FLAGGING UP A MISCONCEPTION

The late, great John Peel was renowned for playing records at the wrong speed, so much so that a compilation of music that he championed through the 70s and 80s was called “Right time,, wrong speed”. The same might be said for the Supreme Court following judgment yesterday (Lord Kerr giving the single speech) in DB v Chief Constable of PSNI, the case arising out of the policing of flag protests that occurred in Belfast for a few months in late 2012 and early 2013. This blog is not going to be a detailed summary of the decision, something Leanne Woods has provided today on the UK Human Rights blog. Instead, it offers an alternative perspective on the critical part of the judgment that goes to the scope of Art 11, which protect peaceful assemblies, and the nature of the police’s duties and power in relation to such protests. The analogy with John Peel is apt: the Court was correct in the view it reached on the (non) policing of the loyalist flag protests but its reasoning is flawed. Indeed, that reasoning – unless nipped in the bud – opens up the prospect for restrictive policing, in Northern Ireland and on the mainland, in the future.

The gist of the case – a judicial review – was that in deciding they did not have the power to take preventive action in respect of protests that had not been notified under s.6 of the Public Processions (Northern Ireland) Act 1998, the police, specifically ACC Kerr (Gold Command) had misconstrued their legal powers. In doing so, they misunderstood the nature of Art 11 and undermined the 1998 Act. The Chief Constable lost in the High Court – Treacy J deciding that in considering whether to stop the marches, ACC Kerr felt he was inhibited from doing so by the 1998 Act and thus “labouring under a material misapprehension as to the proper scope of police powers and the legal context in which they were operating” – but succeeded before the Northern Ireland Court of Appeal (Sir Declan Morgan LCJ, Girvan LJ and Weir J [2014] NICA 56). There, the central issue was whether the police response to the parades was based on the need to take account of “the possibility of violence and disorder giving rise to article 2 risks both in the immediate vicinity and in the wider Northern Ireland community”.

The Supreme Court reversed the NICA, and found for DB. There are interesting discussions in the judgment on operational policing discretion in the context of protests (at [71]-[76]) but this is not our concern. In Lord Kerr’s view, in their handling of the flags protests, the PSNI misconstrued their legal powers to stop parades passing through or adjacent to the nationalist Short Strand area of Belfast. The extent of their powers and indeed duty (under s.32 of the Police (Northern Ireland) Act 2000, a general duty to prevent the commission of offences) was not “legally complicated” ([65]), though as Lord Kerr conceded, this was perhaps clearer only in hindsight. I too think the legal position is relatively straightforward… only not in the way the Supreme Court did.

The nub of the finding – and we see this in several places – is that a protest that is not notified is illegal and, as a matter of law, that this then required the police to take preventive action. The police – and this is the Court’s view, albeit very much a paraphrasing – were doubly wrong: not only did they not have any power to prevent marches that had not been notified, but they had a duty to prevent them.

Contrary to ACC Kerr’s stated position, they could indeed be stopped solely because they were unnotified. There certainly was such a thing as an illegal parade under the Public Processions Act ([65]).

It is here where I think the Supreme Court errs. It is the case that where the proposed organiser of a public procession fails to give notice to the police, both the organiser and (in Northern Ireland) anyone who takes part in it leave themselves exposed to arrest under s.6(7) of the 1998 Act. Does this mean the protest march is illegal or unlawful? The law needs to distinguish actors from event. While from a legal perspective it must be hard to disaggregate “the march” from those taking part in it, conceptually they remain distinct. In fact, even in the strict legal sense, the two are not (necessarily) coterminous. It is only an offence knowingly to take part in an unnotified march; s.6(8) offers a defence for anyone arrested under s.6(7) to show that they did not know of, and neither suspected nor had reason to suspect, the failure to notify the police. It is very unlikely surely that, had there been no notification of the Women’s March in Belfast a week or so back, all of the several hundred women who were there would have known that. Yet, Lord Kerr’s approach – the eliding of protest with protesters, each and both acting unlawfully – risks empowering (and indeed actually requiring) the police to break up each and every march where the organiser has not given the correct notice.

This category error leads to an analytical failing. In seeming to define out from the scope of the protection of Art 11 all protests that are “illegal”, Lord Kerr has misconstrued Strasbourg jurisprudence. His construction of an illegal protest as a legal entity, rather than unpeaceful protesters, is not one that has ever been accepted by the European Court of Human Rights. The notion of an illegal or unlawful protest – whether parade, march, assembly or some other repertoire of contention, in Charles Tilly’s terms – has no pedigree. There is clear and constant case law, starting perhaps with Ezelin in 1991 – where it was asserted that the right in Art 11 was so important that it could not be restricted “so long as the person concerned does not himself commit any reprehensible act” ([53]) – that asserts that

a situation of unlawfulness, such as …the staging of a demonstration without prior notification, does not necessarily (that is, by itself) justify an interference with a person’s right to freedom of assembly. In other words, the absence of prior notification and the ensuing “unlawfulness” of the event, which the authorities consider to be an assembly, do not give carte blanche to the authorities; the domestic authorities’ reaction to a public event remains restricted by the proportionality and necessity requirements of Article 11 of the Convention (Novikova v Russia [2016] ECHR 388, [163])

While this does not mean that the parade or protest per se is immune from policing intervention, whether that be prevention (in advance) or dispersal while it is taking place, it does mean that any such interventions must be measured, proportionate and balanced. If challenged, as here, that is something that must be assessed ex post. It is engaging in that analysis that the Supreme Court singly fails to do. Instead the Court elevates a principle found in Molnar (at [37]) – that “the absence of prior notification can never be a legitimate basis for crowd dispersal” – to its reverse. Lord Kerr concludes from that the “ECtHR has made it clear that, in general, a requirement to notify an intention to hold a parade and a decision to disperse a parade or protest which has not been notified will not infringe article 11” (at [61]). That is not what Molnar holds at all, and neither do subsequent cases. In Berladir, the Court made clear that where there was no prior notification the decision “to disperse the ensuing demonstration solely because of the absence of the requisite prior notice, without any illegal conduct by the participants, may amount to a disproportionate restriction on freedom of peaceful assembly” (at [43]). In Primov, the Strasbourg Court said this:

While rules governing public assemblies, such as the system of prior notification, are essential for the smooth conduct of public events since they allow the authorities to minimise the disruption to traffic and take other safety measures, the Court emphasises that their enforcement cannot become an end in itself. In particular, where irregular demonstrators do not engage in acts of violence the Court has required that the public authorities show a certain degree of tolerance towards peaceful gatherings. Consequently, the absence of prior authorisation and the ensuing “unlawfulness” of the action do not give carte blanche to the authorities; they are still restricted by the proportionality requirement of Article 11. Thus, it should be established why the demonstration was not authorised in the first place, what was the public interest at stake, and what were the risks represented by the demonstration (at [118]-[119]).

The correct approach for the Court here would have been, having found that notice had not been given, not immediately to deem the march wholesale as illegal, thus requiring police intervention, but to move to the second stage of any analysis where it is alleged there has been an interference with a qualified right: to assess whether dispersing or preventing it would have met a pressing social need. That is why this is the right record at the wrong speed. On any reasonable assessment, the PSNI had the power in law to step in and to regulate the flags marches, even quite possibly to have imposed quite restrictive constraints, and were mistaken in both asserting they did not, and then policing the marches on that mistaken basis. Where the Court took a wrong turn was in concluding that this power – duty in fact – arose simply because an organiser, or small cadre of organisers had deliberately flouted the need to give notice. That approach removes automatically an individual’s right to peaceful assembly.

By construing s.6 of the 1998 Act as it did, the Supreme Court risks instituting a policing scheme that breaches the ECHR. In fact, the very structure of s.6 leaves open a human rights challenge, absent this Supreme Court decision. Since it is an offence for anyone taking part in an unnotified march to be arrested under s.6(7) then, assuming either sufficient police manpower or a small enough march, everyone could be arrested. The march would naturally come to an end – for want of any participants – and would do so irrespective of it being deemed an illegal march, under the ratio of DB. The fact that at the police station a handful of minutes later or later at trial, every participant succeeded in the s.6(8) defence – proving they did not know of the failure to notify – would arrive too late for the right to peaceful protest effectively to be exercised. The essence of the right had been extinguished at source on the day by mass arrests, notwithstanding later individual criminal vindication.

That risk is exacerbated were that ratio to be transferred across unthinkingly to the mainland. Here, in England, the scheme in the Public Order Act 1986 has one critical difference. It is only an organiser under s.11 who commits an offence if they fail to give six days notice (s.11(7)); participants do nothing wrong simply taking part in an unnotified march. This makes the notion of an illegal march or unlawful protest yet more problematic. Most people taking part in a march that had not been notified would have committed no crime at all.

Whether in Northern Ireland or elsewhere, constructing the law such that everyone on a protest vicariously suffers the flaws and omissions of others, of the organisers, seems to fly in the face of the individualised nature of human rights. This is not the first example of the courts sanctioning a collective policing response to an individualised concern or risk. I wrote this about the House of Lords decision in Austin, the kettling case. This decision

edges us closer to a position of “illegal gathering”, a concept hitherto unknown in English law but all too familiar elsewhere…The historic position taken in English law is to allow the targeting of individuals either by turning them away or permitting them to be arrested but to confer immunity on the group itself as a separate entity. What we see in Austin is effectively collective guilt by association–and the larger the potentially guilty group (that is the larger the numbers of those threatening or becoming violent), the more defensible it is for the police to exercise indiscriminate control ([2009] EHRLR 376, 393).

When the European Court sanctioned that approach when Austin reached it. It is to be hoped that if DB is taken there, Strasbourg adopts a very different approach to the idea of “illegal protests”.

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Losing the vote: the referendum, Miller & dos Santos and Brexit

I need to make one point very clear at the outset. I was, and remain, fundamentally opposed to leaving the EU and think it will be a long- and short- term disaster for the UK – for our economy, our well-being, our environment, our workers, our citizens and EU nationals here to name but five areas of life EU law touches upon. I think the Leave campaign – rather, its main proponents, some of whom now hold Cabinet posts or are being touted as future ambassadors (!) – was shocking in its dereliction of truth and even more so in its ex post denials that it had done so. I’m well aware too, if the point this blog is about to make is thought a good one, that it may well be arrayed before the Supreme Court in a few weeks time, ammunition seeking to have the High Court judgment overturned, so securing the government’s position as one that need pay no formal heed to Parliament. At a normative level, I think that would be a very unwelcome and retrograde step. All that said, I did have and continue to have several legal concerns about the Miller litigation. Many have been expressed better and more contemporaneously than is this one. One niggling matter remains though. That is the focus of this blog. It is an issue with a solution though, one that is identified here too. Much has been written on the subject and most of it can be found on the UK Constitutional Law Association Blog or on Professor Mark Elliott’s Public Law for Everyone blog. I’d suggest anyone coming to this for the first time to dip in to any one of many excellent contributions already there. Mark kindly read over a first draft of this piece and made a host of helpful suggestions. All errors and views remain mine alone.

The key battleground, or one certainly, before the Supreme Court is going to revolve around the continued exercise of the right to vote in elections to the EU Parliament contained in s.8 of the European Elections Act 2002 on which see Mark Elliott’s recent post here and elements of Jeff King’s and Nick Barber’s most recent contribution. It is said that that right will disappear as soon as we leave the EU – assuming Article 50 to be irreversible – and since Parliament’s will expressed in the 2002 Act would thereby be frustrated, starting the withdrawal process cannot be done simply by the prerogative. The accepted constitutional position is that Parliament alone has the power to remove from citizens their entitlement to statutory rights, previously conferred by Parliament. It is, I think, accepted too by all – on both sides of the academic debate – that, were the UK to leave the EU, the effective exercise of the right to vote would be lost and that such a position is covered by the scope of the rule on prerogative vs. statute (i.e. the rule covers not simply the loss of rights but diminution of their effective enjoyment). It would be a contrivance beyond measure to seek to argue that elections could continue – the Parliament after all will continue to exist – given that the result of any such elections held would not mean parliamentary representation as there would be no UK MEPs.

This very short blog simply offers one small point to consider in that sub-debate. It is surely not beyond argument that one reading of s.8 of the 2002 Act would be that “A person is entitled to vote as an elector at an election to the European Parliament in an electoral region…for so long as the UK remains a member of the EU” (italics added) or some such similar qualifier. Indeed, that is the likelier more natural meaning. The High Court judgment after all involved and indeed was predicated on what could well be seen as a much greater “reading”, according to constitutional principles, and taking account of the constitutional background. I’m fairly sure Professor Finnis does not need me to defend him but that must be what he meant when he referred in his blog to “under EU Law” (a point which Robert Craig takes against him). It cannot have been the intention of Parliament firstly in 1978, when it established the first system of direct election, to have created something that would outlast any continued UK membership or indeed would even outlast the EU itself or its Parliament? The 2002 Act must surely be read as contingent on the continued existence of a European Parliament in some form? If so, is it such an egregious stretch to read the 2002 Act as subject to the UK’s continued membership? To do so, is is not, per King and Barber in their blog yesterday, “embrac[ing] the very approach to interpretation that [those who consider the High Court to have erred] reject in respect of the ECA 1972 and the broader case-law on the prerogative powers.”

Where then does that leave us? How, if at all, does that assist one way or another the argument on the prerogative? At first sight it takes us nowhere. It does not seem to offer a firm conclusion on whether the process can be kickstarted simply by government decision or whether Parliament must be involved. It simply asserts that the scheme of the 2002 Act foresees its own demise but does not predict, or require, how – rather, by whom – the fatal wound should be administered. Those advocating the High Court decision was wrong would assert that the implied words presume the UK being a member qua member state on the international plane, such status being subject to the prerogative power to conduct international relations as the executive sees fit. Those contending that the High Court judgment should be upheld would assert that even those implied words should be read subject to the wider constitutional principles – such as the pre-eminence of Parliament – and that Parliament, first in 1978 and then in 2002, must have legislated in full awareness that when it conferred rights, it reserved to itself alone the sole right to remove them. If Parliament had desired it otherwise, it was incumbent on it to design a different scheme and wording.

Both are attractive but stepping back is instructive. Those who support the High Court’s approach – if we take Barber and King as exemplars – consider that European elections point to be critical, to be the smoking gun:

It is, perhaps, worth emphasising that even if all of the critics’ arguments over the implications of the 1972 Act are accepted, the 2002 Act is quite sufficient, in itself, to prevent the executive triggering Article 50.

The generally agreed view – on both sides of the debate – is that what will be required, if the Supreme Court upholds the High Court is legislation; a resolution by both Houses will not be sufficient. If Barber and King – and other supporters of the High Court’s approach – are right though, it must follow that Parliament must be given much greater involvement in the withdrawal process than is perhaps currently acknowledged. The precise scope of that is still to be determined – and it would have remained so even if there had been no appeal – the scope of declaratory relief being left open by the High Court earlier this month.

There is an internal illogic in the claimants’ case. First, they argue the prerogative cannot be called up on to alter domestic law or deprive citizens’ of statutory rights. Triggering Article 50 does both, and at least does the latter. Secondly and however, all that is then required is the “intervention of Parliament”, something accepted by the High Court as a requirement in Miller (at [34]). This is the rub. The parliamentary intervention proposed must surely be more than currently seems to be envisaged? Indeed, this might be what Lady Hale was hinting at in her recent Sultan Azlan Shah Lecture in Kuala Lumpur (9th November), a speech that has generated a whole separate sub-story if its own. At a legal level, so far as I can see only Jeff King so far seems to have engaged with this aspect. If these are “statutory rights” (and of course there are issues here about that very issue), and if the legal position is that these cannot be removed or their exercise frustrated by the executive alone, then surely it must also follow that their removal must specifically be addressed by Parliament, and approved? Otherwise whatever lesser involvement Parliament does have is likely to be confounded by the common law principle of legality set out by Lord Hoffman in Simms ([2000] 2 AC 115, 131)

But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.

Now – and I’m grateful to Mark Elliott for helping my thinking on this aspect – the counter to that is that the right conferred here on UK citizens, in the 2002 Act, is not the sort of right envisaged as being captured by the principle of legality. The Simms principle, it would be argued, extends only to common law rights, not those with origins in, or created by, statute. Without conceding that point, if that be correct, then surely we meet head-on the Thoburn principle – that the 2002 Act is a constitutional statute, and so would need specific repeal in any legislation purporting to authorise the triggering of Article 50? A general Act under which Parliament explicitly authorises the “removal, repeal or diminution of such rights under EU law that subsist in domestic law whether their source be an EU Treaty, Directive, Regulation, the 1972 Act or some other enactment” would – either on the principle of legality or under the Thorburn principle – not be viewed ex post as sufficient. What would be needed in whatever legislation eventuates after the Supreme Court decision would be a clear and express Parliamentary recognition that in authorising the triggering of Article 50, Parliament acknowledges, and accepts, the necessary consequence: the removal of the right to an effective vote in EU Parliamentary elections.

Raising that very legal problem thus portends the political solution though it would only be partial. It is not only the right to vote that would be lost. At the very least it would be all “category III” rights, referred to in Miller (at [61]) as the rights that flow from membership of the EU club: the right to vote, to stand in elections, to seek a reference to the CJEU and to request the Commission take regulatory action. These would all need separate iteration in any authorising statute and express acknowledgement of their removal, showing Parliament has squarely confronted what it is doing. That would that be enough provided that category III list is conclusive. That is unlikely. As just two examples, it must also include the right to petition the European Parliament and the right to have access to official EU documents (both under Arts 20 and 24 TFEU). These too would need to be addressed specifically in the Triggering Article 50: Parliamentary Consent Act 2017.

As to category II rights – rights of EU citizenship enjoyed in other member states by UK citizens – one side of the argument is that these are not functions of, let alone conferred by, domestic law at all. If the Supreme Court were to adopt that analysis, described by the High Court when rejecting it as “highly formalistic”, withdrawal under Art 50 would not engage the frustration principle at all. Any reduction or loss of such rights consequential on withdrawal would not be the reduction or loss of domestic rights. Such a line of reasoning might well not be followed. The High Court on this might well be upheld. The Supreme Court might well conceive them as EU Law rights conferred on UK citizens by the European Communities Act 1972 (albeit only capable of being exercised abroad). They include the rights of residence and of movement (and associated rights) and the right to seek diplomatic protection in a member state. These category II rights would then also be domestic law rights removed by withdrawal. If so, the solution must again be for the legislation authorising withdrawal specifically to address each of these rights and provide express parliamentary sanction for their removal.

Category I rights – those capable of replication in domestic law should the UK leave – would survive withdrawal. That is either because they were transposed through separate legislation (such as the right to equal terms for work of equal value, now in Chapter 3 of the Equality Act 2010) or because they take effect in domestic law by virtue of s.2 of the 1972 Act. That latter would include both SIs (such as the Working Time Regulations of 1998) or because they are themselves directly effective and directly applicable EU Law (as either Regulations or Treaty provisions). In all such cases, either the transposing legislation or the 1972 Act will remain in force unless and until separately repealed notwithstanding any withdrawal from the Union itself… and it would be that separate repeal (or repeal and confirm, as is being proposed in the Great Reform Bill) that constitutes Parliament’s express decision to remove rights it had earlier conferred. No separate traversing of these rights is therefore necessary in the Triggering Article 50: Parliamentary Consent Act 2017.

Jeff King’s fine discussion does not touch not any of this. As his minimalist option, he suggests a one-section Act conferring authority on the Prime Minister. That would, I take him to mean, comply with the ruling if upheld by the Supreme Court. He goes further though and offers his conditions option: the bill “would be the occasion for Parliament to secure a right to exercise genuine input into the manner in which negotiations for withdrawal shall take place.” He offers four principles to underpin that more expansive Bill, but – and this is critical – none addresses the continued domestic law status (or otherwise) of extant EU rights, the very matter upon which those supporting the High Court judgment found their view that it was correctly decided. Those four are:

First, Parliament must be given clear rights to notice, to comment on key negotiating positions and draft agreement text, and to a response from the Government to its comments. Second, the devolved governments and legislatures should enjoy formal participation in the consultation process in rough parity with the Westminster Parliament. Third, the Government’s stated notice deadline of 31 March 2017 should be respected (assuming it is not itself to blame for further delay through bullish behaviour). Fourth, there should be no attempt to load the bill with a variety of veto points that would have the effect of destroying the possibility of Brexit during negotiations on the exit agreement. If Parliament really wants a U-turn, it must do so openly rather than insidiously.

I am doubtful that if such a procedural Bill were introduced and passed, even one on the expansive terms Jeff King suggests, that it would be sufficient to allay the concerns above about the removal of substantive rights, and Parliament’s necessary role in that. I’m offering this point in a genuine spirit of inquiry. I’d be delighted if it could be shown how my thinking has gone awry – my concern about the case would become a non-issue for the Supreme Court. Yet, I really do not see how it can be maintained on one hand that statutory rights will be taken away by executive fiat while seemingly to suggest on the other that the remedy, the legislation said to cure that ill, needs to address “only” the process for approving withdrawal not the substance: what will be the effect of withdrawal? Of course such substance-oriented legislation would be possible – and I’ve tried to outline some of that above but it would involve a lengthier parliamentary process as it would require (in my view) the separate identification of all rights removed. It thus rather foresees the end of the game before a decision has been made to start it… but that would appear to be the logical implication of the route the High Court took.

 

David Mead is Professor of UK Human Rights Law at the University of East Anglia. Many thanks to Mark Elliott for reading over and for suggestions on an earlier draft.

 

 

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The Dog That Barked Rather Quietly: The Role of Law in Social Movement Studies

On Wednesday this week (27th) I gave a talk at a symposium organised by UEA’s School of Politics, Philosophy and Language. The theme of the day was media, activism and politics. I rather went against the grain and spoke about the role & relevance of law for social movement scholars, and activists. I plan in this short blog to outline a couple of the keys points I made

I am a Johnny-Come-Lately to social movement scholarship, having been almost all my academic life rather a dull(ish) doctrinal lawyer, albeit one who has dabbled in the socio-legal aspects of protesting. Probably less of the come-lately, and more of the “train delayed not yet arrived” if I am being honest.

That said, what I have gleaned so far from reading the literature – immersing would be too strong a term – on law and social movements is a double-whammy omission:

  • the dominant focus of law and social movements scholars (whether lawyers or sociologists) is on using law as part of the group’s strategic armoury, what Charles Tilly referred to as repertoire of contention. This, I argued, marginalises its relevance to a whole host of other issues that social movement scholars look at as, say, a structuring force. As Michael McCann put it in his review piece in the Annual Review of Law and Social Science: “many of the more recent studies build on relatively narrow but unarticulated conceptions of law, mostly focusing on litigation outcomes and the roles of lawyers.” (McCann, 2006).
  • and even within the literature in using law, the focus is almost exclusively on legal mobilisation, that is law before and in the courts, either proactively or reactively. This too offers only at best a partial explanation of the role of law within the armoury of an SMO.

Even then, the appearance of law in the literature is still rather nascent, perhaps only in the last decade or so and is very much a US-driven phenomenon. For example, The Blackwell Companion has nothing in its index for law, two pages listed for law enforcement, and two for “justice systems”, and eight pages listed where “legislation” is mentioned. By contrast mass media, mobilisation and movement participation each have entries into tens, along with sub-entries. There are honourable exceptions this side of the pond, such as Graeme Hayes at Aston or Brian Doherty at Keele, and Chris Hilson in the Law School at Reading.

The talk was in three parts. The first sought to provide various alternative perspectives or conceptualisations of law, in addition to it being broadly a study of rules (Where do they come from? What do they assert? How are clashes of rules resolved?). Again as McCann put it “…much scholarship is committed to making claims about law without clearly thinking through the complex, multiple dimensions of what often are recognized as law and legality” (McCann, 2006). I offered law as binary – are you an employee, yes/no? – and law as constitutive, creating relationships, of rights, of duties, establishing definitions and categories. Law is also a schematic – establishing interdependent framework of rules – and structuring responses. We might also conceive of law as a formalised system of dispute resolution, offering order, not the chance of chaos. Lastly, we might conceive of law as concerned with values and norms, with a legitimating function.

The next offered some suggestions as to how law – even in its most rule-maker guise – could shed light on the various interests or research questions SMO scholars have, broadly (and very basically):

  • Initiation: what might trigger someone into acting, and what process is behind turning that atomised individual anger into collective action – how and why and when does a group emerge, and mobilise?
  • Organisation: what form does and should a group take to maximise strength? How does it grow – how does it represent itself / is it represented in order to garner support? How are internal tensions managed?
  • Goals: what are the group’s aims? What counts as success? What factors – opportunity structures – determine success?
  • Operation: what does and should the group do to achieve its aims? What strategies or tactics – repertoires of contention – do/should they adopt? How, why and when might strategies change.

Just taking a few of those. So clearly the law can provide an initiating trigger – such as the legal ban on certain groups voting or on same-sex marriage. Law might provide the background structuring canvas – in common law systems, landowners cannot be forced to use their property or to rent it out; it can, broadly speaking, sit vacant – so a whole squatting movement might grow. It might not be the law on the books that is the problem but the law in action – the discriminatory use of vagrancy laws in the 1970s gave rise to Scrap SUS. Law might also help frame the claim – using the language of rights (disability rights: Vanhala, 2002) or TaxJustice. Law might impose an organisational straitjacket, requiring certain forms (and this is especially so in the labour movement) such as an “organiser” under certain public order laws. It might provide a structural suggestive skew towards more formal organising – such as we can see in the UK in the Transparency of Lobbying, Third Party Campaigning and Trade Union Administration Act 2013 which cut by 2/3 the amount third parties can spend in a general election campaign, while holding the line for registered parties.

It is at the operational level that there has been most focus. SMO choices tend to fall into institutional (e.g. political campaigning, lobbying, litigation) or confrontational, carrying out a range of repertoires of contention or protests, over a spectrum from peaceful to civil disobedience to non-violent direct action to outright violent insurrection. Most of the focus, both here and more so in the US, has been on legal mobilisation, or litigation strategy – whether pro-active, such as bringing JR – as in the recent PLP case – or reactively. Within that latter, Vanhala (2011) helpfully distinguishes strategies of active reaction or passive reaction. The former is where one seeks out by formal acts of NVDA or civil disobedience – awaiting a prosecution (or perhaps civil SLAPP: Hilson, 2016) then to co-opt the court process for a “political” defence, airing grievances more widely – for both internal and external mobilising purposes (on which see Doherty and Hayes generally). There are clear problems associated with such approaches. We might think of Galanter’s (1974) idea of repeat players v one-off hitters and the fact that activists ‘must articulate their claims so that they fall within the categories previously established by an amalgam of constitutional, statutory, administrative, common, and case law’ which in turn ‘shape the progress and outcome of movement claims in important ways’ (Andersen 2006). Another would be the linked problem of judicialisation. As Hilson (2016) puts it, “the whole point of a SLAPP suit is to convert a matter of public interest into a technical private law dispute, robbing it of political framing and providing a legal one instead”. In short, the legal process might not be sufficiently attuned to the bigger picture, to the “real” claim or concern, or the group’s goals – what we might term doctrinal disjuncture. In the Cornerhouse challenge to the SFO decision to discontinue the investigation into alleged corruption by BAe Systems in relation to the Al Yamamah defence contract with Saudi Arabia, the applicants lost (simply) because judicial review is not responsive to a merits-based challenge.

The paper neared its close by offering a more enriched and nuanced legal terrain for SMOs to traverse, located within the earlier framework – differing conceptions of law. This paper will highlight just two, of those four. The preference for law over disorder is most easily seen in the formalised system of dispute resolution, without resort to force, the idea really of legal mobilisation. In contrast we can see law as favouring if not disorder per se then disruption. We need think no more than to the disruptive – preventive – capacities of modern policing, and mass arrests (without subsequent charge) or bail conditions – all in fact sanctioned by law. Alternatively, law itself can be used as a disruptive repertoire – and I am thinking here of the mass compliance with the Westminster notification system called for by Mark Thomas. Law acts with constitutive power when it, for example, dictates the availability of places to mobilise or hold actions by conferring the status of “public” or “private” upon it, with all that entails for access. It also defines what can be done at place X, rendering the ordinary and commonplace an act of resistance: it is not unlawful to read out the names of the dead, but it is if you do so at the Cenotaph within the 1km boundary of Westminster without notification. Legal rules thus construct political deviance: while no one has been arrested for playing hopscotch, protesters have been arrested for chalking on the pavement, and charged with criminal damage (Hardman [1986] Crim LR 330).

The paper ended by re-asserting that law was a vast resource for both SMOs and those studying it but that at the moment, we were scratching the surface in only one or two areas. The problem, I argued, might be that law is not fully or usually thought of – either by its scholars (though far less so now) and others – as a social construct, and a reflexive one at that. The focus perhaps had been on what law was – and less on what it did or was capable of doing. Previously law had been seen as something in parallel – whereas I am offering law in an undergirding role.

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Law and Social Movements

Yesterday (27 April) I gave one of two keynote speeches at a UEA Politics symposium on Media, Activism and Politics. The full list of speakers is here Media Politics and Activism FINAL poster   I hope to blog a few lines on this in the next few days but for now, for anyone interested, the slides are here –
PPL SYMPOSIUM 2015 MEDIA ACTIVISM AND POLITICS

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Filed under Protest, social movements, Uncategorized

Two single thoughts on sovereignty

In a recent blog, generated by the EU referendum, allied to the Conservative plans to enshrine sovereignty in statute, Mark Elliott, Professor of Public Law at Cambridge, discussed the (by now) well known views of Lord Bridge in Factortame: that whatever limitations were imposed by EU Law, they were accepted voluntarily by Parliament in 1972 when it passed the European Communities Act.

This assertion relies on the fact that it had been in 1972 a (reasonably) long established principle of EU Law – dating to Costa in 1964 – that EU Law must be given primacy over conflicting national laws. That must be blindingly obvious: for a “common market” to work, there must be some common law. Unless and until all laws were common, that inevitably meant supranational supremacy. Lord Bridge was not dealing with that as a normative proposition but simply asserting first that doctrinally speaking, the point had been settled and secondly, that it could reasonably have been expected for MPs to have been aware of that. Hence, his voluntary acceptance assertion. Professor Danny Nicol puts the contrary view very well in his 2001 book EC Membership and the Judicialization of British Politics where, having researched the debates and the papers, he comes to the conclusion that Parliament was not fully informed by the Government – ministers, law officers and civil servants – on the legal consequences of joining the Community, as it then was.

That is not the point of this short blog. My concern is what Professor Elliott then goes on to suggest:

[Lord Bridge] argued that any limitations upon its sovereignty implied by EU membership had been accepted ‘voluntarily’ by Parliament when it enacted the 1972. The implication was that Parliament is at liberty to permit EU law to prevail over its own enactments. The flip side of that coin must be that if Parliament chooses not to permit EU law to have that effect—either by repealing the 1972 Act or asserting the priority of only certain pieces of domestic legislation over conflicting EU law—then it is free to do so.

I have never really understood what the voluntary nature of the argument adds other than to illustrate its consensual nature. I’m certainly not at all sure the flip side follows. If I voluntarily give my best friend my car, I cannot by the same exercise of choice, seek to make her give it back to me – it’s gone, surely? Some exercises of choice are a one-way street – the subject matter of the choice having disappeared, as a result of the choice being exercised (if I choose to eat a mars bar now, I cannot later choose to give it to my son) or become a differently constituted entity.

The difference here is greater – and is the point made by Lord Wade, (discussed a few paragraphs earlier in the blog) in his commentary on the Factortame case. If sovereign power X, in full awareness of consequences freely chooses to confer sovereignty on Y, then X is no longer sovereign – Y is. No unilateral act by X can ever restore X’s sovereignty as it is no longer sovereign. It simply cannot expect whatever reclamation order it makes under its purported sovereignty to have any legal effect. While it undoubtedly has the power – i.e. there is no restriction on it seeking to reclaim – it cannot legitimately expect to become the sovereign once again.

While, to be fair to Professor Elliott, the argument that his blog makes does not rest on the validity of those two seeming opposites both being true – but on the difference between UK domestic law and EU law on the international plane, that I am fully in agreement with, I thought it sensible to point out what I see is a flaw in logic.

This necessarily involves me disputing another “truth” about sovereignty – which Professor Elliott also makes, or repeats. It is this: sovereignty contains one built-in limitation. No sovereign can ever divest themselves of their sovereign power. I have never really grasped this. In lay terms, it confounds reason

“You’re the sovereign now”

“What does that mean?”

“You have absolute power.”

“Oh, does that mean I can abolish myself or give it all away to my mate?”

“Oh, no, that’s the one thing you can’t do.”

“But you said I had absolute power?”

“Ah, yes in all but that one area”

“Oh, so I don’t have absolute power?”

A body that has limitations imposed upon it is not sovereign but subordinate, surely… if for no other reason than that some other entity has prescribed what its powers are?

It seems too to fly in the face of historical precedent. Is it really being asserted that countless divine monarchs who, over the years, have ceded powers (and whether willingly or by force does not seem to matter here for this argument) to elected legislatures either

(a) were never sovereign since if they were able to cede power, they were never really sovereign? or

(b) such ceding could not only be unilaterally revoked by the monarch (perhaps by now a long extinguished line) but the law and political framework would respond to that unilateral revocation with welcoming arms?

That latter seems as far fetched as a re-united Conservative Government on 24 June!

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Filed under Public Law

EVEL IS AS EVEL DOES

I was asked on Twitter by Carl Gardner for “a concrete example of a bill that this plan [for EVEL] would take away Scottish rights on, and an explanation of how.”

Screen Shot 2015-10-22 at 17.48.43

This short post seeks to do that, with some considerable trepidation as there are countless tens of better placed devolution experts than me, but here goes. It does not offer a normative view on the soundness or otherwise of excluding MPs representing Scottish constituencies from voting on matters that concern solely the massed millions of English constituents.

It seems to me very simple that the EVEL proposals both dilute the value of Scottish MPs votes, numerically by conferring two votes on English MPs (so in numerical terms a vote by a Scottish MP is relatively worth half of an English MP’s vote, and in reality much more since that crucial second English MP vote has no Scottish equivalent, setting up as it does a one-way veto exercisable without response (since if the veto in Grand Chamber is voted on and rejected by the House in full, the ping-pong that results leads to only one winner, the English veto)

Let us assume a Parliament slightly differently constructed:

Labour 305 comprising 265 English MPs, 25 in Scotland and 15 in Wales

Conservative 275 comprising 255 English MPs, 5 in Scotland and 15 in Wales

SNP 25 MPs

LibDem 27, comprising 13 English MPs, 4 in Scotland and 10 in Wales

(along with 18 N/Irish MPs from UUP, DUP, Sinn Fein and SDLP)

and assume further a Labour/SNP coalition with a majority of 4 (330 seats).

 

An English-only Health Bill passes 2nd Reading with those SNP votes, and the Scottish Labour votes carrying the day. We can exclude from this example a Bill that fails to pass 2nd Reading since this new system leads to no change – it goes nowhere, and not even the possibility of English MP consent can save it, since it never reaches that stage. Similarly, a Bill that passes 2nd Reading but with Scottish MPs voting against will go into the new system but if the veto is exercised, that is in accordance with their wishes and if consented to there, there had been no change in result in the new EVEL system

Thus, it passes through Public Bill Committee in the usual way but then the new EVEL system triggers a legislative Grand Committee of (here) English only MPs. The 25 Scottish Labour MPs are excluded, as are the 25 SNP MPs, the few Scottish LibDems and Conservatives, as well as Welsh and Northern Irish MPs. The anti-Bill minority in the House (275 Conservatives and 27 LibDems) is now turned into a majority: against the 265 English Labour MPs there would be ranged 268 English Conservative and LibDem MPs combined. They will, we can assume, veto the Bill – they didn’t after all want it when it went to a full vote on 2nd Reading. While it will go back the House as a whole to seek compromise, eventually if that cannot be reached, the Grand Committee is reconvened and “asked to consent to the amendments made by the whole House. If no agreement is reached at this point, the disputed parts of the bill fall.”

It seems to me that it cannot be anything but a diminution, removal even, of the equal rights of Scottish MPs over the legislative output of the House. Their one chance, as part of a rump of 650, to say yea to legislation is outflanked by the later right afforded to a smaller group to say nay.

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SUBMISSION TO DEPT. FOR BUSINESS INNOVATION AND SKILLS – REFORM OF INDUSTRIAL PICKETING LAW

CONSULTATION ON TACKLING INTIMIDATION OF NON-STRIKING WORKERS

DEPARTMENT FOR BUSINESS INNOVATION AND SKILLS

TRADE UNION BILL 2015

I am Professor of UK Human Rights Law in the Law School at the University of East Anglia (UEA), a Chair I to which I was first appointed in 2012. Over the past twenty years, I have written extensively on protest/public order and the law, including the main academic treatise The New Law of Peaceful Protest: Rights and Regulation in the Human Rights Act Era (Hart Publishing 2010, )as well as on the Human Rights Act and on policing more widely. I should also declare an interest as a member of the University and College Union (UCU), and Vice-President of my university branch. I am writing in an academic capacity.

I wish to make only a short comment on the plans to regulate industrial picketing yet further. In my view, the consultation document suffers from two defects: first, it fails to identify with enough precision why further legislation is needed (though I accept that consultation responses may do so) and, secondly, it is silent on what must (obviously in my view) be the knock-on consequences for the right to protest more widely. It is not an in-depth dissection of the proposals (such as offering the view that democratic accountability and reputational protection – para 26 – are matters surely for a union to opt for, not to have foisted upon it?).

Before doing so, it is surely worth noting some key points from the Article 11 jurisprudence of the Strasbourg Court, the European Court of Human Rights:

• The right to “peaceful protest” is not equated with lawfulness; a protest can be unlawful – say, for breaching permit requirements – but remain peaceful. The consultation document in para 8 seems to conflate the two, wholly incorrectly.

• There is no such concept as an unlawful or unpeaceful assembly; it is an individual right and, as such, the right is not lost by the (violent) behaviour of others; it is lost only if the person is (or perhaps intends to be) violent

“The guarantees of Article 11 of the Convention apply to all assemblies except those where the organisers and participants have violent intentions or otherwise deny the foundations of a “democratic society”… Any measures interfering with freedom of assembly and expression other than in cases of incitement to violence or rejection of democratic principles – however shocking and unacceptable certain views or words used may appear to the authorities – do a disservice to democracy and often even endanger it… If every probability of tension and heated exchange between opposing groups during a demonstration were to warrant its prohibition, society would be faced with being deprived of the opportunity of hearing differing views on any question which offends the sensitivity of the majority opinion. The Court would add that a demonstration may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote. (Faber v Hungary [2012] ECHR 1648 [37]-[38])

• The right to freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society (Promo Lex v Moldova [2015] ECHR 216 [21])

• Where demonstrators do not engage in acts of violence it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance (Oya Ataman v Turkey [2007] ECHR 493 [42])

• If every probability of tension and heated exchange between opposing groups during a demonstration was to warrant its prohibition, society would be faced with being deprived of the opportunity of hearing differing views (Öllinger v Austria [2006] ECHR 665 [36]

 

1. What is the gap?

The consultation identifies (para 4) various unsavoury incidents said to have occurred on picket lines, noted in the Carr Report of 2014. Bar the last, photo-shaming of non-strikers, it is hard to see why the police would not be able to arrest anyone reasonably suspected of committing them. Each is (either clearly or more than likely) a free-standing crime, as the consultation points out later on p.7.

What more is planned to be added, and why? The police can perfectly properly arrest. If they have no evidence or indeed (para 8) “no direct evidence of criminal behaviour” then creating a greater range of offences will either not solve the problem or will be so widely drawn as to capture a whole host of obviously and clearly legitimate activity. In short, as I comment in my book, the problem is less likely one of insufficiency of laws but inadequacy of enforcement; the latter is not solved by dealing with the former.

There is nothing that should prevent officers both (i) arresting individuals for ostensible criminality and (ii) facilitating the right of every one to protest peacefully something which the document seems to presume is mutually exclusive. They are not and indeed it could be argued are actually mutually reinforcing. Further, in general terms arresting those who are violent raises no Art 11 concerns since such an individual has removed themselves from the scope of the right by ceasing to be peaceful, while arresting those who are “merely” intimidating non-strikers may likely be a proportionate response and so protected under Art 11(2).

It is, in other words, hard to see what a new offence of intimidation on the picket line would add: using threatening or abusive words causing another to fear immediate unlawful violence is already an offence under s.4 of the POA 1986, whereas if someone were “merely” harassed or alarmed by such language or behaviour, that too is an offence but under s.5. It would have to quite low level intimidation – and therefore (arguably) not actually intimidation at all or certainly not intimidation that the law should punish – for that test not to be met.

It would be hard to justify punishing such language as being a proportionate restriction on a striker’s free speech rights (under Art 10) given, in the words of Lord Justice Sedley in what is a well-known case of DPP v Redmond-Bate [1999] EWHC Admin 733 at [20]
“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.”

2. Wider ramifications

What is lacking in the consultation document is any analysis or even recognition that – where change is planned for what it refers to as “leverage” tactics i.e. away from the place of work – either (a) these are already regulated quite heavily by the general law relating to protest or (b) there would need to be tandem schemes, for industrial protests on one hand and for other protests on the other or (c) that the planned changes for industrial protests are a portent for change more widely.

Developing all that a little:

Very few consider the current framework to be especially pro-protest; indeed the government (albeit as part of the 2010-2015 Coalition) has previously pledged to restore the right to non-violent protest, indicating surely there were problems? The legislation passed in that period – removing “insulting” from s.5 and altering the position for protests around Westminster – has not, I would suggest, done a great deal and certainly not as much as required. The law and, more importantly, (policing) practice largely does not tend to favour protest, certainly not forms of protest outside the archetypal norm of marching and assembling.

It is hard to see quite why new and greater restrictions are needed but only for industrial protests away from the picket line. There will always be consequential harm for third parties, or the risk of it at least – the fact that it arises in the context of an industrial dispute does not seem to alter the underlying dynamics sufficiently.

Taking that second point, a few seconds’ thought would surely be adequate to dispel any idea of trying to initiate a regulatory scheme solely for industrial protests. There is under the Public Order Act 1986, no current need to notify the police of anything unless a public procession (march) is being planned; static assemblies are immune from that six-day prior notification rule. There is literature indicating that schemes of notification ultimately often become ones of authorisation, and where organisers concede more in negotiations “bargaining in the shadow of the law”. If we wish to tie the courts up with litigation (one avenue that springs to mind would be an Art 14 challenge to the differential rules as between industrial and non-industrial protests, something where the onus would be on the government to show a proportionate link to the different harm suffered in industrial disputes), to provide academic lawyers with hours of fun and to render the police in stasis as they worry about definitional scope, then that would be the route to go. If not….

The fear that this would lead, by design or default, to greater restrictions on the democratic right of us all to protest, to dissent, and to put across an alternative point of view, even forcibly – something we must surely acknowledge is a public good, irrespective of the temporary, perhaps directed harm suffered privately? – must be a real worry. It is something the Department has simply failed, entirely, to address. An urgent response on that seems to me an eminently reasonable demand.

David Mead, 8/ix/15
Professor of UK Human Rights Law,
University of East Anglia,

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Filed under Human Rights Act, Industrial relations, Labour Law, PICKETING, Protest