubt be repulsed by his sense of entitlement. He is a man who has committed one of the most unconscionable crimes in society but nevertheless feels free to demand rights and privileges on the same basis as law-abiding citizens. Particular revulsion can be attributed to Hirst's description of the judgment of the European Court of Human Rights (ECtHR), ruling the UK's blanket ban on prisoners voting to be unlawful, as 'his' judgment. For all his cocky remarks, however, Hirst has made one solid point. Public opinion is absolutely irrelevant in upholding human rights.

If you talk to members of the judiciary, most will frankly admit that public opinion is a consideration when decisions are made. This is particularly so in sentencing in criminal justice, where many judges are afraid of being seen as 'soft on crime' by passing a lenient sentence. The extent to which public opinion should be a legitimate factor in ordinary judicial decision making is debatable. What is clear, however, is that the views of the majority should have no impact in the interpretation and application of human rights.

This is so because human rights are about the protection of the individual against the state. The very reason the European Convention on Human Rights (ECHR) was founded in 1950 was to ensure that individuals had binding protection against the tyranny of the majority, which had been so clearly dominant in Nazi Germany and the Soviet Union. Majoritarian views cannot and should not alter fundamental human rights. Accepting that principle sometimes involves taking unpopular decisions like letting suspected terrorists walk free on the streets, or allowing people like Hirst to visit the ballot box alongside decent citizens.

It is very difficult for domestic judges to remain insulated from public opinion. Lord Phillips, President of the Supreme Court, recently claimed that judges were totally detached from the political arena and made decisions entirely according to the law. This is clearly false, as a cursory glance of the law reports in the area of human rights will reveal to you. Judges of different political persuasions can differ markedly on issues of liberty and security. Whenever a significant ruling is made by the Supreme Court it is almost inevitable that the members of the court will have considered the front-page implications the next day. They are first and foremost British lawyers, who have grown up in British society with British morals and values.

Human rights, by their very nature, are universal. A person's right to a fair trial should be the same whether he is in England or Saudi Arabia. As a result, there cannot be any scope for the tailoring of human rights to particular national concerns. It is true that states, under the ECHR, have a 'margin of appreciation', within which they can make their own judgments on aspects of human rights law. However, this margin is clearly circumscribed so as to prevent individual states denying people fundamental liberties, such as the right to vote in elections.

As such, it is essential that there is some checking mechanism to ensure that individual countries respect the key principles of the ECHR. A right-leaning think tank recently called for the UK to remove itself from the jurisdiction of the ECtHR, claiming that it was unable to understand the particular morals and norms of the UK in certain areas. However, the peculiar characteristics of nation states should be an irrelevant factor in applying human rights law. In order to guarantee compliance with the Convention it is necessary, therefore, to have an independent tribunal in place to consider a case without all the pressure and scrutiny involved in domestic proceedings.

Judges in Strasbourg are far less likely to take into account the views of the British public when making rulings about the provisions of the ECHR. Jack Straw, writing in The Times, has used this is an argument for refusing to abide by the ECtHR's judgment on votes for prisoners. By contrast, this is exactly why we should submit to its jurisdiction and accept its rulings with good grace. Domestic judges, for all their independence and intelligence, are inevitably more liable to be swayed by majoritarian tendencies than those from different countries, backgrounds and cultures. This is an invaluable safeguard in human rights cases, where the only bulwark between tyranny and freedom may be a person in a gown sitting in a court.

Law, Love and Marriage

The most senior family judge in England and Wales this week called for unmarried co-habiting couples to be given the same rights on separation as divorcing spouses. Sir Nicholas Wall, President of the Family Division of the High Court, argued that those who have lived together in a relationship should have entrenched legal rights governing the distribution of property when they break up. His intervention is the latest contribution in a debate that has vexed family and property lawyers for some time now.

When married couples get divorced, both parties are entitled to a share of the marital assets. Usually, this will involve taking a percentage of the value of the family home. Each party's share is based on a number of complex factors but the general rule is that both are entitled to equal division.

The historical position in relation to unmarried co-habitees is that there has been no rights for either party to make claims on the other following separation. This has changed in recent years following the ruling of the House of Lords in Stack v Dowden (2007). In this case, the House of Lords held that when co-habiting partners are the joint legal owners of the family home, but have not made any express declaration in relation to their beneficial interests, there is a presumption that both parties own the house in equal shares.

Therefore, if you register property in joint names, the starting point is you both have 50% ownership. This is the case even if one person has bought the house outright. That party would need to show that he or she had made an exceptionally high contribution in order to justify departing from the equal division principle.

As a result of this, I was surprised to see Sir Nicholas making the case for more rights for co-habiting couples. In his view, the current state of the law, despite the ruling in Stack, does not do enough to help the weaker party (usually the woman) when a relationship comes to an end. In support of this view two points can be made. Firstly, the ruling only applies to situations where the home is registered in the parties' joint names. As such, if the other co-habiting partner is not a joint owner, there is a presumption that they are entitled to 0% of the beneficial interest. Secondly, in order to enforce rights under Stack, the co-habitee would have to resort to the complex law of trusts, rather than the more sensitive provisions of family law.

As someone who profoundly disagrees with the decision in Stack, I simply cannot see the justification for imposing yet more obligations on couples who have expressly declined to enter into marriage with all the legal responsibilities that entails. In my view, where two people choose to live together in a house purchased in joint names, it should not be automatically presumed that they intend to be joint beneficial owners. It is true that if property is purchased in joint names, it is often the intention of the parties to consider themselves to have the property on equal terms. However, this surely only applies during the relationship itself. Once that relationship has come to an end, the very fact of joint registration should not give rise to a presumption of 50% ownership.

It is open to the parties at any time during the relationship to expressly declare themselves to be joint beneficial owners. If they do this, that will be conclusive. The fact that the parties have chosen not to do this should be regarded as compelling evidence that they intend to share the property in some other way. In the absence of such a declaration and marriage, the state has no right to impose these obligations on two adults.

Critics of this view would perhaps claim that such an approach pays insufficient attention to the needs of children of co-habiting partners. However, courts must consider the needs of the children under Schedule 1 to the Children Act 1989, which allows judges to make a number of orders in relation to property where there are young children involved. Indeed, Baroness Deech, Chairman of the Bar Standards Board and senior family lawyer, made this point when responding to Sir Nicholas' comments during the week.

Whatever way one views the debate, it cannot be disputed that if Sir Nicholas' suggestions were implemented, the distinction between marriage and co-habitation would be sharply eroded. If two people wish to enter into a marriage and put their relationship on a firm, legal footing they should be free to do so. If, however, they don't want the legal and social implications that come with marriage, they should be free to live without it. The different regimes involved in the classification of property rights guarantees a significant degree of individual freedom for people to dictate the terms of their family life. It would be wrong of the state to take away this liberty.

Iraq, Regret and Responsibility

Last week saw the re-appearance of Tony Blair in public life for a few hours. The former Prime Minister was answering questions put to him by the members of the Iraq Inquiry, who required him to 'clarify' some of his evidence given last year. Mr Blair's presence before the committee brought out the usual coalition of Islamists, Trots, and Guardian readers, all of whom expressed their disgust at Mr Blair's belated remorse for the war.

Many people felt Mr Blair did not do enough when he first gave evidence to get across how sorry he was for Iraq. Some people want a full and frank apology for his role in the conflict, citing the thousands of Iraqis who 'unnecessarily' died as a result of his actions. Others go further and demand Mr Blair's indictment before the International Criminal Court for war crimes.

One such individual is the former Respect MP, George Galloway. Mr Galloway has consistently opposed the war in Iraq. This is perhaps unsurprising given his previous support for Sadaam Hussein - on one visit to Baghdad Mr Galloway told Sadaam that he 'saluted' his 'strength, courage and indefatigability'.

I'm sure many Iraqis would agree with the description of Sadaam as 'indefatigable'. He was a man who reigned over his people for over 20 years and never for a moment relaxed his repressive grasp on power. Moreover, he led a brutal regime in its persecution of Shi'a Muslims and Kurdish minorities. During the Al-Anfal campaign against the Kurds, Sadaam's Government murdered over 180,000 people. Sadaam's victims could pay testament to his indefatigability.

This brings me back to the issue of Mr Blair and his regret for the Iraq war. Should it ever be necessary to regret the overthrow of a fascist, genocidal maniac? There should be a distinction here between the means and the end. Obviously everyone regrets the number of people who died in order to effect regime change in Iraq. Thousands of innocent people were killed as a result of poor planning on behalf of coalition forces; thousands more as a result of poor implementation. Those mistakes should never be forgotten and should always be regretted. However, how can anyone regret the forcing out of one of the world's most repressive, vile dictators?

Not many Guardian columnists stood up to oppose Mr Blair's interventions in Sierra Leone and Kosovo, where British forces saved the lives of thousands of people. So why the difference with Iraq? Surely Sierra Leone and Yugoslavia were sovereign states too? Why should the Iraqi people deserve less protection from genocidal rulers than people in those countries? These are all questions neither Mr Galloway nor Guardian leader writers would be able to answer.

When Mr Galloway appeared on Question Time last week, one of his fellow panellists was the Liberal Democrat MP Simon Hughes, who most people now acknowledge to be the slipperiest man in British politics. Mr Hughes was asked the question I posed a few paragraphs above, namely why we should regret the overthrow of a brutal dictator. His reply was that we shouldn't, but only where that overthrow has been sanctioned by international law. This was a response utterly devoid of thought.

Anyone who has ever stumbled across international law will know that it doesn't really work. Jurisprudential scholars agree that in order for something to be a law, it must be clear and socially effective. Neither of these things can be said about international law. Where is my proof? Firstly, no-one really knows whether it was necessary to obtain a second UN resolution before invading Iraq. Lawyers of the most senior stature disagree. Therefore, it can hardly be said that international law is clear. Secondly, the UN Security Council system allows any one of five (yes five) countries to veto military action. These countries include China and Russia, neither of whom are exactly beacons of tolerance, democracy and freedom. As a result, there is a very real chance that intervention in countries where there has been genocide or crimes against humanity will fall foul of international law. This being the case, how can it be said that international law is socially effective?

If you were to take Mr Hughes' view through to its logical conclusion, the international community could be faced with a situation where it is illegal to take action against states who perpetually murder and violate the dignity of their people. I'm not too keen on this. In my view, whenever a country has the economic and military means to effect regime change in countries that follow such a course of conduct, it should do so, 'legally' or 'illegally'. International law did not serve the people of Iraq, Rwanda or Bosnia that well.

So in conclusion, it is right that Mr Blair should have regrets about the Iraq war. However, those regrets should be about the planning and implementation of the campaign. They should never be about the outcome of the war: the overthrow of a menacing, vile, murderous dictator. The day that civilised people demand such regrets is the day we lose all sense of morality and principle.

Why Prisoners Must Get the Vote

David Cameron has described the thought of prisoners being able to vote in UK General Elections as making him 'physically ill'. No doubt a lot of people would share his disgust. The thought does not exactly fill me with joy either. Despite this, there are very important reasons why the franchise should be extended to those behind bars.

The first is based on the concept of human rights. Human rights are by definition universal. They apply to all human beings. They are non-delegable and they cannot be waived. Why not? Because you can't stop being human. The fact that you may have committed the most serious, violent criminal offence does not disqualify you from being a human. It might disqualify you from being a decent human, but it doesn't change the basic fact.

Therefore, everyone is entitled to human rights, even criminals. We accept that criminals cannot be tortured. Furthermore, we accept that prisoners are entitled to fair trials. We allow offenders to get married and to practise freedom of religion. The big question, then, is whether the right to vote should properly be seen as a 'human right'.

This is a matter of debate. It is arguable that voting should be viewed as a civil or constitutional right, extended by law by a state to its citizens. The effect of this would be to say that the North Korean Government does not violate the human rights of its people when it denies them the opportunity to elect their leaders. One would be suggesting that the North Korean Government merely violates civil or political rights.

The opposite view is that the right to elect a government is a basic human right. In support of this, it is possible to argue that without democratic freedom, a person cannot truly be 'free' at all. If one is not given the opportunity to vote in elections, one remains in a state of perpetual subjugation. The social contract an individual is born into with society involves an implicit understanding that when the government of the day takes decisions with public resources that proves to be unacceptable, that individual has the ability to replace the government. If this were not so, the social contract would be an illegitimate tool of oppression by the political classes.

It is to this view that I subscribe. The right to vote in elections should be considered to be a fundamental, unalienable human right. That is why I, like many others, find it so disturbing when I see the wishes of people in places like Zimbabwe, China, Iran, and North Korea continuously treated with contempt.

Once the right to vote in elections has been established as a human right, the case for allowing prisoners to access the ballot box is unanswerable. Public opinion is irrelevant. That is why human rights are enshrined in law. If there was no binding protection for human rights in the UK, the government of the day could pick and choose which freedoms to guarantee and which to abandon. This is plainly incompatible with the notion of 'human rights' and justifies the position of unelected judges upholding such rights in a democratic society.

The other, more practical, reason why prisoners must get the vote is cost. Every day the UK Government fails to pay prisoners who have brought claims under the European Convention on Human Rights, the taxpayer incurs serious financial penalties. Given the precarious position of the public purse, this is a mounting debt the Exchequer can ill afford. The bill for claims currently stands at £35 million. As troubling as the thought of prisoners voting is, it is arguably less problematic than the prospect of convicted offenders enriching themselves at the expense of law-abiding UK citizens.

So for these reasons, it is imperative that Parliament complies with the ruling of the European Court of Human Rights and changes the law. The UK is one of the only countries in Europe that has a blanket ban on prisoners voting. If we have any respect for human rights and the rule of law in general, we should grit our teeth and bite the bullet.

VAT and all that

George Osborne, the Chancellor of the Exchequer, decided to give the economy the new year's boost it needs today by raising the rate of VAT by 2.5%. In doing so he proved his coalition colleague, Nick Clegg, correct when he warned before the election of a Tory 'VAT Bombshell' if they were returned to office.

Mr Osborne, like Mr Clegg has on so many occasions in the past few months, attempted to justify this seemingly regressive, unhelpful, policy by pointing to its 'progressive' qualities, saying it would be a fairer alternative to other measures. In doing so he was partly supported by research from the Institute for Fiscal Studies (IFS), which highlighted the fact that those with the most limited means tend to spend less on the majority of items subject to VAT.

The problem with a rise in VAT, however, is that it reduces the purchasing power of those on lower incomes. Research clearly demonstrates that the poorest bracket of the population in terms of household income will lose disproportionately more from this policy. When it comes to decisions as to whether or not to buy certain consumer goods, those struggling to make ends meet will increasingly decline to take the plunge. This is bad for the poor, whose quality of living decreases further.

Moreover, it is bad for the economy as a whole. Every time people spend money on things like televisions and computers, the shop they buy them from makes money. The more money the shop makes, the more employees they can afford to hire. The more employees they hire, the more those employees spend in other shops. And so on. Discouraging people from purchasing is not good economics. It's especially damaging given the weak growth projections for the UK economy following Osborne's cuts package.

If it has any sense, the coalition will execute one of its now famous U-turns before the rise starts to pour further misery on British retailers. Given the unfortunate timing of this tax rise, coinciding with the start of the Oldham by-election campaign, Mr Clegg may well have a word in Mr Cameron's ear.

Justice and the Paparazzi

One requirement of an aspiring barrister is to gain experience of the profession through 'mini-pupillages'. These involve shadowing barristers for a period of time (usually a week) when they go to court. This week I am completing a placement at a criminal chambers in London. Today I was despatched to the City and Westminster Magistrates' Court to witness a basic drugs case. All very ordinary, you might think.

Little did I know that the City and Westminster Magistrates' Court happened to be the venue for the latest episode in the most high-profile litigation in the UK.

I arrived at the court expecting to encounter the usual bunch of over-worked lawyers and weary criminals. What I actually saw was a flock of photographers and journalists surrounding the entrance. When I asked someone why there was so much commotion, she muttered something about there being a famous person in court that day. After more enquiries I soon realised that the famous person in question was none other than the Wikileaks founder, Julian Assange.

Mr Assange is the subject of extradition proceedings being conducted by the Swedish Government. He is wanted in Sweden in connection with a series of sexual assaults. Supporters of Mr Assange have claimed that the allegations against him are bogus and merely designed to facilitate his eventual extradition to the United States, where there are calls for him to be prosecuted in relation to his role in exposing a huge number of confidential diplomatic cables.

Outside the court, his followers made their views clear. While I was waiting in the queue in order to see the hapless drug offender receive his sentence, the assembled press went crazy as a number of B-list celebrities arrived to support Mr Assange. Firstly, the wealthy socialite Jemima Khan arrived on scene. She was followed by the film director Ken Loach and the veteran journalist John Pilger. All of these noble-minded spirits offered to help Mr Assange with the costs of any bail conditions to the tune of £240,000.

Mr Pilger declared the charges against Mr Assange as 'outrageous' - a curious statement given that he was not present in the bedroom when Mr Assange is alleged to have assaulted these women. Mrs Khan said that she was there to support the 'human right to freedom of information', which does not exist and even if it did, has no application to the case.

Sweden does not appear to have any particular interest in the Wikileaks saga. In order for the critics to be right, therefore, the Swedish Government must be acting as lackeys of the US. This was certainly the implication given by the protesters outside the court, parroting the usual view that the US is the root of all evil in the world. In my opinion, this is clearly absurd. Sweden is no more likely than the UK to extradite Mr Assange to the United States. Even if he was extradited, it is highly unlikely a prosecution would succeed across the pond given the very strict approach taken to freedom of expression. Also, I'm not aware of any particular special relationship that would lead Sweden to deliberately falsify charges to suit the political objectives of the US.

Not that any of this rationality bothered the press, of course.

It's not every day that suspects accused of sexual offences get such vociferous public support. Personally, I find Wikileaks to be an arrogant and counter-productive organisation, which has no concept of long-term public good. Others see it as a revolutionary exponent of corruption and lies at the heart of government. Whatever view one has, however, the fact is that Mr Assange has been accused of sexual offences against a number of women in Sweden. He ought to be made to answer those charges, just as any other suspect being brought before the City and Westminster Magistrates' Court should.

Why he deserves the backing of people like Peter Tatchell or the representation of top human rights lawyer Geoffrey Robertson QC in this matter is questionable. These advantages were - needless to say - not extended to the defendant in the case I witnessed. There is a lesson here to criminals everywhere - undermine democratic governments and gain the support of activists, lawyers and celebrities. Doesn't matter what you may have done.

No Ifs, No Buts - A Reaction to the Student Fees Debacle

Walking through Westminster this afternoon it was possible to appreciate a very real feeling of anger. Anger at broken promises. Anger at the rich. Anger at western society. The outcome of the vote held earlier today, in which the fees for attending university in England were raised to a limit of £9,000 a year, will be one of hostility and outrage. One only has to watch the pictures from the student protests (which at the time of writing are still taking place) to observe this.

My feeling, by contrast, is one of profound sadness. Sadness that politicians really cannot be trusted to keep a promise. Sadness that politicians are incapable of doing the right thing even at the last moment. Sadness that a politician with a real connection to young people could sell out so quickly. Sadness that educated young people react with physical violence after failing to persuade others of their view. All of this requires explanation.

The Causes

Proponents of the hike in fees have justified it by making reference to the underfunding of British universities. Compared to private institutions across the Atlantic, for example, this is certainly true. Even wealthy iconic establishments like Oxford and Cambridge are dwarfed in financial terms by the Ivy League. It begs the question, where should the money come from?

The coalition has come to the view that the money should overwhelmingly come from the individual student. Vince Cable, the Lib Dem Business Secretary, has pushed through an 80% cut in the university teaching budget. Others, particularly the National Union of Students (NUS) are of the view that the money should principally come from the state.

Some people will be sympathetic to the coalition. A plumber, for example, who has never had the benefit of a university education may find it hard to understand why he should have to pay through his taxes for the tuition of an investment banker or a corporate lawyer. The NUS would counter that higher education is beneficial for society more generally. As such, the argument goes, the funds should be found through taxation.

My personal view is that there should be a partnership between the individual and the state. The terms of this partnership should depend on the advantages an individual draws from higher education. Thus a corporate lawyer would pay back more than a teacher, care worker, or charity manager. I believe that the status quo is about right. There should be a base rate of £3,000 for every student. Above that, any repayment should be contingent on ability.

The Proposals

The coalition would argue that this partnership model is reflected in the reforms. It is true that aspects of the plans are more progressive in this sense. Students earning more will be liable for higher repayments through interest on loans. The net effect of the proposals, however, is a hugely damaging blow to notions of fairness and social justice.

Students now will be facing repayments of up to £27,000 for a three year degree. Add in living costs of £4,000-£5,000 per annum, the total cost of attending university could well reach £40,000. This is a massive increase in student debt, whatever gloss the government tries to put on it.

It is true that no-one will have to pay unless they earn over £21,000 per year. But those social workers and public servants earning £21,500 will be liable for a sum of money that could take them the rest of their working lives to pay back. This is wrong for two main reasons.

Firstly, a university education is a good thing for individuals. Learning by itself gives people a tremendous capacity for human development. I happen to think that it is fantastic that working class children can go to university and debate poetry, philosophy and politics. It gives them the ability to reach for the stars and understand the world in which they live. For me, it is these concepts that justify the claim that education is a right not a privilege.

Secondly, a university education is a good thing for society. The economic benefits of producing graduates have been well-stated. In a world in which we are competing with China, India and a range of countries that produce first-class graduates, it is imperative that we keep pace. Furthermore, there are huge social and cultural advantages to increasing university enrolment. A better educated society has a lower crime rate. It is more creative and more equal.

For these reasons, it is deeply regrettable that the coalition have decided to cut the teaching budget by 80% and load the cost onto students.

The Consequences

Economic

The economic consequences of the reforms could be very problematic indeed. I do not believe that the proposals will lead to a shortage of university applicants. One only has to look at the number of unsuccessful applicants last year to conclude that interest will still remain high. However, there is likely to be a serious problem with personal debt.

Placing a £40,000 liability onto the balance sheets of middle earners already coping with mortgages, taxation, and the costs of raising families hardly makes economic sense. It is likely to discourage enterprise and risk-taking. I think it is very probable that the amount of people defaulting on their student loan repayments will increase dramatically.

It is ironic that in the name of deficit reduction, the government are encouraging more people to assume potentially unmanageable levels of personal debt.

Social

While I do not believe that the proposals will reduce the total number of applicants to university, there is a very real risk that they will discourage those from disadvantaged backgrounds from doing so. A freedom of information request this week has shown the appalling racial enrolment statistics for Oxbridge colleges. There is clearly a problem that needs addressing.

Those from impecunious homes will find it hard to justify to their parents going to university and assuming huge levels of debt when they could be out earning money on the labour market. Young people from social groups who are unrepresented in higher education will more readily come to the conclusion that university is 'not for them' and something only accessible to wealthier families.

As the numbers of ethnic minorities decreases, bright aspirational applicants from disadvantaged backgrounds are likely to turn their backs on higher education. The consequences in terms of inequality, crime, and prejudice may be devastating.

Political

As someone with a keen interest and belief in the power of politics for social good, I was massively disappointed by the decision of the Liberal Democrats to renege on their pre-election promise to vote against any increase in fees. When I reveal my interest in politics to people, the most common reaction I get is that 'they are all a bunch of liars' and 'you can't trust any of them'.

If a prospective parliamentary candidate personally signs placards pledging not to do something if they receive votes, it creates a legitimate expectation on the part of the public that they will honour that promise. When they then - after receiving the votes and gaining office - go back on their words, the consequence is a critical and irreparable blow to trust in politics.

Mistrust in politicians is bad for so many reasons. It makes it less likely for people with ideas and energy to enter the political sphere. It creates an atmosphere of suspicion that makes injustice possible. Significantly also, it gives ammunition to extremist parties like the BNP, where people can be sure that promises will not be broken.

Conclusion

As a result, my mood when walking past the protests in Westminster was sombre. It is a sad day when a generation of people can be let down by a man they put faith in. It is a sad day when people feel so angry that they lash out in hurtful ways. Most of all, however, it is a sad day when any trust a young person may have had in politics evaporates for ever.