It will, he hopes, result in “serious change” by dispelling the impression that human rights law is all about extending the sort of protection to terrorists that they do not accord to those they attack, murder and maim.
“Insufficient attention has been paid to rights of victims,” he says. “In recent years there have been 19 international treaties on co-operation around counter-terrorism, but not a single one devoted to the human rights of victims. I believe we have reached a point in history where that cannot be sustainable. Apart from anything else it gives human rights …” He pauses, in best courtroom fashion to choose his words with care. “I don’t want to say a bad name, so let’s say a skewed perspective when looked at from point of view of the public. They see human rights’ laws as protecting one side of the equation but not the innocent victim. It is our problem at the moment.”
Described as one of the top ten QCs in the country by legal profession directories, and rumoured to have been the model, practical if not physical, for the Colin Firth radical barrister character in Bridget Jones’ Diary, Emmerson was raised a Catholic and educated by Benedictine monks at Douai School in Berkshire (an experience which, he says, has put him off the Church but not God).
In 2000, he was one of the founders of Matrix Chambers, the barristers’ set that includes Cherie Blair amongst its members, and is in the vanguard of human rights’ work. Among those Emmerson has represented are the WikiLeaks founder, Julian Assange in his fight against extradition, Katharine Gun, the GCHQ worker accused of breaching the Official Secrets Act by leaking documents in the run up to the Iraq war, and some of those detained without charge on grounds of national security.
His draft UN convention – revealed exclusively to this paper – makes a series of challenging proposals, principal among them that countries must offer compensation for human rights’ violations to victims of terror that take place on their territory. It is, in effect, what happens in the UK already under the Criminal Injury Compensation Board scheme, but isn’t the norm elsewhere, including the United States. There discretionary payments can be offered as “an act of beneficence”, but there is no binding legal right.
“Until we take head on,” explains Emmerson, “that victims of terrorism are victims of gross human rights violations, perhaps the grossest in the modern world, we are not doing what we say so often that we do, which is to put victims centre stage.”
But surely the ones doing the compensating should be those who carry out the terrorist crimes, not governments? “In Spain, after the Madrid bombings, the liability in the first instance was those against accused of terrorism, but because they had no way of fulfilling that liability, the Spanish government stepped in. The important point is that the rights of victims under human rights law cannot just be ignored or passed around. Victims of terrorism are in a very special category. These are not private murders carried out for private reasons. The victims are effectively the unwilling martyrs in a conflict between a terrorist organisation and the state that is not their own.”
Another controversial part of the Emmerson plan for the UN concerns insurance companies. He wants all member governments to ban life insurance policies that include exclusion clauses for death or injury as a result of acts of terrorism. “Too many families whose loved ones have been killed or seriously injured have tried to claim under policies only to be told there is an exclusion clause in small print. It adds insult to injury.”
Emmerson’s commitment to the cause of victims is unmistakable. It is his belief that in human rights’ law, and in the interpretations made of it of the controversial Strasbourg court, there exists something that has positive benefits for all members of society. Should his proposals be taken as a fight back against the bad press – my words, not his – that his specialist area of law has suffered of late? “No,” he replies emphatically. “It is by no means a response to recent controversies, I’ve been working on this for best part of a year. But it is relevant to that debate.”
Why do judges and politicians seem to clash so often in this area? The Prime Minister recently told the Commons that the Strasbourg court’s ruling on the need to allow some British prisoners the vote made him “physically sick” “Historically governments will sometimes take decisions they expect to be overturned by the judiciary because they don’t want to take responsibility for them and are happy for the judges to be blamed,” Emmerson replies. He sits as a part-time judge in the high court. “But Michael Howard when he was Home Secretary was the first to disregard the mutuality of respect that exists between the judiciary and government by attacking decisions he didn’t like. That has now become an accepted form of public dialogue. The higher up the judicial hierarchy you get, the more tempered the Home Office criticism will be. When you get to Strasbourg, though, they are just foreigners.”
In whose ranks Emmerson may be sitting from November as the UK representative. Politicians, I suggest, can’t be so bad if they have put his name on the shortlist? He laughs. “I was surprised I didn’t get knocked off, but then I have worked for the government in Strasbourg as well as against them.” He pauses, and then smiles. “ But not very often”.
Name Ben Emmerson QC
Born August 30, 1963 in Kent, son of Brian Emmerson, finance director of the London Stock Exchange
Education Douai Abbey School and Bristol University
Career Called to the Bar in 1986. Liberty’s Human Rights’ Lawyer of the Year 1999. Queen’s Counsel 2000; founder member Matrix Chambers 2000; deputy high court judge 2010; UN Special Rapporteur on Counter-Terrorism 2011; judge at International Criminal Tribunal for Rwanda and the former Yugoslavia 2012
Family Lives in London and has four children