Tag Archives: human rights

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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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

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 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

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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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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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BEWARE GRAYLING BEARING GIFTS

It feels a little like Christmas Eve today – anticipating what tomorrow will bring. For many though the Tory’s likely announcement of their plan for the Human Rights Act is going to resemble the revelation of an ill-fitting hand-knitted garish jumper, not the delights of a Breaking Bad boxset.

This short post is not going to be an encyclopaedic traverse of the terrain of domestic human rights protection. Instead though it seemed sensible to offer a couple of thoughts that could be borne in mind in the weeks and months of struggle ahead, as we make our way to May 2015. It is very unlikely to say anything new but – as we shall see – simple repetition is a tactic of opponents of the HRA, oftentimes of demonstrably untrue assertions, so if you can’t beat them…

First, though the plans have only been hinted at in recent months, it is clear the Tories want to rebalance the relationship between the UK and the Council of Europe/Strasbourg Court. One approach, floated by Chris Grayling over the weekend is that the “European Court of Human Rights will no longer be able to overrule British courts”. It is hard to see how this can happen. It is legally impossible for the Tories to legislate domestically to instruct an international supervisory court, and thus the other member states, how to approach cases that come before it. Grayling is blowing in the wind here, but what is symptomatic of the debate from the right, the truth – or legal reality – has long been the first casualty. In the same way, Westminster cannot pass a law revising the accepted meaning of use of lawful force under the UN Charter, and expect any other state to pay a blind bit of notice. UK courts of course would be required to do so – and perhaps this is what Grayling really meant, albeit that he tried to describe it in a legally illiterate manner. Doing so would mean that the UK – using that example – would have perhaps an entirely different definition or understanding of lawful force to any other. Using the HRA as our example, it would mean altering s.2 of the HRA. This is the option that Carl Gardner thinks will be announced tomorrow – and it has a long pedigree as a policy option, and not just on the right. Sadiq Khan has intimated the same approach for Labour, again (interestingly) in a Telegraph interview over the summer. There is something understandable to this but it is hard to see how it might be framed: the current wording was deliberately framed as not to bind British judges. Indeed a stronger adjuration was rejected. Yet judges have – or rather had – taken the view that s.2 in general required what has often been described as a mirror, that we mirror Strasbourg law so that UK law is no more, no less the same. Recent years have seen noticeable declarations of departure – we might think of Horncastle as a good example. The result there of failing to follow Strasbourg jurisprudence on admitting certain hearsay evidence was that in the next case to come before it, the ECtHR very clearly shifted position. In short what form of words can be latched upon to give this clear direction to judges?

That though is a soluble problem. It does however miss another counter: that the change in heart on the part of the European Court was the result of some form of inter-curial dialogue – and thus close involvement between the UK and Europe – something long advocated by Dominic Grieve as a strength of the current framework but, as Carl Gardner notes today, something that is both only long-term in result and unclaimable by an one party. It is therefore unpalatable in today’s “something must be done about human rights” politics. It also underplays, ignores, the very clear shift in the approach of the Strasbourg Court – far more deferential, far more of a subsidiary role in recent years respectful of and mindful towards elected representatives. This is reasonably well-documented, and we might think of Animal Defenders, von Hannover No 2 and this more recent case against the UK, the RMT decision from April this year. There, the UK’s ban on secondary industrial action was held not to violate article 11 and the Court said this (at [99])

In the sphere of social and economic policy, which must be taken to include a country’s industrial relations policy, the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation”. Moreover, the Court has recognised the “special weight” to be accorded to the role of the domestic policy-maker in matters of general policy on which opinions within a democratic society may reasonably differ widely The ban on secondary action has remained intact for over twenty years, notwithstanding two changes of government during that time. This denotes a democratic consensus in support of it, and an acceptance of the reasons for it, which span a broad spectrum of political opinion in the United Kingdom. These considerations lead the Court to conclude that in their assessment of how the broader public interest is best served in their country in the often charged political, social and economic context of industrial relations, the domestic legislative authorities relied on reasons that were both relevant and sufficient for the purposes of Article 11.

As I put it in an earlier UKCLA blog post in each “we can – if not clearly and explicitly – see the Court playing a political role, seeking to staunch national discontent with judgments would appear to be more politically welcome. This has simply been lost in the debate, and lost too with Grieve’s sacking. Is it coincidence that there was not one single newspaper report of the Government’s success in the RMT case?

 

Second, there is in essence something inherently duplicitous in the Tory’s approach: on one hand, the aim of reform and change is to “make the Supreme Court supreme” and on the other, stressing that this rebalancing will make the protection of human rights in the UK a more democratic endeavour, and thus something to be aspired to. You can either have judicial power or you can have democratic power – someone has the last word. Unless Grayling is also planning to tamper with the fundamental constitutional principle of Parliamentary Sovereignty – in which case many of us this week will urgently have to rewrite 1st year lecture handouts – the Supreme Court will not become sovereign. To configure it so that it has more sovereignty than Grayling considers it has now is again a legal falsity lost on a non-lawyer. It is not a divisible concept, certainly not something you can have more or less of. It is duplicitous too as – again as many have noted – without properly addressing the place of EU Law within the UK’s judicial order (and of course renegotiation, referendum and withdrawal are not unimaginable) whatever view we take of the ECHR, the human rights principles of the CJEU and the growing Charter jurisprudence mean that whatever is done in relationship to Strasbourg will offer a false dawn.

This post is not the place to go into the whys and wherefores of this debate – to which I & many, many others have contributed over the years. Here I agree with Gavin Phillipson: there is now an urgent need to debate and thrash around the appropriate constitutional balance between elected representatives and the judicial arm. We cannot avoid it. As he writes,

if we want to defend the ECHR as it is, we need to come up with clear arguments as to why the Strasbourg court should   retain the final word on questions of human rights in Europe.

I would add just this – though this is not intended to be a Damescene moment: democracy is essentially majoritarian, that’s how it works. I often say to my undergraduate students, people like me – white, male middle aged, university educated professional, middle class – do not need rights. I can get MPs to do my dirty work for me if I need some sort of favour or special treatment. Minorities, by whatever description, by definition cannot – they simply cannot muster the power. If they could, they’d be a majority. Simplistic I accept – but a truth lurks. Human rights are about protecting often powerless people from the worst excesses of the exercise of political power by the rest. You cannot give greater protection by handing it all over, or back, to Parliament. This is not to accept that there is not a key role for Westminster, nor indeed for courts and judges – unravelling that is the next project for human rights constitutional lawyers – but simply to offer the view that tarting the proposals up in the language of democracy offers voters a misconceived view of what human rights are and should be about.

 

That does though make sense. The real thrust has been a media narrative of undesirables claiming rights – most often foreign criminals claiming the right to remain using Article 8. I have conducted my own empirical research (and blogged last week) and come to the conclusion that the extent of that is simply a fabrication. Readers of The Daily Mail – from the frequency with which stories are reported – would be under the impression that the success rate (i.e. those who manage not to be deported) is about 92%. Of 21 stories in that paper that were on foreign criminal deportations, 19 were about those in whose favour the courts had found. The reality is very different. Even the Mail itself has been reporting a success rate of a third – though using that to show a yearly 50% increase – while Home Office figures (admittedly for 2012) show a success rate for applicants of 24%. There is also a continual mantra linking “murderers and rapists” together – again, as I discovered, in 27 domestic human rights stories in the past year, almost all in the context of prisoners’ rights/deportation. It is easy to see a tsunami of moral panic building up, with such groups becoming the modern day folk devils, replacing Stan Cohen’s mods and rockers of the 1960s. This is reinforced – again as my research shows – by worthier victims (using the label applied by Herman and Chomsky in Manufacturing Consent) not needing to claim their human rights at all, or rather newspaper coverage simply omitting any mention of human rights as the reason for success in court. The successful claim by Beth Warren to use the sperm of her late husband “out of time” was based on her Article 8 right to family life yet readers of the Telegraph would have had no clue.

 

There is much more to the said about the HRA and its important place in our domestic order. David Green has quite properly been stressing Lord Bingham’s speech in which he rhetorically asks which of the many listed rights in the ECHR are its opponents against. It is, of course as is well-known, the product largely of British involvement though – to be fair – it would be an ill-conceived argument to focus solely on the very words of a document from 60 years ago, without even a nod to how those words have been interpreted. We could though, to take another Tory argument – that there is simply no authority for the expansion and development of the Convention, the living instrument approach point – as Nuala Mole did at a conference last week to the preamble of the ECHR

 “Considering that the aim of the Council of Europe is the achievement of greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of Human Rights and Fundamental Freedoms” (my italics).

Instead, let us for now concentrate on what tomorrow brings and timeo Danaos et dona ferentesbeware Greeks bearing gifts.

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Filed under Human Rights Act, Politics

The (police) pen is mightier than the sword

A rather strange thing happened today. I had decided to dedicate my last research day of the summer to re-reading a couple of articles by US academic Timothy Zick, one of the very few commentators engaging with something I have been thinking about: the relationship between place, and space, and protest. In one, he was analysing recent developments such as free speech zones at party conventions and the penning in of protesters behind wire mesh. At lunch, I glanced at my Twitter feed to discover the High Court had just handed down judgment in the UK’s first protest pen case, Wright v Commissioner of Police for the Metropolis. This short post will summarise and analyse the judgment of Jay J (yes, really Jay J!) and offer one or two brief thoughts on where this might leave us in thinking about “the place of protest, the places of protest” – which is the lengthier piece I am currently working on.  It is by no means a comprehensive analysis or note.

On 30th March 2011, Shimon Peres, the President of Israel came to the UK on a state visit. He was due to give the keynote speech at a seminar at Chatham House in London, recognising 60 years of British-Israeli diplomatic relations. The Palestinian Solidarity Campaign decided to hold a demonstration outside and Joseph Wright, the claimant, was part of it along with about 40 others. He was contained in a police pen between shortly after 09:27 and 10:42, implemented as a security measure to prevent a breach of the peace. He claimed damages for damages at common law (for false imprisonment, assault and battery) and under section 8 of the Human Rights Act (for breaches of his rights under Articles 5, 10 and 11 of the ECHR). None of his claims succeeded. In terms of the operative, tripartite test (see [27]) set recently by Moses LJ in Mengesha, the High Court decided there was a reasonable apprehension of an imminent breach of the peace – that is, the officer honestly believed a breach was imminent and that belief was made on reasonable grounds – the measure was necessary and was also proportionate. It is clear from the judgment that the operating factor was the claimant shouting out (at 09:27), “Shimon Peres is coming this way” as his official car appeared on the scene, and beckoning to others. It is at that point that Wright is gently pushed into the pen. Though not without a measure of hesitation (see [60]), Jay J concluded on the balance of probabilities that the officer did have reasonable grounds.

The principal ground for the containment was a belief that one or more persons, whoever they might be, would seek to advance at speed in the direction of Mr Peres’ car. [The police] interpreted [Wright’s shout] as liable to provoke action of this nature, regardless of whether that was in fact his intention. [The officer] no doubt also believed that the Claimant himself might form the vanguard of such action: self-evidently, he could not know what was passing through the Claimant’s mind. He had to respond in rapid real time to the situation as it was developing before him (at [61]).

The containment was both necessary – the alternative source of power to control, s.14 of the Public Order Act being unavailable – and proportionate, His Lordship rejecting the argument that the police should have waited and arrested individuals as and when the need and justification arose (see [68]-[69]). Thus the common law claim (and, synonymous with it, that under Article 5) failed. So did the claims under the HRA for breaches of the qualified rights in Arts 10-11, in light of the earlier findings on proportionality and necessity.

Wright is one of long line of cases in the past few years in which the ability of the police to control protests using the residual common law power to prevent breaches of the peace by imposing some form of containment has been before the courts. None has ultimately been successful. Most well-known is the domestic and ECHR case of Austin, on which I have blogged elsewhere. Moos and McClure, though it succeeded at first instance – the court holding that as the threat didn’t come from the contained group, imposing a kettle was unlawful – was overturned, on what might be thought a technicality, by the Court of Appeal: that the court below had not taken the correct approach to assessing the imminence of the breach. Even kettling children was held not to raise any especial problems for the police under the Children Act 1989, according to the High Court in Castle. Mengesha is a success but is properly not seen as a challenge to the imposition of a kettle but to how it was operated and in fact brought to an end, holding it was unlawful as a condition of leaving a kettle to demand (request?) personal details and to be photographed. Wright though is the first police pen case to come before the Courts and for that reason alone is important. Whether much turns on being contained – kettled – by officers linking arms, or by maintaining a line of horses or by physically constructing a pen with barriers does seem moot – and to miss the point somewhat, which is the seeming uncontrollability of this power. While Laporte did trim some excesses from the common law – and its nadir of Moss and McLachlan during the 1985 miners’ strike – it is, as Andrew Ashworth makes clear ([2007] Crim LR 576), very much a decision on its facts: had the police not been candid enough to admit the threat at Fairford was not imminent, it would have gone the other way. While we should not judge or assess the validity of claims for legal reform like football scores, the fact that no one has successfully challenged the imposition of police containment in four attempts should make us pause for thought. It more and more resembles arbitrary, random mass detention on suspicion of very little indeed. More so when the police rely on the common law power when they cannot avail themselves of the statutory power – with its carefully crafted balanced framework. Richard Stone makes this point, and finds limited echoes in some of the words of Lord Bingham in Laporte (at [45]). Wright, it is to be hoped, can only strengthen calls for codification of the common law power – perhaps as part of the coalition’s plans to restore the right of non-violent protest promised in their 2010 Agreement (oh look, there’s a pig in the sky).

Of course the real problem of the power is its indiscriminate use – and potential – bringing into the realms of Foucauldian discipline, if not of punishment, many who (simply put) are not, will not be and have no desire to be troublesome, disruptive, aggressive let alone violent. I have no idea who Joseph Wright is – and certainly make no claim to know what he was thinking that morning – but if shouting out “Shimon Peres is coming this way” constitutes grounds to be pushed, ever so slightly, into a place you do not want to be, and where you think your protest will be less effective, then we have reached a very sorry state indeed. Will Directioneers (note to Ed – contemporary cultural reference to show awareness) be corralled outside the O2 as they spot their heroes and make to rush towards them? If not, and I suspect not, we have a clear case of what under US 1st Amendment jurisprudence would be seen as content-based regulation.

In terms of the judgment itself, it must contort ordinary English language to hold – as Jay J did ([14]) that the earlier containment (from 09:07 – 09:27) was voluntary. Not that anything turns on this, since Wright’s claim was for the later period, but holding it was voluntary as being borne out by the fact that one or two were allowed to leave does not really tell us about the imposition of the containment in first place. In any event the admitted fact that some of the group were warned they would be arrested for breach of the peace if they did not comply does rather change the contours.

Secondly, it is puzzling that Jay J looked only to Nicol and Selvanayagam when assessing the position where Y breaches the peace as a result of X acting reasonably in the exercise of his rights. After all here, that is simply all Wright was doing when shouting out – and as we have seen, that was key in his losing the case: he was exercising is free standing right to free speech, under Article 10. Nicol is, first, a case from 1995, and so decided before the HRA came into force. Why not the 1999 case of Redmond-Bate, clearly decided by Sedley LJ with one eye on the HRA even if not in force? In any event, these are simply the wrong cases to use – they provide the wrong framework for resolution. The worry in the instant case was that Wright’s conduct – his words – would provoke others in his group to attack or approach Peres’ car – not that another group would be so outraged (if anyone could be outraged by “look there’s Peres”) as to attack the Palestinian Solidarity Campaign. None of the cases – not Beatty v Gillbanks, nor Wise v Dunning – is precedent for what was feared here. Even if they were, they could surely be distinguished on the basis of lack of any inflammatory language – hence the relevance of Redmond-Bate, where the citizen was successful. Last, Jay J (at [66]) seems to have conflated two separate legal questions, that of the reasonable apprehension on the part of the police and the reasonableness of the protester’s actions, or words: “I have found that his actions were such as to cause the police reasonably to apprehend that someone would rush forwards in the direction of Mr Peres’ car. That would have been unreasonable action liable to cause a breach of the peace, whether it be directly … or indirectly.”

My last point goes to some of the wider concerns about place and space that I hope to explore in my longer article. I shall allude only to a little of it, and discuss a few of them very briefly. One of the reasons that Jay J decided there was no breach of Article 10 or 11 was ([74]) that the “interference …was in any event close to minimal: the Claimant was still free to demonstrate and to associate, albeit not quite where he wished to.” That is not the marginal point it seems. First, it denies any autonomy to the speaker: his, or her, choice about venue and location – the advantages of spot A over spot B in terms of efficacy – is given no weight. After all, had Wright wanted to protest where the pen was, no doubt they would have tried to sooner but it must have been ruled out for good reason. We thus have the state dictating where – not simply when and on what – we can lawfully protest. This is not new – routes are regularly re-routed (as took place last weekend for the EDL’s planned march in the East End of London) – but there is a wider public interest at stake here. Penning people into a small area, barricading them apart, sends out a message: protest is something frowned upon, something not valued – or not as valued as allowing a foreign president undisturbed access to a building – something to be discouraged, and something that is discouraged – or at least is discouraged on topic X, something much worse as creates skew – as something that is only to occur on terms set by the state – which, of course, has a vested interest in (and rightful duty of) preventing disorder – and so will favour orderly protests over disorderly. It is true too – and see my earlier point about One Direction – that protest tends to be oppositional, tends to be against “stuff”: very few turn out to clap and cheer government policy on a daily basis and if any were to, the likelihood is that they wouldn’t get cross. People who are against things, against decisions, against policies, tend to get crosser…and as governments make decisions and have policies, naturally people want to protest against them – so protest, and protest space and protest places, are always and essentially contested, battles in and of power – trying to get more, trying to keep what they have… so is it fair, is it right, is it sensible that the likely targets of that ire – the state, at least in the shape of its police force – should be the ones to set the terms of engagement? This was what I was thinking about today, prompted by two splendid pieces by Tim Zick on “spatial tactics” and “expressive topography” here and here, and which came to a head in Wright.

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Filed under Free speech, Human Rights Act, Policing, Protest