Tag Archives: Strasbourg

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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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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