A non-lawyer’s guide to deductions from pay for taking ASOS: marking boycotts and not rescheduling classes

In a departure from the usual blather on here about protests and public order law, here I set out a short post about employment law and human rights. Specifically, it’s aimed at non-lawyers who’d like to understand the general arguments I make here in the Industrial Law Journal and in this blog here but in the context of the current UCU dispute. The argument is this: university employers who deduct or even threaten to deduct 50%-100% of pay for anyone on a marking/assessment boycott are acting unlawfully by making disproportionate deductions from pay. For those interested in the full argument, it was published earlier this year on-line and in hard copy at the start of this week in the Industrial Law Journal. There is a shorter one here, on which the article was based, and also this by Professors Bogg and Ford from the Bristol Law School. I am not an employment lawyer – they are, and very well respected and eminent ones at that – but a human rights professor with an interest in this from that angle.

1. The historic common law position – that is, judge-made, not in an Act of Parliament – is that any strike is a breach of contract. There is certain protection for unions during a strike if it’s been properly called, and for workers facing the sack but technically, in law, a worker is in breach of contract going on strike. My article does not challenge this.
2. It is also the historic common law position that anyone taking action short of contract – ASOS – by, for example, working to contract/working to rule is also or may well be (strange as this may sound to non-lawyer’s ears) in breach of contract. This is because not only are there express terms of any employment contract, but also implied terms – that is, not written down and so not even agreed specifically. One of these is what’s termed the duty faithfully to serve your employer, not acting to disrupt their business. Again, the article does not deal with that.
3. It is also the historic common law position that an employer, faced with a worker who does not perform their contract in full, and is thus in breach of contract, has a choice. Until challenged, this remains “good law” – so in legal terms, binding on courts and a rule that employers are entitled to work to. It is a legal authority dating back to the late 1980s to two decisions, one from the Court of Appeal and one from the House of Lords, the UK’s highest court, now renamed/replaced by the Supreme Court. For those interested, the cases are Wiluszynski v Tower Hamlets LBC in 1989, and Miles v Wakefield BC in 1987.
4. That choice is this. They can disregard that non-performance, that breach, and the contract continues as before. They must pay full salary whatever lesser performance the worker offers, no matter how large or small the ASOS is. Alternatively, they can make clear in writing in advance that they do not wish to accept any partial performance – no matter how small or inconsequential its effect, no matter how little work is lost or is needed to be made up after the dispute ends. If they make clear that for them it is, full performance of all the demands of the job or none, then they do not need to pay at all for the duration of the dispute/duration that you do not do your job in full. Anything you do after that notice is, in law, deemed to be voluntary.
5. To give some flavour, that Court of Appeal decision established that a local council official who had not answered residents’ queries for five weeks of a dispute was not entitled to any pay for that period, despite it taking him only two-three hours to make good the lost time after it ended.
6. The argument I make is that now, for a court to follow that line of case law would be wrong as a matter of law itself. The argument is that a legal rule that allows an employer to deduct in full despite only losing the value, say, of a few hours’ work – or in the current marking boycott case, a handful of days – is a rule that breaches human rights laws. I’ll set it out here in stages.
7. First, I need to show that such a rule is a breach of the UK’s human rights law, laws contained in the Human Rights Act (HRA) 1998. This is relatively straightforward. Article 11 of the ECHR, which is that the HRA puts into legal effect in the UK, guarantees the right to associate. There is now a long and strong line of case law, both in the UK and under the ECHR, that this include the right to strike and to take industrial action. That being so, a legal rule that makes it (much) harder to strike or take action constitutes an interference – in legal terms – with the exercise of that right. Not all interferences with the exercise of a right are unlawful – only if they are disproportionate. A rule which allows an employer not to pay at all for x weeks despite losing only a small-ish % of the value of the work in that time must be disproportionate. A legal rule which allowed an employer to deduct for the time lost or time needed to recover the lost work probably would be proportionate.
8. Having established that a disproportionate deduction constitutes an interference with or breach of my human rights, the next stage is to show how that would be given effect, how it would be enforced.
9. One seeming problem is the case from 2007 of Spackman v London Guildhall University, exactly on point: a 30% deduction for marking boycott. The judge there decided this was proportionate but did so, as I argue, without any acknowledgement that the lecturer’s human rights were at play and at stake. Instead, the judge’s decision is that as a matter of contract law, there is no duty to pay proportionate salaries. While it seems a case that suits employers, my argument is that it is not in fact ‘on point’ at all.
10. Primarily, anyone on a marking/assessment boycott would be able to argue that their university, as (again in legal terms) a “public authority” under the HRA is directly bound by the obligations contained in that Act. This means it is by law under a duty not to come to decisions that restrict our rights disproportionately. Translating that to our instant dispute, it means a university is under an enforceable duty (actionable by any employee) to decide only to dock pay in a proportionate amount, to reflect the time lost etc. Put another way, it is unlawful as a matter of UK human rights law to make anything other than a proportionate deduction from pay following ASOS or marking etc boycott.
11. I also think it is a breach of its HRA duties to threaten 50%-100% pay deductions, as that constitutes what lawyers tend to refer to as a chill – even if there is no intention ever to deduct such sums, a management email might dissuade colleagues from joining the boycott for fear of the deduction, a deduction which (if I am right) would be unlawful.
12. If I am right on the above 7-11, then one route to sort the matter would be to take a university to court without needing to wait until deductions kick in, by means of challenging its public law/HRA decision – the email threat – by judicial review.
13. Another route to the same eventual end (or if I am wrong about a university’s human rights status, or if an employer is an obvious private sector employer) would be to sue under the contract for the loss of salary, for the deduction. This is conceptually a bit harder but, again in brief, involves arguing that all employment contracts should be interpreted, should be read as including an implied term (that is, one not actually agreed by the parties): not to act in a way that disproportionately interferes with a worker’s human rights. There are a few steps to this but none is insurmountable. The courts have been moving towards accepting general duties on both sides, what’s called “mutual trust and confidence”. This is by now very well-accepted by courts, by employers so the only question is what does this mean, what is its scope? It is not a massive leap, I argue, for that mutual duty to ‘make the contractual relationship work to encompass a more definable duty to respect an employee’s human rights. If so, all employers – public or private – find themselves bound by this new duty, a duty not to act disproportionately towards them in the workplace if their HRA rights are at stake…as they are in this dispute.
14. I hope that explained the argument a little. To be clear: the law as settled currently in or by the courts allows for 100% deductions. I accept that is the current state of the law in England and Wales. That caveat is there as I do not profess any knowledge on human rights/employment law in either Scotland or Northern Ireland. My argument, which I know others in the field accept, is novel. It would need a court case to have it accepted, assuming university employers do not simply roll over and accept the word of some of the UK’s leading human rights and labour law professors…which I’d accept is unlikely.

SOME INITIAL THOUGHTS ON THE POLICE, CRIME, SENTENCING & COURTS BILL – THE NEW PUBLIC ORDER POWERS IN CLAUSES 54-60

These proposals are the first major changes planned to the Public Order Act (POA) 1986 in nearly 20 years, when the minimum number to constitute an assembly in s.14 was brought down from 20 to two.  Previously, the only change had been to introduce a statutory to ban certain “trespassory assemblies’ (s.14A) in 1994, putting public processions and assemblies much more on a par. The Bill is here, and the relevant clauses (that will become sections if it is passed) are cl.54-60. There is a fuller paper with more law in it also on this blog, for those interested in that sort of thing.

In outline, the bill proposes

• Creation of a new trigger for the power to impose conditions on both public processions and assemblies, one based on noisiness. This has two elements: the noise generated by those taking part
  • may result in serious disruption to the activities of an organisation which are carried on in the vicinity [whatever that might mean] OR
  • may have a significant and relevant impact on persons in the vicinity
    • Relevant impact here meaning
      • it may result in the intimidation or harassment of persons of reasonable firmness with the characteristics of persons likely to be in the vicinity OR
      • it may cause such persons to suffer serious unease, alarm or distress
    • Significance of the impact is a function of likely number who may experience the relevant impact, its likely duration and likely intensity
• Creating parity between s.12 and s.14 by removing the caveat in s.14(1) that conditions on assemblies can only be imposed on place, maximum duration, or maximum number (and as appear necessary to prevent the disorder etc). The new power for assemblies will be limited only by necessity
• Conferring of a power on the Home Secretary to make Regulations governing the meaning of “serious disruption to the life of the community” and the new “serious disruption to the activities of an organisation” carried on in the vicinity
• The offences that protesters might commit under ss.12 and 14 have been extended in that the prosecution no longer needs to prove they knew of the conditions; it is enough that they ought to have known.
• An increase in some penalties to 51 weeks, from three months, and fines on standard scale 4 (from 3).
• Broadening the geographical reach of the controlled area around Westminster AND adding obstructing vehicular access to/exit from the Parliamentary Estate to the list of prohibited activities (currently, broadly, amplified noise equipment and tens/overnight sleeping equipment) – and a power to list an alternative area in Regulations should Parliament re-locate temporarily.
• Abolition of the common law offence of public nuisance, replaced by a much wider statutory offence of intentionally or recklessly causing public nuisance.
• A new power to impose conditions on one-person protests in public places on similar lines to those above i.e. reasonable belief that the noise generated will seriously disrupt the activities of an organisation or cause significant impact on people in the vicinity.

Some general thoughts

• The range of planned changes is surprising, given the impetus for change – certainly one of the drivers – was the loss in the High Court by the Met in the Jenny Jones judicial review. It is hard to see how any will actually address the perceived problem. The issue there for the Met was their argument that a single officer could impose  London-wide conditions on XR. The High Court held that an officer had to be at every “scene” where conditions were going to be imposed, in order to assess the necessity on the ground each time.  This Bill does nothing to assist the Met on that specific issue…so why is it needed?

• Yet again, there is no explicit inclusion of proportionality as the gauge by which officers should test whether or not to impose conditions. Proportionality is a standard means for evaluating the balancing of rights against wider social interests, such as disruption to traffic or business, yet it is absent on the face of this Bill.

• This real problem for protesters and activists is not (always) so much the law – the legal rules and position – but how this is implemented and interpreted on the ground by officers; generally speaking the wider framed the law, even more widely used will be the operational power. As I put it in my recent Kings Law Journal article “Policing Protest in a Pandemic” (2021), “The reality of protest is often at odds with its legality”. Many might feel ‘chilled’ or might turn up but feel under an obligation to abide by what turn out to be legally invalid conditions. Very few will end up in court where, with appropriate legal advice, the conditions and/or arrests might be challenged.

• These changes follow the same evolutionary and restrictive path that we can trace back, say, to 1936 and the first Public Order Act to deal with Mosley and his Blackshirts, and to that extent come as no surprise. The opportunity once again to consider it all in the round, taking account of all interests and all voices – not just those institutional voices of the police, and indirectly here it seems local disrupted communities – has again been missed.

• Further, the Bill, like the Public Order Act before it, and like almost all public discourse around the protest and activism conceives it as an individualised play-off: protester(s) A against business(es) B and bystander(s) C, a bilateral relationship. There is little or no sense of the wider social value of a protest. Using this Bill to open up a discussion of who really benefits from protest, and thus who might lose from its being restricted would be enormously helpful.

• The greater increase in policing power is likely to come from not simply the changes but the changes allied to general preventive powers, combined with an expansion of discretion. For example, adding obstruction of vehicular access to/exit from, say, the House of Commons to the list of prohibited activities in the area, broadly amplified noise and tents/sleeping equipment is a great change. Both of those again broadly require some equipment whereas obstruction does not. It can be committed (Bill, cl 57(3)(a) “by the use of any item or otherwise”. Anyone in the area becomes a potential suspect, not just those with sleeping bags or loudspeakers. They can now much more easily be given a direction to desist, and failure without reasonable excuse constitutes an offence.

• The plans in effect to allow officers to impose conditions on assemblies (now of only one) and on public processions based on the likely noise disruption or impact bring similar, but greater concerns. The most obvious point I suppose is that protests are almost always noisy either because of numbers, or simply because of the fact that this is the way to communicate a message to bystanders, and to show solidarity between members. A power to regulate assemblies and marches simply because an office has the prospective ‘reasonable belief’ that the noise might have certain effects is in many ways an existential attack on the right to protest, one that might end up almost shifting the burden onto protesters – either, somehow, to say “we will be quiet”(!) or “the noise we make will not reach the level as to cause serious disruption or significant impact”.

• There is a new power which will allow the Home Secretary to make Regulations – with much less parliamentary scrutiny – that affect primary legislation, s.12 and s.14 of the POA 1986. It does so here by empowering the Home Secretary to define any expression in the following two terms “serious disruption to the activities of an organisation which are carried on in the vicinity” or “serious disruption to the life of the community”. This too is worrying.

• That protesters, if the Bill passes, would be liable to arrest for failing to comply with conditions that they ‘ought to have known’ about, what lawyers terms constructive or Nelsonian knowledge, will again only strengthen the hand of the state since the CPS (and before the police when arresting) no longer need to prove actual knowledge. Turning a blind eye to the obvious will not help.

• The Bill proposes to put the common law offence of public nuisance onto a statutory footing. While usually we would welcome such moves, it is hard to see what purpose it will serve as the old law had almost become redundant through being overtaken by  the spread of environmental protection offences and of offences relating to grossly offensive communications. This change revivifies an almost moribund offence, and provides prosecutors, and before them the police, with considerable latitude to take action. The offence will be committed by intentionally or recklessly causing serious harm (by act or omission with ‘serious harm’ defined as death, personal injury, or disease; or loss of or damage to property. The injury does not need itself to be serious – so would, say, include breaking someone’s fingernail – and neither does the damage. This new offence is therefore a prime candidate for use against almost any activists who does anything more than simply march or hold a demo – and even they might be covered since “serious harm” also includes ‘serious annoyance’.

EXECUTIVE SUMMARY: PROTESTING IN THE TIME OF CORONAVIRUS: CHANGES TO REGULATION 7 IN ENGLAND

The following summarises yesterday’s longer blog post, discussing the changes in England to Reg 7 (and to Reg 6) in The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 3) Regulations 2020 and can be read in conjunction with this submission to the JCHR.

1. The main shift will be to relegate Reg 6 – formerly the centrepiece of the lockdown powers – to be replaced by the prohibition in Reg 7 on gatherings. Reg 7 has as result been expanded and modified. Reg 6 formerly prohibited leaving one’s place of residence without reasonable excuse – with a non-exhaustive list of over a dozen examples. Non-exhaustive because it would be possible to argue X reason was a reasonable excuse despite not appearing in that list. Reg 6 is now a prohibition on staying overnight away from your place of residence without reasonable excuse. We, in England at least, are now able to leave our homes. That list remains broadly the same, but with, for example, the addition of exemptions for ‘elite athletes’ (Reg 6(1)(b)). Instead, the focus – in terms of preventing the spread, and keeping the R number (well) below 1 – is on how gatherings are regulated.

 

2. As from yesterday (1 June) Reg 7 now restricts us (in England) from participating, in either public or private places, in outdoor gatherings of more than six, and indoor gatherings of more than one (i.e. two or more). Instead of being constructed around the notion of reasonable excuse, this is missing. Instead, twelve exemptions are created. The list is therefore exhaustive (though this will be refined later in this paper).

 

3. There are constitutional concerns surrounding the urgent procedure by which the change in the law – not in primary legislation but in secondary legislation, a statutory instrument (SI), what barrister Tom Hickman QC typified on Twitter as “abracadabra governance.

 

4. The full package of measures includes criminalisation in Reg 9 – the creation of a definition of criminal offences, allowing for formal arrest, charge and prosecution – and informal enforcement powers in Reg 8, whereby police officers can direct someone to return home or leave a gathering.

 

5. The main change in Reg7 is that it now covers gatherings in private as well as public places but expands, outdoors, the maximum number from two to six while at the same time reducing, indoors, the maximum from two to one. Reg 7 formerly did not distinguish between indoors and outdoors (largely because of the restrictions on leaving one’s house in Reg6 rendered that largely unnecessary).

 

6. There is now a little more clarity on what constitutes a gathering – a term not generally used previously in domestic legislation, which has favoured the more widely used ‘assembly’. Under Reg 7 as amended, a gathering is where two or more ‘are present together in the same place in order to engage in any form of social interaction with each other, or to undertake any activity with each other’.

 

7. On first reading (and several subsequent ones), the first more specific – “engaging in any form of social interaction” – is subsumed and thus covered by the latter more general “undertaking any activity”, with engaging in and undertaking being near-synonyms.

 

8. While meeting/conversing/interacting on-line would seem to be covered by virtue of the fact that the internet is a ‘place’, a privately owned one – and so seemingly brought within the Regulation for the first time by this change – it occurs neither indoors nor outdoors, so on-line activity and (political) organising remain outside the scope of the restriction.

 

9. The new definition offers no real help on how we identify a gathering – how close must two people be before they “gather”? I hold to my earlier view that, since these Regulations were introduced for health-protection reasons, that is the guiding interpretative principle. From that it follows, that two people more than 2m apart cannot constitute a gathering. Even then, is that, and should that be the test or the only test? Reg 7 refers not simply to gathering, but to participating in one. In turn, this connotes – something Dr Geoff Pearson pointed out to me earlier – if not some mental element than something more than happenstance congregation, some deliberate act of coming together. I think this is what would allow us to distinguish various early morning commuters all waiting at the bus stop. I have revised my view from yesterday – I think this provides a more plausible route out than attributing to the words “with each other ” as I put it yesterday ‘ form of active conjoining rather than simply locational co-incidence’.

 

10. The inclusion of private indoor places and limiting it to one means that I am unable to have even a single guest in my house. The reduction in maximum numbers from two to one here is minimal. The effect of what was formerly Reg 6 meant that very few of us would have had good reason to be in someone else’s house such that while a gathering of two of more in a private indoors place was lawful under Reg 7, it was not under Reg 6. It does now expose us both (since we are both ‘gathering’) whereas previously the householder (such as Prof Neil Ferguson) was not in breach of the Reg 6 prohibition on leaving their house. As many have pointed out, the one person limit has an arguably disproportionate effect on the family life (i.e. under Art 8) of those who do not live with each other in the same household.

 

11. It also opens up – or perhaps does not close down – the opportunities for policing of private places, matters always for policing discretion. They can choose to police private indoor places, or choose not to – and there may well be groups who will be or might feel likely subject to greater, invasive policing.

 

12. One such group might be political activists, a few seeking to plan and organise. While the police have long some power to enter private premises such as a meeting hall (Thomas v Sawkins, 1935) that was limited to cases where they suspected an imminent breach of the peace. Reg 7 has the potential to allow much greater levels of policing of political activists should the police choose. That is a worry.

 

13. The new rules also produce this counter-intuitive result, one that flies in the face of the health-related purpose that must underpin the Regulations, or their interpretation: up to six people can gather with impunity outside. Strangely, this means that a household of five together can only gather with one other person – hosting a BBQ in the garden for example – but a person living alone person can invite five others; the health risks are very different. The explanation must be the ease and effectiveness of policing and enforcement.

 

14. There are interesting issues around the choice of slightly different structure to Reg 6 and Reg 7. As we saw above, not having a reasonable excuse is part of the definition of the restriction on (now) staying overnight. For Reg 7, covering gatherings, it is not part of the restriction/prohibition but of the offence: under Reg 9 it is only an offence to gather if I do so without reasonable excuse. Why does this matter? Mainly because much of the policing of the Regulation will not be by formal charge/prosecution but informal enforcement, utilising powers to direct in Reg 9. This allows officers to take action where they consider someone is contravening either Reg 6 or Reg 7; it is only for Reg 6 directions then that the officer must also consider the reasonableness of any excuse since that comprises part of the restriction.

 

15. Why then might that be important? One reasonable excuse that (especially) a protester or someone not able to see their partner could use would be that not allowing them deprives them of their ECHR right, under Arts 10/11 or Art 8: my reasonable excuse for gathering is that I am exercising my Convention right to assemble and protest peacefully. That avenue is foreclosed for informal enforcement, though remains open if charged and prosecuted under Reg 9. Another route to try to secure protection would be that the scope of the term “gathering” should be read (utilising s.3 of the HRA) so as to exclude gatherings that would be protected by Arts 10/11 as expressive assemblies.

 

16. All of which leads on finally to the matter of protesting and where this change leaves the right to protest in England in light, for example, of arrests made of XR protesters in London over the weekend of 30 May, with Black Lives Matter protests ongoing and scheduled for this coming weekend across the UK.

 

17. There is nothing in the Regulations, or anywhere else (there has been no derogation) that restricts the rights we all have, in the ECHR and under the HRA, peacefully to assemble and protest, under Arts 10-11. The Regulations, and Reg 7 especially, must be interpreted (if matters go to court) and put into operation by police officers bearing in mind their statutory duty to act in an ECHR-compliant manner. This is contained in s.6 HRA, a piece of primary legislation, and therefore of greater constitutional standing or value than the Regulations in a statutory instrument. One route would be to suggest, if challenged or questioned, that groups of protesters more than 2m apart do not constitute a gathering in the sense the term is used in Reg 7. Twenty, fifty, one hundred of us all 2m+ apart are not gathering. Such a reading preserves the constitutional value of politically participative protest, over and above (say) the value of social or recreational value of six friends having a BBQ.

 

18. The point to be made is this – though I’d concede that persuading an officer ‘on the ground’ to accept will be difficult, given that the amended National Police Chief’s Council Guidance Note is silent on the matter. How and why – bearing in mind we are thinking solely in health related terms, not public order – can a group of ‘socially distanced’ six friends meet for an afternoon BBQ at the river and stay outside long into the evening (there is no time limit in the Regulations or in Government Guidance) but a group of seven or eight political activists cannot hold a twenty minute vigil 2m apart on the steps of a Town Hall this weekend to mark the death of George Floyd in Mineapolis. That seems an indefensible distinction, one that does not properly recognise the value of free speech and peaceful assembly, nor protect it.

 

 

PROTESTING IN THE TIME OF CORONAVIRUS: CHANGES TO REGULATION 7 IN ENGLAND

I have written about the restriction on ‘gatherings’ in Reg 7 of The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 3) Regulations 2020 previously, and submitted evidence to the JCHR on it as well. The focus of most previous commentary has been on Reg 6, imposing what is usually referred to as a ‘lockdown’, prohibiting us (in England at least) from leaving our homes except with good reason, ’reasonable excuse’. There was little need to dissect Reg 7, or for it to be applied, since we were all, in general terms at least, forbidden from being outside. That, of course, is rather a simplification: Reg 6 identified many instances of what would be considered a ‘reasonable excuse’, as well as the general catch-all. The harshness of the general prohibition was ameliorated too by relaxation on 13 May, by allowing us to take exercise and visit public open air spaces with someone else.

 

Today, changes were made (subject to Parliamentary approval within 28 days) the result of which is to place Reg 7 firmly in the spotlight, and very much to relegate Reg 6 to a bit part. We, in England at least, are now able to leave our homes; the restriction now is that we must not stay overnight somewhere else, unless we have a reasonable excuse. That list remains broadly the same, but with, for example, the addition of exemptions for ‘elite athletes’ (Reg 6(1)(b)). Instead, the focus – in terms of preventing the spread, and keeping the R number (well) below 1 – is on how gatherings are regulated.

 

Others have commented on the constitutional dynamics that arise from the way these changes came about: published late on a Sunday afternoon, to come into effect at 11:30 the following day, excluding Parliament from any ex ante scrutiny, using the urgency of the need for the measures, what barrister Tom Hickman QC typified as “abracadabra governance”. I do not propose to add to that, other than to express agreement.

 

 

 

Instead, I want to offer a few thoughts on the new, fleshed-out Reg 7, outlining where it differs from the previous iteration and suggesting what seem to me to be ongoing areas of concern.

Formerly, gatherings of more than two in a public place were prohibited (with attendant criminalisation in Reg 9 and enforcement powers in Reg 8) unless one of four exemptions applied: same household, essential for work purposes, to attend a funeral, or was reasonable necessary to facilitate a house move; to provide care or assistance to a vulnerable person; to provide emergency assistance; or to participate in legal proceedings/fulfil a legal obligation. The new prohibition retains some elements of that. The list of permitted reasons to exceed the restriction on gatherings is exhaustive; there is no general caveat of “reasonable excuse” with examples of what might constitute it. Since Reg 7 will be doing much more of the legwork, replacing in effect the general prohibition on what was old Reg 6 – which was drafted in that manner – this is surprising. However, while the prohibition is absolute subject to those listed exceptions, Reg 9 which creates the offence of contravening the prohibition on gathering does include a ‘reasonable excuse’ defence. This offers the possibility of seeking to argue that the protected Convention right of freedom of assembly/freedom of speech (in ECHR Arts 11 and 10 respectively) – effectively a right to protest – constitutes the reasonable excuse for gathering. I made this point in my evidence to the JCHR (para 10). Another route by which to render the Regulations ECHR-compliant would be to argue that the scope of the term “gathering” should be read (utilising s.3 of the HRA) so as to exclude gatherings that would be protected by Arts 10/11 as expressive assemblies. Those two routes should avoid the alternative (should a case be brought) of declaring Reg 7 incompatible with those two protected Convention rights. That would mean, since they are contained in secondary legislation, there would be no question of a court “only” declaring them incompatible under s.4 of the HRA; issues of parliamentary sovereignty, at the heart of the s.3/s.4 scheme, do not obtain. Regulation 7 would be susceptible to being struck down, of no effect.

 

 

Some of the points I raised in that submission and my earlier blog post have been dealt with, although not necessarily satisfactorily. There is now greater clarity on what constitutes a gathering – a term not generally used previously in domestic legislation, which has favoured the more widely used ‘assembly’. Under the Regulations as amended, a gathering is where two or more ‘are present together in the same place in order to engage in any form of social interaction with each other, or to undertake any activity with each other’. This begs more questions than it forecloses.

 

1. The first “engaging in any form of social interaction with each other” is presumably rendered otiose by the latter – “any activity” must encompass “social interaction”. Why then might the drafter have chosen a specific and a general? I did have a rather detailed, and likely very dull, attempt at an explanation – seeking to draw out subtle differences but in truth I suspect that using two near-synonyms is simply surplusage, belt and braces. The alternatives must be read as interchangeable, with the latter, general ‘undertake’ – to enter/embark upon, to begin – taking precedence over ‘engage’ (to embark on any business’; to enter upon or employ oneself in an action).

 

(For those interested, I was exploring whether the purposive ‘in order to’ might be disjunctive:  gathering is either two or more who are ‘present together in the same place in order to engage in any form of social interaction with each ‘ OR that it is two or more who are ‘present together in the same place to undertake any activity with each other’. The former would imply two (or more) with synchronicity of location and intention i.e. two people together at place X plan/intend/have as their purpose to have some form of social interaction, but are currently doing nothing together. The latter ‘only’ covers those who are together in one place and are actually undertaking an activity with some other person It is hard, in truth, to see what is added by taking such a precursor, inchoate approach to the wording OR, if such an approach is mandated by that strangely but deliberately constructed phrase, then it is overly broad, capturing too many activities and/or allowing too much policing discretion and creating too much uncertainty. The alternative angle I explored was that ‘undertake’ can also mean commit to future action such that a gathering is either two or more who are ‘present together in the same place in order to [so that they may] engage in any form of social interaction with each other OR that it is two or more who are ‘present together in the same place in order [so that they may] undertake [commit to doing] any activity with each other’. Again, it is hard to see what is added by each.)

 

2. Being present together in the same place – might this now include meeting/conversing on-line? If not, why not – is it that the internet is or, or cannot be “a place” (and is either no place, or all places?) There is much written on that to gainsay that approach. In the US, Justice Kennedy described the internet as “the modern public square” (Packingham v North Carolina 137 SCt 1730, 1737 (2017)). Is it that no one is present together – there is always a microsecond (at least) between A posting on say Facebook or Twitter, and B seeing it, or replying, or liking? The matter did not arise under Reg 7 in is first guise, as that only prohibited gatherings in a public place, and so did not bite upon virtual gatherings.

 

3. The definition does not really help us identify what activities might sensibly be prohibited – what is the real target of the new rule? – so that we might avoid doing them. Perhaps, put another way, the word ‘with’ is being asked to do a lot of heavy lifting – if I am at a bus stop, waiting for No.37, and there are six others there too, am I not engaged in the activity of “waiting” with them? Am I not ‘with’ other supporters in the away end at Carrow Road? It would not be a stretch of normal use of English to describe it thus, but to obviate such over-reach (or what we might presume is unintended overreach) does ‘with’ need to encompass some form of agreed activity rather than simply meaning “alongside” or even “near”, some form of active conjoining rather than simply locational co-incidence?

 

 

The major change in the Regs is the inclusion now of all places, both public and private. My earlier criticism (JCHR evidence, para 21) – that there was no definition of “public place” – obviously falls by the wayside. The extension probably provides an answer to the question at 2. above since it further goes on to identify the rule as covering (i) public or private indoor places and (ii) public or private outdoor places. In other words, though the internet and a webpage are a place, and a private one at that, they are neither indoors nor outdoors (at least not as defined elsewhere in the Regs). Nonetheless, there are a few concerns.

 

First, we should note that the prohibition formerly applied only where more than two people gathered in a public place. Now, in indoor public and private places, it covers any gathering of two or more i.e. once I am no longer alone in my house or any other ‘substantially enclosed’ (Reg 7(3)(b)) indoor place. To some extent, this change is simply replicating the previous Reg 6 scheme; while I am no longer barred from leaving my home, I am barred from going into anyone else’s unless say it is for work. The end result is the same – households remain in indoor silos. While previously (subject to the general ban in Reg 6) I could have invited someone into my kitchen or my garden, I can now only invite them into my garden. The rationale is clearly the notion that the risk of spread and infection is far greater inside than outside. It does produce interesting results. As many have noted on Twitter, it still prohibits couples who for a variety of reasons might live in separate households from meeting in the house of one of them and, indeed, prevents two people who are not in the same household (i.e. partners living together) from having sex with each other indoors at least. Though, as one commentator noticed, it does not prevent A inviting B into their home for sex and B paying for it, as that falls within the work exception for A! (NB – I have tried to find out who this was, I read it in passing, but cannot now do so; very happy to attribute). The new rules also produce this counter-intuitive result, one that flies in the face of the health-related purpose that must underpin the Regulations, or their interpretation: up to six people can gather with impunity outside. Strangely, this means that a household of five together can only gather with one other person – hosting a BBQ in the garden for example – but a person living alone person can invite five others; the health risks are very different. The explanation must be the ease and effectiveness of policing and enforcement – in outdoor places, it is simpler to count and see of the gathering numbers more than six, rather than complicated questions about relationships to each other. If the gathering numbers more than six (outdoors), then the (policing) question arises: are you all in the same household? The Regulations say nothing here about onus of proof. It is here that we reach a structural problem with the design of the Regulations.

 

Regs 6 and 7 do not create offences, or allow for enforcement. They impose requirements of restraint – formerly a prohibition on leaving one’s place of residence, now staying overnight at someone else’s, and on certain gatherings. Reg 9 creates the offence – comprising a reasonable excuse defence for Reg 7, it being absent in the requirement (as I discuss above) and a strict liability offence for Reg 6 but which itself does include it (in both an overarching claw-back, and with over a dozen illustrative examples) so the end result is the same: both offences can only be committed where someone ostensibly in breach does not also have a reasonable excuse. Whether we view “reasonable excuse” as part of the requirement (Reg 6) and thus part of the actus reus or, as with Reg 7, a defence to be raised by the accused matters only in that if it is a defence, some prima facie evidence has to be adduced in order for the matter to be live. The legal burden – proving beyond all reasonable doubt that there someone had no reasonable excuse – remains with the Crown. However, that might not in practice matter very much, because of the way the enforcement power in Reg 8 operates. Much of the policing of the Regulations relies not on formal court processes – charging for one of the various crimes – but through police officers being able to direct someone to return to the place where they live, or remove them there (where the officer considers they are contravening Reg 6) or directing gatherings to disperse, as well as directing people to return to the place where they live or removing them there (where the officer considers they are contravening Reg 7). It is here that the structure matters. Where a reasonable excuse is contained within, or as part of, the definition of the restriction, as it is in Reg 6, then an officer in order to act lawfully must not only consider whether someone is away from the place where they live (old Regs) or staying away overnight but also whether they might have a reasonable excuse. Where the existence of a reasonable excuse is not an integral aspect of the requirement, but only of its criminalisation (in a separate Regulation), they need not consider whether there is a reasonable excuse for the gathering.

 

To develop this further, even if, as I argued above, exercising my right to protest and assemble peacefully (under Art 11) might constitute a reasonable excuse, there is no need for an officer to consider as part of the process of lawfully directing a gathering to end. (As an aside, and rather technically, there are here issues to be explored around the duty in s.6 of the HRA, on officers not to act or reach decisions which disproportionately restrict those rights, but read in light of the “outcomes are all” approach at the heart of Begum [2006] UKHL 15 alongside, most recently RR v SoS for Work and Pensions [2019] UKSC 52).  For those who feel that policing decisions – to remove, and to direct a gathering to end – have wrongly deprived them of their statutorily-guaranteed rights, the solution can only be ex post and to the courts. One final point on this aspect: if today’s changes do herald a shift onto Reg 7 as the linchpin of enforcement, at the expense of Reg 6, we should bear in mind Reg 8(1). This remains unchanged and allows relevant persons, such as police officers, to “take such action as is necessary to enforce any requirement imposed” by Reg 7. There is no such power, with such width, to secure compliance with Reg 6. I would assume that necessary would be read as “proportionate” adopting on very different facts admittedly the approach that the House of Lords took to “necessary” in s.10 of the Contempt of Court Act 1981, where there was a risk to journalistic freedom: Ashworth Security Hospital v MGN Ltd [2002] UKHL 29 [61]-[62].

 

 

I’d like to conclude with some thoughts on where this change leaves the right to protest in England in light, for example, of arrests made of XR protesters in London over the weekend of 30 May.

While the amendment offers a little more insight into what constitutes a gathering, it fails to resolve the one, critical matter: how close must I be to someone else to be “gathering” with them? This is a point I made in my earlier blog, and submission to the JCHR. In short, the argument I made was that, given these regulations have been made under health prevention legislation, they must be read subject to that, not as public order provisions. From that should follow this conclusion: if I assemble or meet (certainly outdoors) more than 2m from someone else – and certainly if this is not for any great length of time – I am not acting unlawfully, as I am not ‘gathering” within the meaning of that word in the Regulations. Twenty, fifty, one hundred of us all 2m+ apart are not gathering. Such a reading preserves the constitutional value of politically participative protest, over and above (say) the value of social or recreational value of six friends having a BBQ – where, we should note, there is no time limit in the Regulations. Government Guidance, amended to take account of today’s changes, tells us little more, and neither does today’s amended National Police Chief’s Council Guidance Note. Noticeably, they make no reference to protest gatherings, not to any Convention-protection or indeed Convention-impact such as for example (and again noted by many on-line commentators and contributors) the impact on family life of partners in different households not being able to meet. The omission of both is not surprising. However, while we can explain the difference on grounds that bright lines facilitate ease of policing, in order to withstand HRA scrutiny, Government (if challenged) would need to be able to explain how and why – and solely in health related terms, not public order – why a group of six friends can meet for an afternoon BBQ and stay outside long into the evening provided they remain ‘socially distanced’ (i.e. 2m apart, though this is not in the law, the Regulations, but only in the soft law Guidance) but a group of seven or eight political activists cannot hold a twenty minute vigil 2m apart on the steps of a Town Hall this weekend to mark the death of George Floyd in Mineapolis. That, to my mind, seems an indefensible distinction.

Human Rights in the Media: Fear and Fetish

“They Offer You a Feature on Stockings and Suspenders Next to a Call for Stiffer Penalties for Sex Offenders”: Do We Learn More About the Media Than about Human Rights from Tabloid Coverage of Human Rights Stories?

Last week, in responding to a letter from the House of Lords EU Justice Sub-Committee about references to the ECHR in the Political Declaration, the Government failed to give assurances that it will not repeal or replace the Human Rights Act. The Parliamentary Under-Secretary of State for Justice simply re-asserted the 2017 manifesto pledge, not to do so while Brexit is underway: it was right that we “wait until the process of leaving the EU concludes before considering the matter further in the full knowledge of the new constitutional landscape.” The letter, from 4^th January, is here. As the Sub-Committee pointed out, this is in stark contrast to its proclaimed commitment to ‘shared values of respect for human rights and fundamental freedoms’.

Fully leaving the EU – in March 2021, if there is a two-year transition – then brings the double whammy, removal of EU Charter rights, and the possibility of revamping and dilution of the HRA. The Government did confirm its commitment to the ECHR, setting out that there no plans to withdraw from the ECHR. Whatever debates are to be had over the HRA – its operative scheme or its scope and extent – sensibly these should be informed. A timely new book – published this week, on 24^th January, by Routledge – poses questions about the accuracy of media coverage. Human Rights in the Media: Fear and Fetish, edited by Michelle Farrell, Eleanor Drywood, and Edel Hughes stems from a conference organised by the School of Law and Social Justice at the University of Liverpool a few years ago on media coverage of human rights cases and issues. The content, including a chapter by me, are below:-

My chapter builds on some previous work, contained in this book, published by Hart in 2015, but includes two novel aspects. First, it offers a semiotic, Barthesian decoding of the following, by now infamous, red top front page, noting the way the paper portrays human rights as something not currently of value for individuals like you and me – all those on the right of the picture, the silent majority, are identified by first names (and ages) to facilitate that assimilation – but as something that protects people who are distinguished only by some collective shared criminal identity, necessarily demarcating them as outsiders, as having rejected society and its norms.Secondly, it discusses the results of an empirical content study that I conducted into coverage by the Daily Mail of one, hotly contested human rights issue: the (non-)deportation of foreign criminals, following conviction, on human rights grounds. Of 35 stories in the paper over a two-year period about named, identifiable individuals, just over 88% of them showed them being able to avoid deportation – a success rate for the Home Secretary of just over 11%. Official Home Office data for an overlapping three-year period (admittedly now several years ago) showed almost the opposite: on average, the Home Secretary succeeded in 81% of such cases: in only  19% of cases was the FNO (foreign national offender) able to remain in the UK. At the time the chapter was written, The Sun and the Daily Mail had a combined readership of 3.3m, and the Mail Online 14.3m hits. It is a massive problem, one on which I gave evidence to the JCHR over the summer as part of its “Enforcing Human Rights” inquiry since it is not a problem that can easily be solved by a regulator. It is not that the reporting is inaccurate or false – does it conform to independent records? – but is rather, as the communications theorist Dennis McQuail put it, one of completeness: are the facts sufficient to constitute an adequate account? The chapter includes further empirical research on the (non-) reporting of ECHR judgments, as well as discussion of various techniques of distortion that I identified in that earlier book. These are pre-emption (reporting cases too early in their life cycle but portraying them as establishing a binding ruling); prominence; partiality (in sources); and phrasing of stories, alongside three new ones:  lies, damned lies and statistics; repetition for reinforcement; and what I term an Unverfremdungseffekt, a reversal of Bertolt Brecht dramaturgical ideas about alienation. The chapter concludes  that “the least the HRA deserves is a clean fair fight – not one encumbered by misreporting, misconception, and the misconstruction of reality.”

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”.

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,

TOMORROW’S CHIP PAPER – THE TABLOIDS & THE HUMAN RIGHTS ACT

Yesterday I gave paper at the Newcastle Law School, part of some ongoing work looking at media representations of human rights cases and issues. The paper’s title was “All wrapped up in tomorrow’s chip paper – what do we learn about the reporting of human rights by British newspapers?”. The abstract is below

 In this short blog, I am not planning to set out the paper in full but thought it might be a helpful contribution to the debate about possible repeal of the HRA to set out some of the findings I have made. In particular, this shows how skewed Daily Mail reporting in relation to deportation of foreign criminals is. The paper does not argue why this might be but simply asserts that regular readers of The Daily Mail will have a very different idea of the likelihood of a foreign criminal being deported at the end of the their sentence that is the reality. In short, of all such stories in the paper (or, in fact and more accurately on-line) for a one year period (ending last week) – and there were 31 – 83.8% indicated very clearly that the Home Secretary’s attempt to deport was defeated on human rights grounds. This compares to an historic four-year mean (2009-2012) of 17.6% success rate for claimants, based on the Home Office’s own data. In fact if we included the massive drop in the %age success rate for claimants in both 2013 and 2014 (at 5.4% and 0.17% respectively) the mean is much lower, but there are good reasons to exclude these. Put another way, the regular reader of The Daily Mail – assuming they both believe the stories and digest them into a probability! – would think of every 100 attempts to deport, the Home Secretary wins a shade under 17. In fact, the reverse is true: of every 100 deportations attempted by the Home Secretary, foreign criminals successfully oppose only, on average, about 17. The Home Office data – in the form of a Parliamentary answer to a question asked by new MoJ Minister, in charge of HRA repeal, Dominic Raab MP – is set out below

As the manifestos were published in the run up to the election, I blogged about the fact that the Tories had placed their pledge about repealing the HRA in the section on crime, specifically about victims of crime (alongside placing it in the section on the EU) – and not in that section of the manifesto devoted to constitutional matters, or citizen and state. What seemed a bit of a puzzle now starts to make sense. Reason replaced by rhetoric backed by the reproduction of unreality – the sort of thing that leads to moral panic, to a clamour “to do something”. Well that something – a British Bill of Rights and loosening of ties to Strasbourg – is now well and truly upon us. Let’s hope that tomorrow’s chip paper is not the parchment of the HRA

SAME OLD, SAME OLD – THE CONSERVATIVE MANIFESTO AND THEIR PLANS FOR THE HUMAN RIGHTS ACT

In yesterday’s Conservative manifesto, we finally see what the party proposes to do about domestic human rights protection if re-elected as a majority Government in a few weeks time. If they are forced to form a coalition with the Lib Dems, the plans are likely to fall on barren ground, as they have since 2010. Though the LibDem manifesto is not quite out, at the time of writing, they have made clear their commitment to the Human Rights Act throughout, though with some opacity in recent weeks: see this speech by LibDem Justice Minister Simon Hughes at Kings College London a few weeks back. Thanks to James Lee for pointing me towards it.

Mark Elliott provided his usual clear analysis of the Conservative plans while the ink was still wet on the manifesto yesterday and I don’t plan to repeat much of that. It seems to me though that one further point is worth making.

This relates to the location of the commitment in the manifesto. It is not to be found in a section on the constitution, or on rights or on the citizen or on democracy. In its 2010 “Invitation to Join the Government of Britain” (which I politely declined) the commitment to replace the HRA with a British Bill of Rights was in the “Change Politics” section. Labour’s 2015 commitment to retain the HRA is in the section of the manifesto headed “Reforming government to give more power to people…”. The Greens have placed their same commitment in “Government and People”.

Instead we find the HRA, the European Convention and the Strasbourg Court in two places. The first locates the discussion in a section on “Fighting Crime and Standing up for Victims”. The second in “Real Change in our Relationship with the European Union”. This tells us much.

Either there is no one in the Conservative Party with the responsibility for the drafting and checking, and ultimately approval, of the manifesto who knows the Convention (and thus the HRA) has nothing to do with the EU or they do, but simply decided, knowingly to include it there anyway. The latter means they deserve our total contempt – seeking to elide and to confuse, the tired old, same old “Europe is singularly bad, let’s get out of both”, pandering to a narrative of misplaced fear, linking it in the minds of voters to the bogeyman of EU immigration. The former means they simply do not deserve our vote – they cannot be trusted to run HMG Foreign Policy if they do not know the scope of what falls within its aegis. It is both frightening and woeful in equal measure, a mistake I seek to drum out of the minds of my 1^st year law students, not one we’d expect to see in document seeking our consent to being governed.

Locating the plans for repeal of the HRA within a narrative about crime and victims is equally mendacious – and about a subtle as a brick lobbed through a window before a burglary. It is speaks to another discourse of fear – not one premised on unlimited immigration, of Romanians coming over and taking all our jobs, schools, hospitals, lottery tickets, car parking places, spots on the beach etc etc – but a fear of being attacked, of being subject to terrorism, of being robbed. It is singularly narrow and comprehensively mistaken in its assessment of the proper role and effect of the HRA over the past fifteen years or so.

While it is undoubtedly true that the ECHR, and thus the HRA, confers certain rights on criminal suspects – oh, I don’t know let’s call them “fair trial rights” – in Article 6, primarily, it is nonsense to think that this is some alien invasion. One of the few remaining aspects of Magna Carta still “on the books” relates to criminal trials and the dispensing of justice, that it should not be sold, denied or deferred. We have seen too that the common law protects “criminals” most recently by the Supreme Court in Osborn v Parole Board, requiring that prisoners have an oral hearing before release decisions are taken. Furthermore, there has been a clear and marked expansion of victims’ rights using the HRA itself: absent Article 2, there would be no right to a McCann independent investigation into deaths – the common law not requiring such; only by virtue of the HRA – and Arts 3 and 8 – have victims of crime been able to seek accountability from the police for their failure to investigate and prevent crime, as the High Court held in DSD last year, the so-called “black cab rapist case”; lastly, it is the HRA that has allowed victims of crime to challenge prosecution decisions by the CPS (see last month’s NXB decision as an example, albeit lost on the application of the law).

The case that the HRA has led to the citizens of the UK being regularly and continuously being exposed to the repeated threats from criminals we cannot deport after release has being hyperinflated by media coverage, or by certain elements of it. An earlier post of mine on this blog related some empirical research I had conducted. In broad terms, readers of many UK newspapers, both tabloid and broadsheet, are painted at best half a picture and more likely a totally different picture of the reality of human rights cases and litigation both domestically and before Strasbourg. That research showed that large numbers of cases where the UK succeeded before the European Court simply never made the press – skewing us to think the UK largely lost. More pertinently for the instant point, I studied a year’s worth of Daily Mail coverage of the deportations of foreign criminals. I found the paper massively over-reported the number who successfully avoid deportation. Of 21 stories for that year only two were about or told the tale of the Home Secretary’s success. The other 19 were in various guises how the UK was forced to let them remain. This portrays a success rate for the applicants of some 91.5%. Even on The Daily Mail’s own figures the reality is a success rate of about 33% and the Home Office’s own data (admittedly for the previous year) indicated a success rate of about 24%. It is no wonder that readers of The Daily Mail believe the only alternatives to a life bedevilled by foreign criminals (coming over here doing our own out of a job) are to remain indoors and lock all the doors, or to repeal the HRA.

My last point is the dog that didn’t bark. With the pledge situated in those two sections, readers of the manifesto, will not know about the everyday strengths of the HRA, how it has beyond any doubt improved the lives of many, many of our fellow citizens:

• the elderly couple who used the HRA to ensure that they remained together, housed in the same old people’s home;
• Beth Warren who is now able to have longer time than the statutory framework allowed to decide whether or not she’d like to use her deceased partner’s sperm to found a family;
• the parents of Joanna Michael, able to use Article 2 to found a claim against the police who failed to respond quickly enough to their daughter’s 999 call such that she was murdered by her partner – and when at common law the Supreme Court upheld police immunity from suit;
• the relatives of those who died at the Mid-Staffs hospital, able to use the HRA first to persuade the government to hold a public inquiry and then to obtain compensation

More widely speaking, in 2010 the Conservatives framed their pledge about HRA repeal with this: it would be done in order to “protect our freedoms from state encroachment”. Five years is a long time in government. From its location in the manifesto now we can only conclude that the Conservatives clearly do not currently see the HRA or human rights more generally as being a constitutional issue – as being about the control of government, about limiting the sometimes natural majoritarian (and populist) excesses of Parliament, and as being about the consensual relationship between citizens and state under which the basics of both human existence and human flourishing are so foundational as to be beyond peradventure. If a portrait can paint a thousand words…

QUIS DEBIET IPSOS CUSTODES? THE REAL COSTS OF THE COST OF PROTEST

Two news items caught my eye over the weekend, both on the same topic but each identifying very different outcomes. The Midlands Express and Star reported (9^th February) how the residents of Dudley were left to “pay the price of EDL protest” as local business lost hundreds of thousands of pounds when the shops closed as a result of a lock-down. The Observer the previous day reported that climate change protesters had been told to hire their own private security, the police no longer agreeing to facilitate the temporary closure of roads along the agreed route. In short – and obviously I imagine – both these stories shed light on who bears the cost of protest.

 

The focus of this short post is on the second story, though by implication it touches the first – since that in many ways is the reverse. The crucial point is that this chimes with a recent trend documented by many, including a piece I wrote in Public Law in 2013: the privatisation of protest regulation ([2013] PL 100). The historic norm has been for regulation though criminal sanction and administrative decisions – think here of s.5 of the Public Order Act 1986 (abusive or threatening language) or of ss.11-14A of the same Act dealing with conditions and bans on both processions and public assemblies. Recent years however have seen the rise, in the UK and globally, of harassment injunctions, of libel claims by “wronged” companies, and of suits to recover damages for economic loss, to name but three. All of these – this shift from public regulation by the police to private law regulation by those directly harmed by protest and direct action – come at a cost: accountability, transparency and financial. Protesters no longer have public funding via criminal legal aid and are exposed to litigation strategies brought by companies as “repeat players”, in Marc Galanter’s words. As and when cases get to court, plaintiff companies need only prove the matter on the balance of probabilities, the civil law test, and may do so adducing hearsay evidence, admissible in civil claims much more easily. In short, protesters who engage in anything but what we might typify as “traditional” banner waving marches and assemblies run the risk of being sued. There is not, for example as there is in employment law, a “golden formula” protecting those engaging in legitimate peaceful, albeit disruptive, protest from legal claims. In fact, the opposite applies. The UK does not yet have quite the same experience of SLAPPs, but there are signs that certain companies have not ignored the potential to bring (what will ultimately be) unfounded claims to silence protesting dissenters, and to tie them and their resources up.

 

If protesters, seeking to engage in that most traditional form – a march along a High Street – are henceforth to fund and employ their own security, three points seem immediately evident. First – and while this might seem narrowly doctrinal, it is incredibly important – they will have no Human Rights Act remedies or claims against ProtestProtection plc. Such a company will undoubtedly not be, as the police undoubtedly are, a public authority. They will, as such, owe no public law duties to any of the protesters or indeed to any bystander – for whatever restrictions they impose on their Convention rights under Arts. 10 and 11, or for kettling them (though of course Austin excuses the police generally anyway). Instead, the law assumes that the protesters would be able in advance to insist on such terms in whatever contractual arrangement it manages to reach. While this may or may not be both realistic and actually achieved, it betokens a narrow and theoretically flawed way of thinking about rights: both that you literally pay to exercise them and that you contract to have them. It is of course in keeping with our neoliberal times: if you cannot afford a public good – your human right – you cannot have it.

 

That really leads to the second point. If it is right that protesters can be made to pay, it leads to a reconceptualisation of the right of protest that is not one based on public utility and social value – a right with a justifiable claim to instrumentality – but one founded on its intrinsic worth only to those individual participants. We thus move away from Meiklejohnian notions of protest and free speech (putting aside for these purposes arguments about whether the former is separate fro, or sub-category of the latter) – that it is valuable because it contributes to an informed self-governing participatory electorate – and we veer instead towards Dworkinian ideas about autonomy and dignity, very individualised asocial goals. Whenever rights are constructed as absent any element of the public, they struggle whenever battle is fought against rights or claims that can (more easily) be constructed as containing them. I have written about this in the context of privacy vs. free speech ([2006] EHRLR 541). That argument of course is one founded more on, or concerned with, doctrinal, even practical precepts. The wider, better argument is surely that constructing protest as being about private entitlement misconceives the very nature of the right, and its goals, from the outset, a concern that is more existential. In short, it conveys a view of protest that is devoid of any meaningful public interest.

 

That leads to our third point. It creates a system of two-tier protection, rights for those who can afford to pay – and are willing to pay – and no rights for the rest of us. It pays no regard to the importance of the contested topic (if such matters can be ranked) and no account of the alternative means open to the group. It assumes a single, blue-line criterion for exercising rights – resources. It avoids questions, bread and butter to human rights lawyers the world over, of proportionality, setting up the ability to pay for the protest instead as the single demarcation of its likely realisation. When previously restrictions – bans or conditions on marches and demonstrations – would be assessed by means of balancing the rights claimed against, say, the disruption caused, we now have no assessment at all of such questions. The precursor to legitimacy is the bank balance. There is no value at all in a system of rights-protection that prefers ability to pay over social utility – that privileges privilege, in other words. Such a system runs the risk – in purely doctrinal ECHR terms – of falling foul of the non-discrimination guarantee in Article 14, as well as being open to those wider, more theoretical concerns. Alternatively, and counter-intuitively, as Val Swain pointed out to me, it creates a two-tier system around “good” and “bad” protesters. Those protests which the police categorise as unlikely to result in trouble will not be policed – that is the case for the climate change protesters here. Those whose marches and demos – the EDL perhaps in that other news item above – will have free-at-the-point-of-delivery state assistance. That cannot be right on any legitimate basis – and the risk of it backfiring is self-evident.

 

This creeping trend in respect of protest – is there another right that those engaging in it are forced to pay before enjoying it? – runs counter to the long-standing jurisprudence of the Strasbourg Court. In the Plattform Ärzte case, the violation was founded on the fact that the police had failed to provide adequate security to allow one group to protest, in the face of possible disruptive counter-protest. It is the basis for the positive obligation in Article 11, the duty not simply to refrain from restricting but to facilitate protest. The move, in the mind-set of the police, towards an acceptance of this was, in the UK, long and hard-won but since the policing of the G20 in 2009, and the various HMIC reports into it, it has become commonplace in the policing lexicon. The decision to opt-out, to be replaced by G4S or somesuch is retrograde indeed.