Category Archives: Human Rights Act

FLAGGING UP A MISCONCEPTION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CONSULTATION ON TACKLING INTIMIDATION OF NON-STRIKING WORKERS

DEPARTMENT FOR BUSINESS INNOVATION AND SKILLS

TRADE UNION BILL 2015

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

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

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

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

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

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

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

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

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

 

1. What is the gap?

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

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

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

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

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

2. Wider ramifications

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

Developing all that a little:

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

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

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

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

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

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

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

Screen Shot 2015-05-21 at 14.09.01

 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. Screen Shot 2015-05-21 at 00.02.19In 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

Screen Shot 2015-05-21 at 15.48.43

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

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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 1st 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…

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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 (9th 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.

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Four legs good – two legs just as good, no better, no worse

Far too much ink has been spilled in the last few days, considering – dissecting? – Chris Grayling’s plans for reform of the UK’s human rights law. Blogs by Mark Elliott, Carl Gardner, Adam Wagner Angela Patrick (of JUSTICE) and Alison Young would be but five looking at the legal illiteracy, simple fallacies and distortion. The most recent tweets and posts have been on Conservative HQ seeming dissembling over where on-line the proposals could be found.

For example, it is simply not the case (p.4 of the policy proposals) that the Misuse of Drugs Act (and here I assume they mean the 1971 Act) “provides the defence for the defendant to prove, on the balance of probabilities, that they did not know, suspect or have reason to suspect that what they had was an illegal drug.” Section 5(4) and indeed s.28(3) are absolutely silent on the standard – and indeed the burden – of proof; that is the point. To have read such words as occurred in Lambert (again, assuming the case they are referring to) would have been a gross distortion and almost certainly an excess of the interpretative power in s.3 of the HRA –and thus an arguably illegitimate power grab. Instead, the House of Lords was able to overturn many other common law cases interpreting the word “prove” in a way that was more favourable to defendants, and in keeping with Article 6.

That though is not my main concern in this blog. Instead, I plan to look at the claim – in the accompanying press release, not the actual 8-page document – that

No one would be able to claim human rights to allow them to step outside the law that applies to all other citizens, for example a group of travellers claiming the right to family life to breach planning laws.

 First, at a normative level, this obscures the fact that human rights are – or perhaps should be – avowedly anti-majoritarian, something I mentioned in a couple of posts last week. It is the task of human rights defenders to counter objections to the universality of rights – that somehow there are those deserving of protection and others who are not (which of course chimes with the theme of responsibilities in the proposals). If that view holds sway, you can bet that the targets of abuses – devoid then of protection – will be the usual suspects. Human rights protection is for all, yes, but especially for those on the margins. In short, human rights laws, it can be argued, are there and are needed precisely to exempt some people –some groups perhaps – from the bite of laws approved by the majority.

Secondly, it will simply unravel if the Tories seek to provide some flesh. Yes, travellers are an easy target – of course, it would be argued, ordinary planning laws should bind them as much as it binds “hard working families” but would we – rather would they – be so sanguine, so keen to tell Beth Warren that she should not be exempt from the normal time limits for using her late husband’s sperm? The HFEA’s decision to stick to the statutory limit was ruled an unlawful – i.e. disproportionate – breach of Mrs Warren’s right to family life under Article 8. Section 3 of the HRA was used to read the legislation (s.14 of the Human Fertilisation and Embryology Authority Act 1990) in a way to assist, the wording of which we might reasonably conclude Parliament had already sought to balance the relevant competing tensions, interests and concerns. Of course, it helps that Mrs Warren is in Chomskyan terms, a worthy victim. What about mothers and fathers – now safe in the knowledge that the state must bear the costs of some aspects of private family law cases as a result of Article 6 and 8? That is the result of the decision taken by Munby P in Q v Q this summer but is this not, under the guise of human rights law, a different, and enhanced, outcome than the ordinary law that applies to all would seem to predict, exactly what the Tory proposals are so damning about? Last, what would the Tories say to Gary McKinnon – stepping outside the ordinary law of extradition that applies too all, unless – like him – you happen to be such a great suicide risk that to send you to face trial in the USA would likely amount to a breach of your human rights.

So the Tory policy is not only intellectually suspect but hypocritical, a divide and rule policy for temporary political advantage, and (certain) red top approval. After all, the Home Secretary’s decision in respect of McKinnon was warmly lauded by the Daily Mail seemingly without any volte face or even recognition that this was a departure from their usual line on criminal deportations. On the topic of barefaced chutzpah, let us leave it to The Sun, which this week lay claim to greater journalistic protection – having previously campaigned long and hard to deny human rights to others. What better example of someone seeking to step outside the law. Someone needs to let Chris Grayling know sharpish. Gotcha indeed!

 images.duckduckgo.com

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A few thoughts about Lord Judge judging judges

In today’s Daily Mail, former Lord Chief Justice engage again in hostile criticism of the Strasbourg Court originally made in the Bar Council magazine Counsel – and the aggrandising of power (my words, not his) by unelected judges there, over and above democratically elected Parliaments.

In this short post I plan to offer a few rejoinders, as the debate heats up.

He sets out his view that “the Human Rights Act did not give Strasbourg the right to impose its rule on Britain.” He’s quite right. It’s a domestic statute. The Act, passed in 1998, has nothing to say on the binding nature of the Convention, and more specifically Strasbourg law or judgments. It is true that s.2 requires judges to “take account” of such judgments – and there has been much ink spilled over whether this needs reform, to reclaim supremacy for the Supreme Court. The reason though that the UK is bound to implement European Court judgments in cases against us at least is Article 46 of the ECHR itself: “High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.” Thus the state is bound as a result of its freely chosen and entered into international law treaty obligations in 1951 (in the second short-lived Attlee administration). That is we are – still – obliged to give some prisoners the vote i.e. we are required no longer to have an absolute voting ban that catches all, no matter the crime committed or length of sentence. It is simply arbitrary to debar or allow citizens to vote dependent solely on whether they happen to be in prison on day X.

That though is a digression. The point is that the fault lies at the door of the ECHR, not the HRA. Of course, both are under attack from certain elements in the Tory/UKIP party but a proper, and informed debate on Britain’s role in and relationship to the Council of Europe deserves better. Are we really going to join the club (current membership 1, Belarus) as the only European states not in it? The words of Groucho Marx spring to mind.

 

Another complaint is the unelected nature of the Strasbourg Court. This is simply not true. Unlike his UK brethren, European Court judges are elected by the Parliamentary Assembly of the Council of Europe and I’m very grateful to Andrew Cutting of the Council’s Brussels office for this link which explains it a little more.

Of course, UK judges do not need to be elected, it would be argued, as they are always subject to the overriding democratic power of the Westminster Parliament. That to me seems to be a little off the point in this context. Yes, Parliamentary Sovereignty means that whatever decision a judge reaches is subject to possible overturn by MPs but that only obtains when legislation is the subject of legal challenge. If instead judges are holding exercises of ministerial discretion to be unlawful – on standard judicial review grounds – as with last week’s legal aid challenge there is no question of Parliament’s sovereignty being impugned. In short, it seems a little rich for a British judge to complain about the powers of unelected judges when they have been not simply silent but positively approving of the expansion of judicial controls – sometimes even praying in aid the nebulous common law constitution, which – by definition – must lack any form of democratic imprimatur.

 

Last, a further implicit complaint is the undemocratic nature of human rights, something made explicit as a criticism by Chris Grayling late last year: “The European Court of Human Rights has lost its legitimacy in the UK by doing things that frankly the people of this country and their elected representatives do not want.” Surely that’s the point – if they were subject to the vicissitudes of the 51% temporarily constructed, they’d hardly be fundamental things at all, more the benefits of majoritarian largesse, at the beck and call of whoever was in power. You don’t have to be Rawls or Dworkin to think that’s nonsense on stilts!

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