Should We Render British ISIS Militants Stateless to Reduce the Risk of Terrorism to National Security?

Contributed by Joe Timmins

Finding the Balance between the Human Rights of UK Citizens engaging in ISIS Activities and the Risk to National Security

The Islamic State of Iraq, more commonly known as ISIS, has dominated the press in recent months. ISIS is like an Iraqi franchise of al-Qaeda that rebranded itself as ‘ISIS’ in April last year. ISIS is an extremist Islamic group that wants a Caliphate, a huge Islamic state that encompasses all Sunni Muslims in the world. But why does this concern the UK? ISIS claim to have fighters from Britain, as well as the United States, France, Germany and other European countries. There is much confusion over how many Britons have gone to fight in Iraq and Syria, with the Foreign Secretary William Hague claiming the number to be about 500 people however some people such as Khalid Mahmood, Labour MP for Birmingham claim this number to realistically be more like 1500 people. My article does not focus on the activities of ISIS, but more on the Human rights of the young Britons who have travelled to Iraq and Syria to fight, and whether it is legal to render them stateless by refusing the previous citizens entry back into the UK.

Using a cost-benefit analysis process, we can assess the possible long term danger of allowing ISIS militants back to the UK. Firstly, If Britain opens its doors to IS jihadist members; an international terror threat could be posed to Britain. Britain would face the long term effects of the conflict as young British Muslims who fought in Iraq and Syria, war-torn countries, would return to the UK possibly increasingly radicalised and pose the threat of committing violence within the UK. On balance, it would seem reasonable to assume that if any ISIS militants travelled to the Middle East to fight, aware of the possibility they could not return to the UK, it would be fair to bar militants returning. However, originally the first Britons to travel to the Middle East were British Syrians, followed by the Kurdish community. There is no evidence to suggest that these people have took part in any terror related activities, and played any other role than to protect their family homeland from ISIS militants who attempted to sweep through the whole of Iraq and Syria. It was only two years ago that the first British Muslims went, bringing the possibility of them joining the violent ISIS group. Consequently, it is very difficult to bar entry to UK citizens returning to the UK from ISIS states as little evidence can be proved as
to who participated in violent crimes and who did not.

In September of this year, the prime minister proposed new laws giving police temporary power to seize passports of citizens suspected of joining ISIS in order to prevent them from re-entering the country. This temporary emergency power was prompted by a video showing an apparent British national ISIS militant, beheading the American journalist James Foley. This gruesome act alone is indicative of the ideology of the group -dangerous and destabilising. There are two United Nations Conventions that cause a legal problem here though. The Status of Stateless Persons 1954 and 1961 Convention on the Reduction of Statelessness serves to prevent the State from rendering a citizen stateless. Moreover, rendering a person stateless, and refusing them access to the UK is arguably contravening the Right To Family Act.

Regardless of this, I support David Cameron’s decision to refuse ISIS militant’s access back to the UK. The purpose of the rule of law is to ensure peace; made possible through a code of accepted behaviour. If somebody, including an ISIS militant, chooses to break this peace and bring harm and terror to somebody else’s life, I would argue that they have lost certain rights as a citizen under a particular rule of law. In addition, under David Cameron’s proposals, sufficient evidence must still be attained proving a person is going to be engaging in terrorist activity before their passport can be taken ensuring a just use of the legal system. As David Cameron said, “Adhering to British values is not an option or a choice. It is a duty for all those who live in these islands…Passports are not an automatic right”. Trying to protect the UK against terrorism, while still allowing members of terrorist organisations certain liberties to comply with Human Rights Laws and Laws banning a state from rendering a citizen stateless, is ineffective and hampering the fight against global terrorism. Otherwise, leaders have to fight the war against terrorism with their arms tied behind their backs.

 

Section 5 (Public Order Act 1986)

Contributed by Yong Gyum Kim

What do you define as being insulting?

Dependant on the nature of your surroundings and the culture you are used to, the notion of being insulted differs for each and every individual. Thus, in order to establish a common ground the Public Order Act was introduced in 1986, which set out to maintain and uphold the social rights of each citizen. According to section 5 of this act,

(1)A person is guilty of an offence if he—

(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or

(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting.

This act however has come under great scrutiny in recent times due to the excessive manipulation it has endured; which have resulted in a plethora of controversial arrests and malpractice on the part of the police and prosecutors. For instance, an Oxford University Student in 2006, was apprehended for questioning the sexuality of a horse, and for informing the officer that the mammal was ‘gay.’ He was later charged under this act and taken to court over the matter. Furthermore, a sixteen-year old boy was arrested under the legislation for peacefully holding a placard that read ‘Scientology is a dangerous cult’, on the grounds that it might insult followers of the religious movement.

Freedom of speech is an integral human right that should not be imposed upon, as per stated in the UN Declaration of human rights; every individual should possess the right to voice their thoughts without the fear of being persecuted or penalised.

Thus, the fact that because of this, multitudes of individuals are having to spend countless hours in police cells, and in trial is simply absurd, and it breaches one of the most primitive and fundamental rights that have been given to man.

The rule of law requires that people should be governed by accepted rules, rather than by the arbitrary decisions of rulers. These rules should be general and abstract, known and certain, and apply equally to all individuals.  Thus, even the slightest discretion in judging the soundness of the deed results in the law becoming flawed as for instance, the notion of  ‘insulting’ takes on different definitions when applied to different individuals; therefore this law is too malleable in the conditions of its convictions, and is a menace to one’s liberty .

The law rightly protects us against discrimination, harassment and incitement to violence. It should not be used to protect us from mere insults, and should not impede the right that is Freedom of Speech.

Former shadow home secretary David Davis, a leading campaigner for civil liberties, said reform was ‘vital to protecting freedom of expression in Britain today’.

Indeed the American Declaration of Independence of 1776, states that;

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, and that among these are Life, Liberty, and the pursuit of Happiness.”

Thus, it is evident that this act and this law needs to be discarded or reformed with immediate effect, for the benefit of the individual, for the benefit of society and for the benefit of mankind.

 

Causation, Good Samaritan Laws and Blind Men Walking off Cliffs

Contributed By Joe Timmins

If Person A, a Blind Man, is Walking Towards the Edge of a Cliff and Person B watches Person A do so Without Stopping him, is Person B guilty of killing Person A?

Please note that for ease of reference, ‘he/she’ will be replaced by ‘he’.

This is a legal problem centered on the issue of causation. English law requires the Prosecution to prove the Defendant has two parts to each offence- Actus Reus, the physical conduct of committing a crime and Mens Rea, proving the defendant was aware that his conduct would lead to the crime or should have been aware. Once Actus Reus and Mens Rea have been proved, causation has also been proved connecting the defendants conduct with the resulting effect.

In the case of Person A and B, to help us understand whether Person B is guilty of the unlawful killing of Person A we can use a ‘but for test’ (Sine Qua Non) to determine factual causation. We must ask ourselves, ‘but for what Person B did (failed to act), would the consequences to Person A occurred’. The answer to this is no, and therefore causation has been proved in fact. If Person B had taken reasonable measures to inform person A he was walking off a cliff, person A would not have died. Person B’s failure to act is an indirect cause of Person A’s death. But the factual cause merely establishes a preliminary connection between the act and the consequence. Having now passed that test, we must determine whether Person B is a legal cause of Person A’s death. Legal causation occurs when a person’s conduct is a substantial factor in bringing about harm. I would argue that Person B’s failure to act very much was a substantial factor in bringing about harm to Person A. Person A was a vulnerable man who must often been reliant on the people around him to aid him in his day to day life. It is reasonable to assume that Person A had no intention to walk off the cliff, and therefore it cannot be argued that even if Person B was to intervene, Person A would have continued to walk towards the edge of the cliff- Emphasising the significance of Person B’s omission to act.

It would seem that Person B’s case is looking very weak, and criminal charges of murder or gross negligent manslaughter would not be surprising. After all, the fact that there would have been a time gap between Person A walking towards the edge of the cliff and then falling off suggests that there was malice aforethought by Person B which would give a prosecution team grounds to open a murder trial. In addition, I would hope that the fact that Person A was disabled would suggest anybody including his family or member of the public would feel they have a duty of care to safeguard him. Seen as this duty of care was breached, should Person B not be criminally punished?

Despite all this, Person B cannot be found guilty of any unlawful killing. The Actus Reas element cannot be proved as the act of omission only applies if you do not do something that the law requires. For example, a parent who fails to feed their baby, resulting in the baby’s death would be guilty of unlawful killing as parents are required by law to look after their children. In this scenario however, under English law, there is no liability for a failure to act to prevent harm or wrongdoing or a crime being committed.  This means Person B was under no legal duty to try and stop Person A walking over the cliff edge, even if he was close enough to do so. The reason for this is because the UK does not have a ‘Good Samaritan’ law whereby a defendant would commit a crime for not doing what he should have, as France does. In the eyes of English law, as Person B took no positive action to cause Person A’s death, B did not commit a crime or become a party to it just because he could have took reasonable action to prevent it.

To conclude, Person B has a moral obligation to take at least reasonable care to prevent the death of another man. Legally however, there is limited scope under English law to enforce any punishment, if any at all. Seen as from the information given, we can assume Person B was not under any contractual duty, voluntary duty, or duty derived from statute (to name a few), Person B was not obliged to prevent the death of Person A. This could change very soon in the UK following a press release on the 2nd of June this year when Justice Secretary Chris Grayling announced ‘Good Samaritans and community heroes will have the law on their side in the future’ with new legislation proposed to come into place at the beginning of 2015. Good Samaritan laws offer legal protection to people who give reasonable assistance to those who are in peril, and encourage people to offer assistance. The purpose of the protection is to encourage people to offer assistance who may be hesitant for fear of being sued or prosecuted for unintentional injury or wrongful death. In the future, this may be accompanied by a duty of rescue as there is in France and Germany. In France, ‘deliberately failing to provide assistance to a person in danger’ can be punished by up to 5 years imprisonment and a fine of up to $100,000. While I cannot foresee a duty of rescue entering the English legal system anytime soon, the newly proposed Good Samaritan laws are a step in the right direction to prevent any future real life stories similar to that of Person A and B; and common sense will become the order of the day opposed to hesitant bystanders fearing legal liability

 

The Death of Meritocracy: Positive Discrimination

Contributed by Joe Timmins

    The British Equality Act 2010 was based on British principles that gender should never have any influence in employment. Amendments to the Equality Act in April 2011 allowing positive  discrimination, or “positive action” as our politicians like to say to defer attention away from the fact that they are encouraging discrimination against groups in society and people in their own constituencies, contradict British values and the amendments should be repealed.

Positive action, for those that are not familiar, is the act of giving preferential treatment to under represented groups in society. While I will be focusing on positive action to correct the disproportionate ratio of men to women in senior positions, please note  that this is not the exclusive use of positive action. This is because the Equality Act replaced the Race Relations Act 1976, Sex Discrimination Act 1975 and three major statutory instruments protecting discrimination in employment on grounds of religion or belief, sexual orientation and age. Therefore positive discrimination can also be used to give preferential treatment to ethnic minorities being called to the bench for example, a white male dominated profession.

I was inspired to write on this topic after reading in the newspaper that the Judiciary Appointment Commission was beginning to enforce positive action. As it stands, it is not unlawful for a women to be appointed to the bench ahead of a man if both candidates are of equal merit. Imagine this scenario: Person X has 12 A’s at GCSEs, 3 A levels (AAA), and a Bachelor of Law from Kingston university. On top of this , person X has had a successful career working in partnership with person Y as a barrister. Now imagine Person Y has 12 A’s at GCSEs, 3 A levels (AAA), and a Bachelor of Law from Kingston. On top of this , person Y has had a successful career working in partnership with person X as a barrister. Who would you hire? You can’t say. They’re seemingly indistinguishable. But what if I told you person X is me and person Y is Sophie, a women, and therefore I do not get the job. This is not the solution to getting more female judges. Instead we should be encouraging women into the profession through childcare arrangement schemes, offering longer maternity leave, offering greater protection against preexisting prejudice through legal reforms and that’s just to name a few options. At the moment we are setting the impression in young peoples’ minds that it is acceptable to consider gender during employment and corrupting the generation of people that are much more liberal than ever before. The April 2011 amendments enforced on us by the European Commission are radical and unnecessary when we are seeing a rise in the number of women in senior positions anyway. Antagonising the rest of the population and women who achieved their position under the old system based exclusively on merit is equally unnecessary as  a result.

In reality the use of positive discrimination is limited, but likewise to many laws in the English legal system, it is the principle of the laws that count and this often sets our legal system apart from those, in continental Europe for example, that employ Roman law. Therefore the limited use of positive discrimination does not hinder the argument that the April 2011 amendments should be repealed. The use of positive discrimination in the Equality Act also presents an interesting argument that the European Commission perhaps has too much influence over our legal system. The changes in 2011 directly opposed the original Equality Act which explicably stated ‘merit’ is the only legal determinant when employing someone. I hope that positive discrimination will be outlawed very soon in the same way every other form of discrimination has been; and then stay that way.

Can Bribery Ever Be Considered a Normal Part of Doing Business?

Contributed by Joe Timmins

Before this statement can be evaluated, we need to first to define bribery in the eyes of the law. The UK’s most recent and revised legislation regarding bribery is the Bribery Act 2010. This law states that a person is guilty of an offence if they promise or give a financial or other advantage to another person to induce or reward a person to perform improperly a relevant function or activity. The Bribery Act 2010 therefore covers nearly every possible aspect of day to day life. It criminalises footballers giving away own goals due to payment from the opposing team to making it illegal for business men to gain an advantage over their competitors through discrete payments during commerce. As the purpose of bribery is to induce a person to perform their job improperly, often breaking their contract and code of conduct, bribery can never be considered a normal part of doing business.

 Bribery is against the principle of transparency in business. It eradicates the openness and communication we expect in the buying and selling of goods and services and does not allow for an equal playing field in doing business. Most significantly, bribery inherently takes away any accountability of the individual(s) committing the offence due to the inconspicuous nature of bribery payments. As both the receiver of a bribe and the person offering it is committing a crime, there is no incentive for either party to reveal any wrongdoing. It is evident that bribery is viewed as socially unacceptable as bribery is always kept out of the public domain. If there was any future for bribery becoming a normal part of doing business, we would see it emerging in our own day to day life’s as it becomes socially acceptable. This is not happening. Business needs government regulation in order to operate efficiently essentially with transparency. Deregulating activity such as bribery in business could create a culture of private firms being above the law. This has the potential to damage business ethics including non compliance of laws protecting employer’s rights.

Bribery can also never be considered a normal part of doing business due to the dangers of a pro bribery attitude spreading into all walks of life. In the same way tipping emerged in the 1700’s, only used as a gratuity to the server of your drink in a bar, tips are now commonly given for a range of services including taxis. A bribery mentality could grow in the same way a tipping mentality has grown. What if a future with bribery considered a normal part of business, led to a need to bribe your child’s teacher into giving them a role in the school nativity? Or a society where bribery was needed in order to get into a cinema? This would create an immoral society, with money as your passport to selfishly gaining an advantage over others in accessing goods and services. Moreover, a culture of bribery would see the loss of the system of meritocracy. Class division would be exacerbated as the wealthy will stay wealthy by making bribes with ease in order to do business while poorer people will enter a vicious cycle of never being able pay a substantial enough bribe to do business.

Business is the practice of making ones living by engaging in trade. The trade price operates by supply and demand and does not account for any extra payments such as bribery. If there is bribery, it is an additional cost that has to be recouped somewhere else in the production process.  This would see customers being charged higher price or suppliers cutting costs. This may be through cutting the numbers of workers, or the use of poor materials and shoddy workmanship. These limitations of bribery make it impractical as a realistic method of doing business.

One of the most recent international companies being investigated for bribery is SWECO (March 28th 2014). The World Bank has debarred SWECO environment for 3 year s following their acknowledgment of misconduct of two senior employees who paid for a trip for the Head of Project management and his family during the amendments of two World Bank financed contracts in return for confidential information. This notable recent case of bribery, and the result of the investigation, provides evidence of how unacceptable bribery is recognised on an international scale.  On an international basis, the common practice of bribery in many countries prevents honest and well governed international trade as these companies are simply unwilling and unable to contemplate offering illegal incentives to conduct basis. This reduces international competitiveness.

“In the corrupted currents of this world
Offence’s gilded hand may shove by justice,
 
And oft ’tis seen the wicked prize itself
Buys out the law; but ’tis not so above:
There is no shuffling”

– William Shakespeare (1564–1616). Claudius, in Hamlet, act 3, sc. 3, l. 57-61.

 

The Tuition Fee Rise: Betraying a Generation or Protecting Their Future?

In December 2010, the controversial austerity measure was passed to increase the student tuition fees cap from £3,290 to £9,000. The policy means that this year, 38% of English universities will charge students the maximum rate of £9,000, and the remaining universities will still increase their fees considerably. The principally Tory-backed legislation has received an outpour of objection over the past year, most strongly channelled through the nationwide student protests which are still taking place to date. However, as future undergraduates, how much will the changes worsen our financial future? The sovereign debt has to be ridden of somehow, but was this Cameron’s only choice to protect Britain’s future, or was there a far better alternative?

The increase in tuition fees poses several potential issues. The obvious concern for many students is the large amount of debt with which they will be burdened after education. To tackle the higher debts from raising the fees, the government is implementing a new current student loan scheme whereby students will repay the 9% of their annual salary when they earn over £21,000, rather than the previous £15,000. However, this measure to facilitate the repayment of higher loans is not enough to help the students manage their huge overall debts that are likely to average around £53,000. In the bigger picture, with higher debts come higher interest payments, which reduce the dispensable income of the post-graduates. This of course will slow down Britain’s economy, as its overall demand will have shrunk.

Another likely issue that the new tuition fees present is the deepening of social immobility within society. For a country that prides itself in allowing those from the bottom rung of the economic ladder to reach the top, a raise in fees would create a block to the obvious way of getting out of low paid jobs.

Although undergraduates will not have to pay a penny during the course, in economic conditions where the unemployment rate is steadily increasing (2.62 million currently) and the job market is contracting, it is not taken for granted that universities will secure a profession straight away. Consequently, potential students from poorer backgrounds will be less likely to attend university lest they are not able to handle the student debt after their degree.

Despite the immediate negative implications, we must not ignore the long-term motives behind the implementation of the rise in fees. Britain reached a trade deficit of 10.3% of GDP in 2010 which ranked them 163 in the world between Nepal and Greece, and indicated huge over spending. In the long run, the UK needs to maintain itself as a competitive economy in the world market, and cannot do so sustainably if it were to carry its huge debt. Doing so could result in Britain being in a position similar to Greece, on the verge of default, so it is without saying that it is imperative that the debt be paid off.

Nevertheless, it is worth questioning whether the government is ignoring an even more efficient alternative to tackle the higher education system. The Conservatives are adamant in raising the tuition fees in order to deal with Britain’s debt. However, an alternative could depend on the transformation of thousands of the skill based degrees to more industrial based diplomacies. This could be beneficial in many ways. Apprenticeships are less costly for the state to run than degrees, therefore the government would save money which could be used to pay off its debt. The vocational nature of the apprenticeships would be likely to increase the employability of each student far more than certain academic degrees. This concept is very similar to the current German higher education system where specialised vocational schools known as Berufsschule are available as a viable alternative to university. Students work in their desired industry for 2-3 years on a part time salary and at the end of the course they are ready for a career up to a low management post. The scheme has successfully diversified Germany’s economy; the same method could too diversify Britain’s economy from one specialized in services to an industrial-based economy as well.

The compromise between spending cuts and making higher education available to everyone is a difficult one to formulate. Yes, the tough austerity measure to raise the tuition fees is likely to remove a large burden off the government, and in the long term this will maintain Britain’s economic competitiveness. However, it is certainly not the best way to bring about a reduction in Britain’s debt. Via this method, a whole generation will suffer from great financial difficulties and it is arguable that the economic effects of this could counteract the government’s long term plans to amend the economy.

Contributed by Kapil Vijh