David Harris, Michael O’Boyle, Ed Bates and Carla Buckley: UK withdrawal from the Convention? A broader view.

ECHRIn the following blog the authors of the third edition of a leading text on the Law of the ECHR (Harris, O’Boyle and Warbrick, The Law of the European Convention on Human Rights, David Harris, Michael O’Boyle, Ed Bates and Carla Buckley, OUP, 2014) look back to the circumstances surrounding the publication of the first edition, in 1995, as a basis for reflection for today, with talk of the UK’s withdrawal from the Convention in the air. A significant part of what follows draws on the Preface to the third edition of the authors’ book, the intention being to bring the comments made there to a broader audience than the book itself would have reached. The post that follows is written in the authors’ personal capacity.

Back in 1995 the Preface to the first edition of Harris, O’Boyle and Warbrick noted that the growth of support for a bill of rights in the UK created the possibility that the provisions of the Convention could be directly applicable in UK courts. It was also noted that ‘if this were to come about, the law of the Convention would be thrust to the fore of university legal curricula and would achieve an immediacy and relevance that would dynamise, if not revolutionize, the United Kingdom’s constitutional system’.

The Human Rights Act, and dialogue between Strasbourg and national judges

All of this has come true since the entry into force of the Human Rights Act 1998, the judicial interpretation of which has given rise to a home grown corpus of human rights law developed first by the House of Lords and, subsequently, the Supreme Court. Both of these courts have based themselves on the case law of the European Court of Human Rights and have not been fearful of pointing to inconsistencies and lack of clarity in Strasbourg law when this was called for. Strasbourg, for its part, has welcomed this new form of ‘dialogue’ inter alia with the Supreme Court and looks with admiration at the manner in which Convention principles have been applied and interpreted in an impressive body of national case law.

The relationship has run into episodic difficulties in cases like Al-Khawaja and Tahery v UK and Taxquet v Belgium (where the UK was an intervener), when, with the opportunity to reconsider the chamber judgment, the Court’s Grand Chamber listened carefully to the arguments of the UK, and adjusted its case law to take into account the specificities of the UK legal system, as pointed out by the Supreme Court, and in keeping with the principle of subsidiarity. As has been noted by many commentators, there has developed over the years a healthy cross fertilisation between the two courts and their respective judgments are eagerly and expertly parsed and dissected by each other. The same can be said for the Court’s relationship with the superior courts of other countries—Germany and France being prime examples.

The importance of this form of judicial dialogue for the orderly development of the law cannot be overstated. But it has also given rise to a realization that while the Strasbourg Court may not be able, as a judicial institution, to defend itself against the buffetings and criticisms it regularly receives from political figures, as in the UK, it can intensify its relationships with the national superior courts through the medium of ‘dialogue’ as a more appropriate and more adapted response to such criticisms. For it must not be forgotten that the essence of the notion of subsidiarity resides in the daily application by the national courts of Convention law.

More possibilities for dialogue with Strasbourg in the ‘age of subsidiarity’?

Opportunities for dialogue will be enhanced when Protocol 16 enters into force, for those States which opt to ratify it. This provides for the possibility of a national superior court to request an advisory opinion from the Court on issues relating to the interpretation of the Convention. It has been dubbed the ‘Dialogue Protocol’ because it offers the prospect of another form of adjudication in Strasbourg, distinct from individual and inter-state complaints, involving the superior courts as willing partners in the elucidation and development of the case law rather than as the potentially irritated subjects of violation verdicts.

In the meantime, and (arguably) against the background of the reform process initiated at Interlaken, including the valuable contribution made by the UK in the context of the Brighton Declaration, there are very strong signs that the Court has met the States’ request to ‘give great prominence’ to ‘principles such as subsidiarity and the margin of appreciation’. In that connection reference may be made to a recent lecture entitled Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity, in which the Icelandic judge in Strasbourg, Robert Spano, responded to criticism levelled at the Court by some former members of the senior judiciary in the UK to the effect that it too easily overrides the views of national decision-makers. Adopting a careful analysis of recent case law, he argues convincingly that Strasbourg has been refining its approach to subsidiarity and the margin of appreciation, ‘adopting a qualitative, democracy-enhancing approach in the assessment of domestic decision-making in the field of human rights’. Judge Spano has suggested that the next phase in the Convention’s life might come to be known as the ‘age of subsidiarity’.

The principle of subsidiarity has always been a fundamental one in the Strasbourg jurisprudence. However, the prospect that the Strasbourg system is indeed embarking on an ‘age of subsidiarity’ should be a vital consideration informing the debate with respect to its role and relationship with the UK. This point is of major significance if the time comes when the future of the Human Rights Act is reconsidered – for the Act facilitates subsidiarity as well as a Strasbourg-UK judicial dialogue – and is thus at the heart of the issue of the UK’s membership of the Convention itself.

‘Rights Brought Home’ and the Convention under attack in the UK

In 1995 the Preface to the first edition of Harris, O’Boyle and Warbrick observed that many of the issues examined in Strasbourg touch on highly sensitive subjects such as prisons, immigration and the administration of justice, and that political figures and media commentators in the UK frequently complain, in ‘strident tones of indignation, of interference in the domestic affairs of the state by uninformed and ill-qualified foreign jurists’. So it has not only been since the passage of the Human Rights Act that the influence of and jurisdiction of the Strasbourg Court has become contentious in the UK.

The politics of the day in the mid- to late-1990s were different, however, as is evident from the Labour Government’s White Paper, Rights Brought Home: The Human Rights Bill. Looking back today it is interesting to note that reference was made to the scheme of supervision provided by the Strasbourg Court as one that was ‘now well tried and tested’ it being established that Convention ‘rights and freedoms’ were ‘ones with which the people of this country [were] plainly comfortable’. Those rights therefore ‘afford[ed] an excellent basis for the Human Rights Bill’ (para 1.3).

Given the concerns recently expressed in the UK with respect to the Convention as a ‘living instrument’ the speech delivered by Jack Straw (‘Human Rights and Personal Responsibility – New Citizenship for a New Millennium’, St Paul’s Cathedral, London (2 October 2000)) then Home Secretary, on the day that the Human Rights Act 1998 entered into force, may be looked upon with some interest. He acknowledged that the Convention was not a ‘monument to history’ but that its ‘living instrument’ character was an answer to those ‘who assert that the convention has been developed in a way not anticipated by its draftsmen’. Straw stated that he had no ‘problem with the living instrument explanation’, but saw matters in ‘a slightly different way’. The ECHR he said, was ‘relevant to the UK today – and tomorrow – because the basic values at its heart are timeless’. They were ‘about the equal worth of all, and the belief in our responsibility to create a society that advances such equal worth and dignity’.

These comments could be made with respect to the judgments against the UK in cases such as Hirst (No.2) (prisoners’ votes), Vinter (whole life sentences) and Othman (Abu Qatada ) (deportation to Jordan). Yet, on the basis of such rulings, the level of criticism in the UK against Strasbourg has developed to an intensity that could hardly have been predicted back in the 1990s. As has been widely reported the point has been reached whereby certain Government ministers have suggested that not only should the HRA be repealed, but even that UK withdrawal from the Convention system should be considered, some going so far as to challenge the Court’s legitimacy as an institution.

UK withdrawal from the ECHR?

Against this background we refer back to 1995, when the Preface to the first edition of our text had asked the rhetorical question whether the Strasbourg system had developed to the point where no European state could seriously contemplate withdrawing from the Convention. What should one make of this today?

It is a measure of the continued success of the Convention system that the question remains a valid one in 2014 for the large majority of the treaty’s 47 High Contracting Parties, indeed, possibly all other States except the UK. For it is our contention that the intensity of the UK debate about the sovereignty of Parliament and the legitimacy of the Court is not replicated in other countries. Of course, there are episodes of criticism elsewhere but, as far as the authors are aware, it would appear that the UK is somewhat isolated in terms of the depth of its apparent opposition to Strasbourg. A detailed study published just last month (J Gerards and J Fleuren ‘Implementation of the European Convention on Human Rights and of the judgments of the ECtHR in national case law’) looked to the reception of the ECHR in Belgium, France, Germany, the Netherlands, Sweden and the UK. It concluded that ‘[in] Belgium, France, Germany and Sweden, the overall legitimacy of the Court and its judgments is hardly subject to debate’ [at 369], even if the Court comes in for occasional criticism in respect of specific, individual judgments. A debate about the Court and its influence with respect to the Netherlands did gain some, initial momentum in 2011-2012, although ‘the critical wind subsided’ [at 256].

Would it be an exaggeration to say, then, that the depth and intensity of the debate about the Court in the UK, and which regularly gives rise to talk of denunciation, is a peculiarly British one? If so, one might ask, ‘why’?

It may also be asked whether opposition to Strasbourg in ‘the UK’ is genuinely replicated in large parts of the nation. That this is at least open to question is suggested by the comments made by two members of the Commission on a Bill of Rights (Baroness Kennedy QC and Professor Philippe Sand QC) who argued that it was ‘abundantly clear that there is no [lack of] “ownership” issue [as regards the HRA] in Northern Ireland, Wales and Scotland (or large parts of England), where the existing arrangements under the [HRA] and the European Convention on Human Rights are not merely tolerated but strongly supported’ (para 88.v).

Reform of the Court

Of course, it is not claimed that the Court is a perfect institution. Nor is it maintained that the Convention’s member States embrace everything Strasbourg does with spontaneous love and affection. Yet it was precisely to preserve the Strasbourg system and its effectiveness for future generations that there has been a determination on the part of the Contracting Parties collectively to reform the system, and to overcome the challenges resulting from the overloading of the Court that were starting to become apparent as far back as the 1990s.

The reform conferences held in Interlaken, Izmir and Brighton revealed a strong political will to put the European system on a more solid footing and to give it the tools to deal more effectively with its worrying backlog of cases without seeking, at the same time, to clip the Court’s wings or to weaken the level of protection it provides. Overall there is a clear political attachment to the ECHR amongst Council of Europe States and an endorsement of the Court’s contribution to the development of human rights law and democratic standards. The reform agenda has placed the focus on the issues inter alia of delay in the examination of applications, the margin of appreciation and the notion of subsidiarity (as discussed above), interim measures, the election of judges and the vexed problem of the enforcement of the Court’s judgments (where serious compliance problems have arisen since the first edition of the book).

From the perspective of workload and the backlog of cases, Protocol 14 has now entered into force. The reforms that it introduces, together with internal reforms such as the provisions for pilot judgments and the prioritisation of important cases, have started to ease the Court’s workload. At the end of June 2014 the number of pending cases stood at 84,850 —a considerable reduction from a figure in excess of 160,000 of some two years before.

In this regard a new mood of optimism may be emerging at Strasbourg, and one aspect of the reform debate may be coming to the fore. Noting that the recent phase of reform was commenced at Interlaken under the notion of a ‘shared responsibility’ for the Convention between Strasbourg and the member States, the President of the Court has recently stated that it is living ‘up to its responsibility to achieve greater efficiency, improve its performance, to allocate its resources more effectively and to concentrate increasingly upon priority cases, without abandoning any other cases’. For the reform process to succeed he has called for ‘improvements at Strasbourg’ to be ‘reflected by improvements at the national level, through better observance of the Convention and the existence of effective domestic remedies in case of breach’. As he puts it, ‘[e]ach State must live up to its responsibility’ and ‘the Committee of Ministers must act more effectively in supervising the execution of judgments – the joint and several responsibility of States under the Convention, as it were’.

The responsibility weighing on the UK today

In this last regard the weight of responsibility bearing on the UK during what remains a difficult time in the Convention’s life must be brought into real focus. What is at stake for the Convention system and Europe overall as a result of the hostility directed toward Strasbourg by the action of a State held in such high regard as the UK cannot be underestimated. ‘Europe overall’ – for one only has to visit the Court’s web site to appreciate the broader importance of the Court given the nature of some of the disputes it has been grappling with recently – an inter-state case brought by Georgia against Russia concerning a collective expulsion of Georgian nationals, the resolution of a long-standing dispute between a variety of Balkan states concerning foreign currency savings in the banks of the former Republic of Yugoslavia, the detention of accused persons in cages during their trial, the hospital treatment of an orphan Aids victim etc.

It is difficult to imagine that one of the leading founders of the system could turn its back on the Convention without inflicting serious damage on the entire edifice by inspiring other States, beset by more fundamental problems of human rights, to follow suit. Some of those States may be from central and eastern Europe, who were encouraged to join the Convention in the 1990s at a critical time in their history, viewing full membership of the Strasbourg system as a necessary component of the legitimacy credentials associated with a democratic, European State. The Secretary General of the Council of Europe has argued before the Parliamentary Joint Committee examining the prisoner voting issue (para 109) that the UK’s withdrawal from the Convention would imperil not just the Convention but the 47 member State Council of Europe as a whole.

Similar comments apply to the potential confrontation that lies ahead with respect to the prisoner voting issue. Former President Sir Nicolas Bratza has underlined how the position adopted by the UK is likely to have consequences for those member States whose human rights records need significant improvement. In a recent lecture he explained that he was ‘convinced… not only of the fragile nature of the hold on democracy and the rule of law which there exists’ in some of the newer member States, ‘but [also] of the vital importance of the wholehearted support for the Convention system in preserving those ideals’. The UK’s failure to implement the judgment in Hirst has had, he explains, a ‘corrosive effect in Russia and Ukraine’, demonstrating that ‘compliance with the Convention obligations by the established democracies does matter’. Fearing further ‘erosion of the hard-won Convention standards in many parts of the Continent’, Bratza maintains that ‘the damage done by the withdrawal of support for the system by one of its key players would be simply incalculable’. He concludes:

‘That system may indeed be imperfect. But it is the only one that we have. What is needed is not to turn one’s back on that system but to work within it, to make it more effective and, in doing so, ensure that, 60 years after it came into effect, the Convention becomes not a dead letter but the vital and living instrument it was always supposed to be’. [N Bratza, “Living Instrument or Dead Letter – the Future of the European Convention on Human Rights”, (2014) EHRLR 116 at 128 – based on the text of the Miriam Rothschild and John Foster Human Rights Lecture (9 November 2013)

We conclude with the following observations. While the issue of UK membership has come to the fore in UK politics in recent years in ways which could hardly have been foreseen in 1995, it cannot be predicted with any certainty what the outcome will be, either in the short or long term. But we respectfully submit that the particular constitutional difficulties encountered by the UK in recent years are straight-forwardly outweighed by the advantages of being a party to the Convention, and the important role played by the ECHR in developing human rights standards throughout Europe and beyond as part of a collective guarantee of human rights—a role that is intimately bound up with peace and security in the region as recognized in the Convention’s Preamble. That point applied back in the late 1990s when the British contribution to the Convention was a cause for celebration under the banner ‘rights brought home’. But it applies today, and with even greater force, given the reform phase that the Convention system is going through, and the strong evidence that it is indeed proving to be effective, including with respect to some of the criticism that has been levelled against the Court in the UK as regards the principle of subsidiarity and Strasbourg’s relationship with national decision-makers. To put in jeopardy what has been patiently built up over more than 60 years would be a disservice to Europe, the rule of law and to the peaceful settlement of disputes.

D Harris, M O’Boyle, E Bates and C Buckley.

 

 

(Suggested citation: D. Harris, M. O’Boyle, E. Bates and C. Buckley, ‘UK withdrawal from the Convention? A broader view.’ U. K. Const. L. Blog (24th July 2014)  (available at: http://ukconstitutionallaw.org/)

 

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Mark Elliott: Human rights reform and the role of the Strasbourg Court

MarkI wrote last week about the dismissal of Dominic Grieve as Attorney-General and subsequent indications as to the likely direction of Conservative Party policy in relation to human rights. As noted in the latter post, the plan—such as it is at present—appears to countenance the possibility of the UK’s departure from the European Convention on Human Rights, the argument being that it is intolerable for the UK to be beholden to the judgements of the Strasbourg Court. The agenda underlying agitation in favour of a UK exit is not always easy to discern, but generally appears to consist of two strands of thought that are respectively opposed to judicial “interference” in matters that are regarded as political, and to European involvement in decisions that (on this view) ought to be taken in Britain. British membership of the ECHR thus finds itself in an uncomfortable position, sitting vulnerably between the twin pincers of de-Europeanization and de-juridification.

Unsurprisingly, the Conservative Party’s nascent proposals (or, more accurately, reports of anticipated proposals) have elicited considerable criticism. However, in a thought-provoking post on The Conversation, Gavin Phillipson rightly points out that although the Conservatives’ proposals

are deeply ill-conceived and transparently political, they nonetheless deserve some intellectual reflection: in political and constitutional theory, the idea that democratically elected representatives, rather than unelected judges, should have the final say over questions of human rights is hardly the sole province of right-wing crankery.

Phillipson is right. The present position that obtains in the UK—according to which a judicial organ, in the form of the European Court of Human Rights, has the ultimate say on human-rights questions—is consistent with that which is found in some, but by no means all, developed democracies.

On the one hand, it bears some similarity to the US model, under which the Supreme Court has the final word on the constitutionality of legislation, albeit that the possibility of democratic override arises via (hard-in-practice-to-accomplish) constitutional amendment. There is no equivalent way of overriding the Strasbourg Court (subject to the ultimate possibility—now countenanced by the Conservative Party—of leaving the system altogether). Nor is the analogy with the US position by any means a perfect one: the US Bill of Rights is a domestic constitutional instrument, whereas the ECHR is a human rights treaty that is binding upon the UK as a State in international law.

On the other hand, many other developed democracies embrace human rights while according greater weight to the views of legislatures in relation to rights questions. A wide array of possibilities exists, ranging from the position found in New Zealand (where the legislature is unconstrained either by a written constitution or by an international judicial organ equivalent to the ECtHR) to the Canadian system (under which legislation struck down by judges can be reinstated by the legislature) to the Indian model (within which judicial strike-down powers are tempered by a system that is much more readily facilitative of constitutional amendment than is the US Constitution).

The diversity of practice evident within (and beyond) the common-law world means that, inconveniently perhaps, the position is far more nuanced and complex than can be accommodated by kneejerk criticism of any proposal to withdraw from or dilute the influence in the UK of the ECHR system. At the very least, such criticism must be justified by explaining why such steps would be unacceptable. As Phillipson observes:

[H]owever incoherent these particular proposals might be, we shouldn’t simply dismiss the principle behind them. Ensuring that national parliaments have the right to override or disregard decisions of a human rights court is a respectable position applied in various countries … In response to the Tories’ populist push on the ECHR, academics who defend “dialogic” or purely democratic approaches to rights protection as a matter of constitutional theory need to start thinking about why and how the ECHR system should be different from the Canadian model. In particular, 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.

One possible such argument is that the ECHR, as an international system, is not directly comparable to that found within individual states such as Canada. As one contributor put it in a conservation on Twitter, “If we don’t want [the] Belarus Parliament to have [the] final say on whether [it is] ok to torture, [the] quid pro quo is [that] ours doesn’t [either].” On this view, the absence of domestic democratic override is the price we way for being a member of a transnational human rights system that yields beneficial results by locking in other States. However, this argument only gets us so far.

International human rights systems do not have to involve the degree of domestic democratic marginalisation that is inherent in the (present) ECHR structure. For instance, the International Covenant on Civil and Political Rights, lacking the kind of enforcement machinery that the ECHR has, entails far fewer domestic democratic implications. This is not to suggest that the ICCPR is other than binding in international law upon States parties: but it does not possess a judicial organ equivalent to the Strasbourg Court that is in a position to secure the degree of lock-in of States parties that the ECtHR is capable of securing. This explains why, for instance, New Zealand’s membership of the ICCPR system puts it in a radically different position from that which the UK occupies as a State party to the ECHR.

Nor does it follow that the ECHR itself has to adopt the approach it presently does: if it were possible to muster the political will, the Convention could be amended so as to (for example) permit (either generally or in relation to particular rights or in particular circumstances) domestic override of Strasbourg judgments. (The Brighton Process resulted in some relaxation of the relationship between the Court and individual States, but to a degree far more modest than that which critics desired.) However, the political reality is that it is unlikely in the extreme that a consensus in favour of amending the Convention in this way could be marshalled.

Nor does it even follow that the promotion human-rights standards elsewhere is necessarily sufficient to justify sacrificing the possibility of greater domestic democratic involvement in the determination of human-rights questions. It is certainly arguable the loss of domestic domestic control is a price worth paying: but this is a value judgment that is not self-evidently correct. If the argument is to be sustained, it needs to be developed. It is true, of course, that British withdrawal from the ECHR would very likely be damaging, both to the UK’s international standing and the the cause, internationally, of protection of human rights. As former Attorney-General Dominic Grieve put it in a speech in 2011, the ECHR forms “an integral part of the post-war settlement”: it has played “an important and successful role in preventing the re-emergence of totalitarianism in Western Europe” and “continues to play a pivotal role in ensuring that the new democracies of Eastern Europe respect and protect the Convention’s rights and freedoms of all their citizens”.

A final point is also worth bearing in mind. The way in which arguments for and against UK withdrawal from the ECHR play out depend, to a large extent, on what a post-ECHR UK constitution would look like. If the choice were between the status quo and simply withdrawing from the ECHR (and repealing the HRA), then that would be one thing. If, however, the choice were between (in the first place) retaining the status quo and (in the second place) replacing the ECHR/HRA regime with a domestic constitutional framework that would equip British courts with powers equivalent to those enjoyed by (say) their Canadian counterparts, then the arguments might stack up very differently. And although some of the “costs” of withdrawal can, to an extent, be assessed now, any such assessment—shorn of the context that forward-looking proposals would supply—would be inchoate at best. Withdrawal with the intention of marginalising human rights within a newly liberated domestic polity would carry different implications—and create different perceptions—from withdrawal coupled with thorough-going constitutional reform that sought to confer a high degree of legal and political security upon fundamental rights.

It is impossible, therefore, to evaluate any suggestion that the present system should be scrapped until we know what, if anything, would replace it. This means that it is incumbent upon the Conservative Party—and anyone else proposing change in this area—to spell out not only which of our existing arrangements would be dispensed with, but what, if anything, would replace them. And, just to anticipate the obvious response, it is worth concluding by pointing out that falling back upon half-baked suggestions that we should have a “British Bill of Rights” just will not do.

 

Mark Elliott is Reader in Public Law at the University of Cambridge (Twitter: @DrMarkElliott). This post was first published on Mark’s blog, Public Law for Everyone.

 

 

 

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Ralph Janik: Jihad and Citizenship: Assessing the Austrian amendment

Ralph-Janik_avatar_1405579233-96x96Increasing numbers of young European fighters join various jihadist groups involved in the various armed conflicts in the Middle East. Slowly, the affected states – among them Austria – are starting to react to this worrying trend. Among the various emotionally debated issues is the question of the impact of such actions on the citizenship status. While currently only voluntarily joining the armed forces of a foreign state automatically leads to the loss of citizenship (§ 32 Citizenship Act), a recent proposal for an amendment would also cover non-state armed groups:

A citizen who voluntarily and actively takes part in hostilities abroad on behalf of an armed group in the context of an armed conflict loses his citizenship unless this would render him stateless.

As it is often the case with legal provisions, the wording, as clear as it may seem initially, poses a few problems and therefore calls for a further elaboration.

Armed groups and armed conflicts

The first issue concerns the definition of armed groups and armed conflicts. Traditionally, a distinction is being made between international and non-international armed conflicts. Regarding the latter, common Article 3 of the four Geneva Conventions speaks of an “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties”. In order to distinguish such armed conflicts from mere internal disturbances, the ICRC requires a certain duration, intensity and level of organization of the involved parties. Thus, the situation in Syria was qualified as a non-international armed conflict from July 2012 onwards, while ICRC president Jakob Kellenberg stated that the clashes in Homs had met the threshold already in February 2012 (he thus spoke of a “localized” armed conflict).

These requirements are also in accordance with article 1 of the second Additional Protocol to the four Geneva Conventions as it speaks of “armed conflicts […] which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” However, this definition notably excludes clashes between armed groups only. Thus, preference is to be given to the wider scope of application of common article 3 – the ICTY accordingly defined non-international armed conflicts as “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.”

Yet, the proposal does not require any level of organization. It must not be forgotten that this requirement aims at reciprocity – only those groups should benefit from the protection of IHL who are themselves at least theoretically able to adhere to it. Basically speaking, this criterion is irrelevant for the purposes of the citizenship act. Seen in this light, the amendment could even apply to fighters who act on behalf of a loosely organized armed group lacking a certain command structure. However, it is questionable whether Austria intends to deviate from the commonly accepted definition of non-international armed conflicts by adhering to such a wide definition.

If this is indeed not the case, a remaining issue would be whether fighters acting without any orders could still be found to “act on behalf” of an armed group. In other words, would it be sufficient if someone independently acts “in the name of” an armed group? As the example of terrorist (clandestine) groups shows, such a scenario is not a remote possibility. A mere textual interpretation could be found to speak in favor of including such cases – mutatis mutandis leading to the very same problems of legal certainty judiciaries have faced when dealing with cases of alleged mere membership in terrorist organizations or actions undertaken as part of such a group.

An international armed conflict, then, is easier to define. Again, the ICTY has made matters clear: “an armed conflict exists whenever there is a resort to armed force between States.” Participating in such a conflict thus also makes it necessary to demarcate the scope of application of § 32 from the proposed amendment, i.e. the question whether paramilitaries and other groups closely affiliated to a state have to be considered as “armed forces of a state”, an issue that would have to be addressed by the rules of attribution as formulated in the ILC articles on state responsibility.

“who voluntarily and actively takes part in hostilities”

This wording also poses more problems as one would think at first sight. While taking part as a combatant is obviously covered, other forms of participation are more questionable. What about arms deliveries to combat zones? Or non-military support of armed groups, such as taking care of financial matters, administering social media accounts, including propaganda or the recruitment of new fighters?

In this regard, the ICRC’s work on the question as to when a civilian loses his protection by participating in hostilities is highly relevant. After all, it is certainly not a coincidence that the wording of the proposed amendment equals that of provisions relating to the loss of protection as a civilian such as common article 3, which prescribes humane treatment of “[p]ersons taking no active part in the hostilities”.

Here, the ICRC mentions three criteria which need to be fulfilled in order to be considered as actively taking part in hostilities.

First, a minimum threshold of harm: A certain likelihood that the act in question has a detrimental impact on military operations or the military capacities of one of the parties to a conflict, or leads to civilian casualties or the destruction of civilian objects. The harm must not necessarily materialize.

Second, there needs to be a causal link between the act or the military operation to which it contributes and the harm.

Third – and this is the most disputed element – the act “must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus)”. Actions taken in self-defense are thus excluded. Intent is not required, the objective nature of the act is decisive.

Going back to the issues raised above, driving a truck loaded with weapons to the combat zone has thus been found to qualify as active participation; delivering weapons to a port, from where they would be further transported, would not be sufficiently related to the hostilities. The other mentioned non-military forms of support would also not be covered.

Conclusion

In sum, judges could rely on existing case-law and scholarship, in particular the work of the ICRC, when applying the proposed amendment. The real problem would be the inherently difficult production of evidence in such matters. Obviously, this is a primary concern for members of secret services. Apart from that, the proposed amendment would often turn out to be rather toothless because of the caveat that the affected persons must not be rendered stateless (a provision that is not found in § 32 Citizenship act; persons joining the Foreign Legion without receiving French citizenship could thus basically become stateless). After all, the Austrian Citizenship act only allows for dual or multiple citizenship by birth. At this stage, it is unclear how many of the approximately 100 fighters who have travelled from Austria to fight in Syria are nationals of more than one state (or how many of them are Austrian citizens in the first place). However, I dare to guess that the number is rather small.

Ralph Janik is a research assistant (Prof. Dr. August Reinisch) and a lecturer at the University of Vienna.

This post originally appeared in the Verfassungsblog, and is reposted here with thanks.

 

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Tom Quinn: Mandates, Manifestos & Coalitions: UK Party Politics after 2010

One of the most important assumptions underlying this view of British politics since 1945 was that governments were given mandates by voters in elections. That followed from the fact that they were directly elected by voters, as there were no post-election coalition negotiations to intervene between voters’ choices and government formation. Mandates followed from voter endorsement of governing parties’ manifestos. The winning party was assumed to have a mandate to implement its manifesto in office.

The hung parliament of 2010 and the subsequent coalition government challenged these assumptions. If no party enjoyed a parliamentary majority, what sense did it make to speak of mandates? What was the role of manifestos if no party possessed a majority to implement one in full? What was the legitimacy of coalition agreements if they have never been put to the electorate? Ultimately, is it necessary to rethink the relationship between voters, parties and governments in the UK political system?

The Traditional Mandate Doctrine

The traditional ‘mandate doctrine’ of British government is, in essence, a very simple one. Two major parties, Labour and the Conservatives, compete with each other to form majority governments to implement their preferred policies. This two-party system was upheld by a first-past-the-post electoral system that made it hard for small parties to win seats. The first-past-the-post (FPTP) electoral system would help to turn electoral pluralities into parliamentary majorities. Elections were opportunities for voters to decide whether Labour or the Conservatives would form the government.

To facilitate this choice, the parties would offer manifestos before the election. These are detailed policy programmes setting out what each party would do in government. Voters could consult these manifestos and vote for the one they most preferred. The party that won a majority of seats in parliament would have a mandate to implement its manifesto. That is, it would have both the right and the obligation to do so. At the following election, voters could decide whether the governing party had been true to its promises: if it had, they might vote it back into power; if it had not, FPTP made it easy to ‘send the rascals packing’ by voting in the other party. Thus, Britain’s party system was based on the direct election of governments by voters, ensuring strong bonds of accountability. Manifestos were an important hinge, linking pre-election promises with democratically mandated post-election governance.

The clarity and simplicity of this theory is a large part of its appeal. In reality, it begs a number of questions. First, no party has won a majority of votes in a UK election in the post-1945 era. At best, the winning party secures a plurality of the vote. In 2005, Labour won the election on only 35% of the national vote, implying that almost two-thirds of voters refused to endorse Labour’s manifesto. Yet Labour still claimed a mandate because it had a parliamentary majority. In 2010, the Conservatives won 36% of the vote but had no parliamentary majority. Was their mandate weaker than Labour’s five years’ earlier? Secondly, manifesto pledges are offered to voters on a take-it-or-leave-it basis: in voting for a party’s manifesto, the party will assume voters have endorsed everything in it, even if it contains things they do not like. Thirdly, most voters do not choose parties on the basis of manifestos. Nowadays, they are much more likely to vote on the basis of party leaders and overall party competence.

The mandate doctrine has exerted a strong influence on thinking about British politics since 1945. The apparent demise of the old two-party system, with the hung parliament in 2010, has finally forced us to confront some of these problems.

Demise of the Two-Party System

From 1945 till the mid-1970s, Britain was an almost classic case of a two-party system, with Labour and the Conservatives winning 90% of the votes and almost all seats. Those days are long gone. Since then, we have seen the rise of the SDP-Liberal Alliance, and then the Liberal Democrats, who now hold 57 seats out 650 in the UK parliament. Nationalist and unionist parties win about 30 seats. We have reached a point at which somewhere between 60 and 80 Westminster seats are likely to continue being won by parties other than Labour and the Conservatives, making it harder for one party to win an outright majority. Hung parliaments will become more likely, though not guaranteed.

A shift to a multi-party system would require a rethinking of the process of government formation in Britain. If hung parliaments became more frequent, coalition or minority governments would become more likely. The notion of a manifesto-derived mandate becomes even more problematical than it already is when no party manages to win a parliamentary majority.

Minority governments are a frequent occurrence in Europe, though they are also common in another FPTP nation, Canada. Minority governments have weaker mandates than majority ones and do not have the parliamentary numbers to implement their entire manifestos. Unless they enjoy supply-and-confidence agreements with an opposition party, minority governments may find themselves at the mercy of those opposition parties waiting for the right moment to bring them down. Compromises may have to be sought if any legislation is to be passed.

The other alternative is a coalition government. Coalitions can occasionally be offered directly to voters before an election and receive voters’ direct endorsement, as with Britain’s ‘coupon election’ of 1918. More usually, coalitions are formed after electors cast their votes. For supporters of the two-party system, post-election deals by parties violate the principle of the direct election of the government by the people, as coalitions are chosen by political elites.

Coalition Agreements and Manifestos

When no party wins a parliamentary majority, then no single party has the means to implement its manifesto pledges. If a coalition is formed between two or more parties, the government’s policies will usually involve a combination of the participating parties’ preferred policies. The practice in Europe, followed in Britain in 2010, is for a coalition agreement to set out the government’s policies. Coalition agreements are negotiated policy deals between parties in government and they’re intended to reduce conflict within the coalition, as well as signalling to voters the direction of policy. They tend to work more smoothly as the ideological distance between the coalition parties narrows. If there are significant differences between the parties, devising a coalition agreement is more difficult and it may contain more gaps, as conflict is postponed by ‘agreements to disagree’ or the establishment of commissions of inquiry.

When government policy is based on a coalition agreement, parties’ individual manifestos become starting points for negotiations between the parties, with pledges tradable or liable to dilution. The UK coalition agreement of 2010 combined elements of both Conservative and Lib Dem manifestos. The Lib Dems identified their priorities as the four key themes of their manifesto – fair taxes, fairness in education, a green economy and political reform, with signature policies such as raising the threshold on income tax, introducing a pupil premium and electoral reform. The Conservatives focused more on their ‘red lines’ in the negotiations – immediate action to reduce the budget deficit, toughness on defence and immigration, and no further transfers of sovereignty to the EU without a referendum. In the end, both parties secured gains on key policy areas, with clear ‘wins’ for each party on particular policies. The Conservatives won out on their red lines; the Lib Dems made progress on their four priorities.

Coalition agreements are programmes for government and so they must be internally coherent, particularly on plans for taxation and spending. That may mean the negotiating parties go beyond specific policies in their manifestos. A manifesto’s tax-and-spend policies may all fit together, but if only some of those pledges make it into the coalition agreement, while others do not, there is no guarantee that they will continue to add up. There would have to be compromise and that might involve watering-down manifesto pledges or even creating wholly new pledges. For example, all spending plans in the coalition agreement were subject to the proviso that deficit-reduction was the government’s fiscal priority.

The pledge to hold a referendum on the Alternative Vote (AV) electoral system provoked some debate because neither the Lib Dems nor the Conservatives had mentioned AV in their manifestos (though, ironically, Labour had!). However, it seemed a reasonable half-way-house between a referendum on proportional representation (the Lib Dem position) and the maintenance of the status quo (the Tory position). This pledge was vital in securing the formation of the coalition.

Perhaps the most contentious feature of the coalition agreement was the section on university tuition fees. The Lib Dems’ manifesto pledged the party to ‘scrap’ tuition fees but the reality of deficit-reduction made that extremely difficult. The coalition agreement declared that the government would await the Browne Report on university funding and that Lib Dem MPs would have the right to abstain – but not vote against – any rise in fees. After receiving the Browne Report, the government brought a bill before parliament to treble the ceiling on fees to £9,000 p.a. Most Lib Dem MPs voted in favour of the increase. Vince Cable, the Lib Dem secretary of state responsible for universities, later denied that this volte face involved a broken mandate:

We didn’t break a promise. We made a commitment in our manifesto, we didn’t win the election. We then entered into a coalition agreement, and it’s the coalition agreement that is binding upon us and which I’m trying to honour.

For supporters of the two-party system, this episode encapsulated the illegitimacy of coalition government: a minister producing a bill that directly contradicted his manifesto, but which he justified as the price of coalition government.

There is no doubt that this controversy badly damaged the Liberal Democrats’ credibility. But we should be careful before seeing it as an inevitable feature of coalition government. There were many other pledges on which compromises were struck that were not nearly as contentious. On this one, the Lib Dems’ original policy was not merely watered-down; it was directly opposed to the one they implemented in government. The pledge to scrap tuition fees was one of the key identity-defining policies of the post-Ashdown Liberal Democrat party. Along with opposition to the Iraq War, it helped define the party’s ideological identity as left-leaning. Reneging on it would inevitably damage the Lib Dems. But it’s hardly characteristic of most policies in the agreement.

Single-party majority governments are just as capable as coalitions of breaking their manifesto pledges. Tony Blair’s Labour government did not hold a referendum on electoral reform despite promising to do so in its 1997 manifesto. New Labour also announced operational independence for the Bank of England to set interest rates just five days after coming to power in 1997. This policy had not been mentioned in Labour’s manifesto on which the party had just fought and won an election, but a chorus of approval from the financial markets ensured that it came to be seen as a masterstroke.

Conclusion

If we accept the assumptions of majoritarian democracy, then the advent of coalition government is an unwelcome development. It blurs lines of accountability between voters and governments, and hands too much power to party elites, especially those in small parties. Government policy becomes based on coalition agreements that have not been directly endorsed by the voters and that undermines their legitimacy. Small parties may find themselves still in government playing a king-maker role even as they lose popularity.

In reality, there were already serious flaws in the traditional mandate doctrine. The concept of an electoral mandate becomes more ambiguous the closer one looks at it. It relies on some heroic assumptions about manifestos and voters, assumptions that are never satisfied in the real world. A party winning 36% fails to secure a mandate in one election, but in the previous election, another party won 35% and its parliamentary majority, created by FPTP, endows its manifesto with the mystical qualities of a mandate. The hung parliament of 2010 shone a light on the weaknesses of the mandate doctrine of British democracy, weaknesses that had previously been concealed by a procession of majority governments. Asking whether coalition agreements enjoy electoral mandates, therefore, is not really the right question. Of course, they don’t; but in all likelihood, neither do manifestos, at least, not en bloc, as a set of pledges. The real questions are: do they represent a logical compromise between the rival positions of the coalition parties; and, do they remain true to the spirit, if not always to the detail, of those parties’ manifestos? If coalition government is deemed necessary, a formal coalition agreement at least offers voters an outline of future government policy. The experience of 2010 is that most coalition pledges will have some origin in one or other party’s manifesto.

In this process, trust is a key ingredient. In the mandate doctrine, voters must trust governing parties to implement their manifesto pledges, but if they don’t, voters must wait till the next election to punish them. The same is true of coalitions. Some pledges may have to be traded, but if parties are seen to renege on major pre-election pledges, they can be punished at the ballot box.

We have probably entered an era in which majority governments, minority governments and coalitions are all genuinely possible. But it does appear that the old two-party system has largely gone and that in turn requires parties, voters and political observers to think beyond the old mandate doctrine about how we might conceive of the democratic legitimacy of government in a new era of the British politics.

 

Dr. Tom Quinn is a Senior Lecturer at Essex University.

(Suggested citation: T. Quinn, ‘Mandates, Manifestos & Coalitions: UK Party Politics after 2010’ U.K. Const. L. Blog (18th July 2014) (available at http://ukconstitutionallaw.org/).

 

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Natasha Simonsen:Government cannot use a ‘statutory back door’ to implement major changes to legal aid services, Divisional Court says

MatricIn a judgment released yesterday a Divisional Court unanimously struck down the government’s attempt to introduce a residence test for eligibility for legal aid, finding it incompatible with the objective of the Legal Aid, Sentencing and Punishment of Offenders Act (‘LASPO’). The ratio of the judgment was that the residence test had been introduced via an amendment to the schedule in the Act (that is, via subsidiary legislation) that was not compatible with the objective of the primary legislation. While that sounds like a rather technical decision, it has important ramifications for democratic accountability. It means, in essence, that if the government wants to make such a drastic change as this, it will need to do so via an amendment to the Act itself, with the full Parliamentary debate that that would entail. The case is also interesting because of the two rights-based grounds that were argued before it. The first, that the introduction of a residence requirement violated the fundamental right of access to a court, the court declined to engage with. The second was that residence was not a lawful ground for discriminating in the provision of legal aid between equally meritorious claims. The court accepted this claim, but apparently in obiter dicta, since only the statutory construction point was strictly required to reach the outcome.

The ratio of the judgment

Lord Justice Moses (with whom Mr Justice Collins and Mr Justice Jay agreed) held that the introduction of a residence requirement as an amendment to Schedule 1 of LASPO was ultra vires because it was not compatible with the Act. The court identified the objective of the primary legislation as being to provide legal aid to those with the greatest need. The amendment, in contrast, had ‘nothing to do with need or an order of priority of need. It is, entirely, focused on reducing the cost of legal aid’ [43]. This violated the principle that subsidiary legislation must ‘serve and promote the object of the statute’ [40].

This is important because secondary legislation does not face the same degree of scrutiny in the Parliament as does primary legislation. While primary legislation needs to be approved by a majority of votes in both Houses of Parliament, and receive Royal Assent by the Queen, secondary legislation can be either negative or affirmative. If the former, the instrument becomes law without a debate or vote but can be annulled by a contrary resolution in the Parliament. If the latter, both Houses of Parliament must expressly approve them. The respondent government had argued that, since this amendment took the form of an affirmative instrument, it had received the imprimatur of the Parliament. Notwithstanding that, the Divisional Court found that was not enough because, ‘on a true construction of the statutory powers in their context, no power to introduce such a measure can be found’ [48]. The court’s ruling reaffirms the constitutional principle that the government cannot use the means of subordinate legislation as a ‘statutory back door’ [46] to ‘widen the purposes’ of legislation that has been passed by the Parliament [40]. Changes this big need to be brought through the front door.

The residence requirement, if upheld, would have limited legal aid to those who could demonstrate ‘a meaningful connection with the UK’, unless they could demonstrate eligibility elsewhere in the legislation. Yesterday’s judgment does not foreclose the possibility of that restriction being introduced in the future. But the Court’s intervention puts the onus on the Parliament to consider and evaluate the purpose of legal aid in the UK and the objectives that LASPO aims to serve. If the legal aid is to be subjected to the pursuit of goals other than giving help to those in greatest need, then those objectives need Parliamentary approval in the form of primary legislation.

Thus, in some ways the court’s decision handballs the question back to the legislature. But the terms of any future legislative debate will no doubt be framed by the discussion of the issues in the judgment. The court discussed some powerful examples, such as P, a severely disabled adult who was starved, beaten and forced to live in a dog kennel by his mother and brother. Yet, for various reasons, it would have been impossible to prove that he had been lawfully in the UK for a continuous period of 12 months at some point in the past, and thus he would not have satisfied the proposed residence requirements. It is hard to see how depriving a person in P’s circumstances of legal aid could meet the Ministry of Justice’s specified objective of ‘targeting legal aid at the most serious cases which have sufficient priority to justify the use of public funds.’

It remains to be seen whether the government will appeal the court’s decision, or introduce amended legislation to the Parliament. Either way, the judgment has forced a fuller engagement with the question of the purpose that the provision of legal aid serves in England and Wales. This is democratic dialogue—and a culture of justification—in action.

Rights-based argument one: access to courts

The questions that the court did not decide may be almost as important as the questions that it did decide. The Public Law Project had also argued that the power contended for by the Lord Chancellor would violate the fundamental right of access to a court. But Moses LJ declined to engage with this argument, stressing that his reasoning was ‘confined to the construction of the powers that [the statute] confers’ [50]. In another passage, however, His Honour hinted at the problems that might arise in future, saying that ‘it might have been possible to draft primary legislation (I say nothing about its legality) which has the broader ambition of cutting the cost of legal aid by permitting the Lord Chancellor to adopt criteria irrespective of need…’ [45]. This foreshadows a debate which is highly likely to arise in any future legal proceedings.

The Divisional Court might be engaging in a spot of careful judicial diplomacy here. At a time when tensions are running high over the UK’s future in the European Convention system, it may not come as a surprise that the judgment turned on a narrow question of statutory construction rather than the implications of the measure for the Article 6 ECHR right of access to a court. Moreover, throughout the judgment Moses LJ referred obliquely to ‘vindicating rights’ [75] or ‘fundamental rights’ [47], [50], preferring to avoid specific reference to Convention rights or Convention case law. In this language choice, was the Court cleverly hinting here that the right of access to a court is no less entrenched in English and Welsh common law than in ECHR jurisprudence?

Rights-based argument two: discrimination

Interestingly, having reached a decision that turned on a question of statutory interpretation, and then having declined to deal with the argument based on access to justice, the Divisional Court went on to consider a third argument raised by the applicant. The judgment went on to hold that residence would not be a lawful ground for discriminating between the provision of legal aid in equally meritorious cases. This part of the judgment will no doubt provide fertile ground for equality lawyers, and has been discussed at length here and here. Rather confusingly, given that it does not appear to be part of the ratio, Moses LJ described the discrimination argument as the applicant’s ‘essential complaint’ [51]. The discussion of residence as a basis for distinguishing between worthy claimants builds on (without expressly citing) the House of Lords decision in the Belmarsh case, striking down detention of foreign nationals on the basis that the measure was not rationally tailored to the objective.

What appellate courts will make of this judgment, and how the government will respond, remains to be seen.

 

 Natasha Simonsen is a Stipendiary Lecturer in Law at St Anne’s College, Oxford .

(Suggested citation: N. Simonsen, ‘Government cannot use a ‘statutory back door’ to implement major changes to legal aid services, Divisional Court says’ U.K. Const. L. Blog (17th July 2014) (available at http://ukconstitutionallaw.org/).

 

 

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Tom Hickman: Further Concerns about the DRIP Bill

tomIn a blog post on Monday I expressed concerns about the lack of time for proper scrutiny of the changes to be brought in by the DRIP Bill.

Towards the end of that blog I expressed puzzlement at a change to be made to the definition of “telecommunications system” in RIPA. This definition is central to the scheme of RIPA and is the basis for many of the powers therein.

The Governments’ suggestion that this change is intended to ensure that services like webmail are caught is not particularly persuasive. The explanatory material provided no further explanation.

Recall, the current definition of telecommunications service contained in section 2 of RIPA states that:

“telecommunications service” means any service that consists in the provision of access to, and of facilities for making use of, any telecommunication system (whether or not one provided by the person providing the service)

A telecommunications system is defined broadly as any system for facilitating communications electronically.

Clause 5 of the DRIP Bill provides that a telecommunications service shall henceforth include services, “facilitating the creation, management or storage of communications transmitted, or that may be transmitted” by means of a telecommunications system.

One explanation for this change presents itself. Telecommunications along with many other companies often store vast amounts of data about their customers and the usage of the company’s services for their own business purposes. The data can be stored for many years and are used for the company’s own business analysis purposes (think of Amazon analysing the purchasing habits of customers). Such data can be enormously valuable to the company.

It is stored in “data warehouses” or other storage facilities and is accessed in a variety of ways by increasingly sophisticated data search and management tools.

In addition, other data are held and used on other “platforms” within telecommunications companies for the companies’ operational purposes.

Such data may no longer be on the individual systems of users, such as in their email archive or records (which companies might not retain for very long). It does not necessarily include all of the data that would be of interest to law enforcement or intelligence agencies.

But the intention of the change to the definition of telecommunications services is to provide access to such platforms and if such platforms hitherto did not fall under RIPA then this amendment would represent a substantial change in the law. It would also potentially allow access to large amounts of data going back well over a year.

This suggestion is necessarily put forward on a tentative basis given the absence of time that has been allowed for people to scrutinise the Bill or consider its implications.

But two conclusions do seem warranted.

First, these thoughts underscore how unsatisfactory it is for legislation of this nature to be presented to Parliament on a fast-track basis as a behind-closed-doors “done deal”.

I am not of course suggesting that access to such platforms would necessarily be unjustified, my point is that it needs proper scrutiny and Parliament needs to know what it is voting on.

Secondly, history may identify this amendment as the most significant part of the DRIP Bill, although it is the one being given the least attention.

The DRIP Bill will pass through the House of Lords today and there will be no further opportunity for Parliamentary scrutiny of its terms.

Tom Hickman is a Reader in Law University College London and Barrister at Blackstone Chambers.

(Suggested citation:  T. Hickman, ‘Further Concerns about the DRIP Bill’ U.K. Const. L. Blog (16th July 2014) (available at http://ukconstitutionallaw.org/).

 

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Tom Hickman on the DRIP Bill: Plugging Gaps in Surveillance Laws or Authorising the Unlawful?

tomThe unveiling last Thursday of a a draft bill on surveillance powers that is to be rushed through Parliament brought to mind the story of the Dutch boy who finds a hole in a dyke on his way to school and puts his finger in it to plug the leak until help arrives to shore it up. The legislation is said to be necessary to plug what the Government regards as holes in the regime of surveillance and investigatory powers pending a full review. The fact that the bill is titled the Data Retention and Investigatory Powers Bill – the “DRIP” bill – may mean I am not the first person to draw the analogy. But the analogy may not be entirely apt. An examination of the DRIP Bill reveals that it is not addressing little holes in the regime but in fact profoundly important and substantial issues.

The DRIP Bill will be law by the end of the week. Its unveiling in draft form on Thursday came out of the blue. The use of emergency parliamentary procedure means that there is no time for any significant consultation or lobbying and parliamentary scrutiny will be minimal.

The use of emergency procedure to enact laws that are controversial and have significant impacts on individual rights is becoming a regrettably frequent occurrence. Just over a year ago, when the Government was fast-tracking through Parliament legislation overruling a court judgment that found that thousands of benefits sanctions had been unlawfully imposed, the House of Lords Constitution Committee lamented that it was the latest in “an undesirably long line of recent fast-track legislation” and registered its concerns with the House (a strong thing for that Committee to do – see 12th Report Session 2012-13 HL 155 §6).

As on the last occasion, the Government had already secured behind-closed doors support from the Labour Party to ensure the Bill would pass without hitch or significant scrutiny. A few key Labour members have been briefed on Privy Council terms about the DRIP Bill and the reasons for it. This means that they can’t tell anyone what they were told. The consequence is that the full reasons for the measure will not be made known to Parliament or the public. The Parliamentary process will be little more than a rubber-stamping exercise.

In a statement made to Parliament on Thursday the Home Secretary identified two issue that the Bill is intended to address. She said,

we now face two significant and urgent problems relating to both communications data and interception: first, the recent judgment by the European Court of Justice, which calls into question the legal basis upon which we require communication service providers in the UK to retain communications data; and secondly, the increasingly pressing need to put beyond doubt the application of our laws on interception, so that communication service providers have to comply with their legal obligations irrespective of where they are based. (Hansard, 10/07/14 Col 456)

In other words, two holes have appeared or been identified in UK’s surveillance and investigation capabilities and the DRIP Bill is intended to plug them.

The first relates to retention by private companies of communications data (the hole is: they don’t have to retain it), the second relates to the desire to require foreign companies to co-operate with interception warrants (the hole is: foreign companies say they don’t have to comply).

Before turning to examine the contents of the Bill let me make three initial points.

First, it is said that the content of the Bill is not intended to expand the UK’s surveillance capabilities at least as they have been understood and operated by government agencies. It is intended to ensure that there is a legal basis for what is already going on. Of course, this gives rise to serious questions as to whether everything that law enforcement and intelligence agencies have been doing has had a lawful basis. One view of the DRIP Bill is that it seeking to provide a lawful basis for the unlawful exercise of power by UK agencies.

Secondly, the legislation is presented as a temporary gap-plugging measure. It has a sunset clause of 31 December 2016. The intention is that a review of surveillance capabilities and powers will be conducted and published before the 2015 General election and Parliament will legislate on the issue in the next Parliament. David Anderson QC the Independent Reviewer of Terrorism Legislation has been announced as the person who will conduct the review. Such a review is overdue and David Anderson’s appointment is welcome. But it does mean that the big issue about the adequacy of legal safeguards under the current regime is being shelved for the time being. It must be hoped that this will result in a more thorough and wide-ranging review and that will look not only at interception and data retention but also obtaining intercept material from foreign liaison partners (which is not currently within the scope of the review as it is not addressed by the Regulation of Investigatory Powers Act 2000 (“RIPA”)).

Thirdly, in an attempt to off-set the inevitable concerns raised by stop-gap legislation in such a sensitive area, the Government announced several initiatives to increase scrutiny and oversight of surveillance powers. These include (i) publication of an “annual transparency report”; (ii) the appointment of a former diplomat to review intelligence sharing with foreign governments, (iii) the establishment of a “privacy and civil liberties board” to “build on the role of the independent reviewer” of terrorism legislation. These proposals currently remain sketchy and the degree to which they will provide meaningful transparency and oversight cannot yet be judged.

Let us then turn to the content of the DRIP Bill.

The first hole: retention of Communications Data

The first hole identified by the Home Secretary arises from the judgment of the CJEU on 8 April 2014 in Digital Rights Ireland Ltd v Minister for Communications (Joined Cases C 293/12 and C 594/12) in which the court ruled that the Data Retention Directive was invalid. That ruling held the consequence (although the Government has not openly accepted this) that the implementing regulations– the The Data Retention (EC Directive Regulations) 2009 SI 859/2009- are ultra vires as the absence of an obligation under the Directive deprives them of their legal basis in domestic law.

The Directive and the Regulations were the means by which the Government required telephone and internet companies to retain “communications data” on individuals for up to a year. The information could then be obtained and used in criminal investigations and for intelligence purposes.

Communications data is information about when, where and by whom communications have been made. It is well known that communications data, although it does not include the content or terms of the actual communications, is extremely revealing about a persons’ activities and usually much more interesting to law enforcement and intelligence agencies than the content of communications.

Communications data includes information about internet services used, the user ID and time and duration of use. In the case of mobile telephones it includes when they were used, the name and address of persons who used them and the duration and destination of the communication. It also includes the location where a mobile telephone was used and even information identifying the movement, direction of travel and location from time to time of mobile devices. It was stressed in Parliament that this type of information has been instrumental in obtaining criminal convictions in cases such as that of Ian Huntley, by placing his victims Holly Wells and Jessica Chapman close to his house, even though their mobile phone had been switched off.

But this undoubted utility also shows that this type of data is enormously revealing about a person’s movements, activities, interests and associations. It in principle enables a degree of surveillance of a person of interest that totalitarian regimes infamous for the extent and depth of their surveillance could only have dreamt of. It therefore requires the strongest possible safeguards.

The invalidity of the Data Retention Directive does not affect the powers of the Government to require companies to provide it with communications data as this power is set out in Chapter II of Part I of RIPA. But the Government says that it is concerned that there is now no requirement that companies must continue to retain such data and they will begin to destroy it unless a new law is put in place.

Clause 1 of the DRIP Bill therefore provides that the Secretary of State may by notice require a communications service provider to retain data for purposes connected with protecting national security, public health, economic well being of the country and other purposes. A notice cannot require data to be retained for more than one year.

In practice it is likely that such notices would operate in a blanket fashion requiring telecommunications and internet companies to retain all data they possess or all data within certain broad categories.

There is no doubt that the legislation in this respect addresses a genuine problem that requires primary legislation to fix. It is much less clear that it is appropriate for government to be addressing the issue by fast-track legislation which avoids Parliamentary scrutiny. It was not lost on the opposition that the Government has had several months to introduce legislation to Parliament. Yvette Cooper the Shadow Home Secretary stated:

there will be serious concern, in Parliament and throughout the country, about the lateness of this legislative proposal, and about the short time that we have in which to consider something so important (Hansard, Col. 459)

Quite. Connected to this lack of opportunity for Parliamentary scrutiny is the fact that the legislation does not seek to remedy the serious problems with the regime of data retention which led the CJEU to find that it breached basic human rights.

The court said for example that the Data Retention Directive failed to restrict data retention to data pertaining to a particular time period, area or group of persons likely to be involved in serious crime and it did not specify any objective criterion by which to determine the limits of the access of the competent national authorities to the data and their subsequent use for the purposes of fighting crime. Furthermore in paragraph 62 it held:

Above all, the access by the competent national authorities to the data retained is not made dependent on a prior review carried out by a court or by an independent administrative body whose decision seeks to limit access to the data and their use to what is strictly necessary for the purpose of attaining the objective pursued and which intervenes following a reasoned request of those authorities submitted within the framework of procedures of prevention, detection or criminal prosecutions.

It concluded that there was a violation of the right of respect for private life and the right to protection of personal data as protected by Articles 7 and 8 of the Charter of Fundamental Rights of the EU.

The DRIP Bill does not attempt to meet the requirements articulated by the CJEU. (nor do the draft regulations, now available, which will be made under the Act when passed). The Government has suggested that the protections under domestic law, for example as provided by the Data Protection Act 1998, provide adequate safeguards. But apart from the fact that the Data Protection Act itself implements EU law and such data protection rules were no answer in Digital Rights Ireland, the new powers essentially derogate from data protection laws. There is therefore no reason to think that the Charter of Fundamental Rights of the EU would not be just as much violated by the DRIP Bill after it becomes law as by the Data Retention Directive. Even if the new legislation falls outside the scope of EU law (which is doubtful as data protection is generally speaking within the scope of EU law: e.g. RFU v Viagogo Ltd [2012] 1 WLR 3333) Article 8 of the European Convention on Human Rights imposes analogous requirements to those under the Charter of Fundamental Rights of the EU.

It is remarkable that the Government has not attempted to address the issues raised by the CJEU in Digital Rights Ireland and is introducing a law which appears straightforwardly incompatible with the right to privacy and contrary to a court judgment which is binding on the UK Parliament.

The second hole: interception of communications in other countries

The second hole that DRIP Bill is seeking to plug is entirely unconnected with the ruling of the CJEU and with the Data Protection Directive.

Under Chapter I of Part I of RIPA government agencies can obtain and serve interception warrants allowing them to intercept communications between private individuals. The Home Secretary informed Parliament that technological changes have meant that increasingly internet and telephone companies which provide services accessible to persons in the UK are based outside the UK and she referred to “growing uncertainty among communication service providers about our interception powers” and that service providers “based overseas need legal clarity about what we can access”.

Implicit in these statements is the fact that government agencies have been requiring companies based overseas to intercept communications or facilitate the interception of communications on behalf of UK government agencies. It seems that these foreign companies have begun to doubt that the UK government has any power to do this.

These doubts are understandable. It is a basic principle that legislation must expressly provide for extraterritorial effect if such effect is intended, more especially where the effect is to establish criminal offences on the part of persons who reside abroad, and RIPA includes no such express provision. On the contrary, various provisions of RIPA make clear that it was designed to operate alongside mutual assistance agreements which provide a specific mechanism for government agencies to obtain information through foreign authorities under mutual assistance laws. It seems that government agencies have been going direct to foreign private companies, without the need for involvement or even knowledge of foreign governments.

Clause 4 of the DRIP Bill makes express provision for service of interception warrants on companies abroad imposing on them an obligation, backed by criminal sanctions, to secure the interception of communications.

The DRIP Bill also provides that in determining whether a company or person has a defence under RIPA of having taken all steps which were “reasonably practicable” to take to facilitate the interception, regard is to be had to whether what they were being required to do by the UK agency was unlawful under the law of the foreign state (Clause 4(4)). However it falls short of stating that a person or company based overseas can refuse to cooperate if cooperation with a UK agency will involve the company or its employees breaking the law of a foreign country.

The scope of these powers should not be underestimated. It is most likely that the power to require interception by a foreign company would arise in tandem with what is called an external communications warrant issued under section 8(5) of RIPA. This applies where the sender or one or more recipient of a communication is overseas. In such cases none of the protections relating to the need for warrants to be targeted at certain people or premises apply. The Government can obtain a warrant for blanket interception of external communications on the basis that this is necessary in the interests of national security. Conditions on the search of such material should be imposed under the warrant, but these are not set out in law and the scope and nature of any such protections are unknown.

The breadth of the power under section 8(5) has been highlighted by the Snowden disclosures which have suggested that GCHQ taps into transatlantic cables containing internet and other communications traffic under a warrant issued under section 8(5) and a program known as TEMPORA. In theory at least, if RIPA has extra territorial scope, UK government agencies could obtain internet and email traffic in other parts of the world, without even the limitation that it passes through the UK, simply by requiring a foreign company to intercept the communications on their behalf by the Secretary of State issuing a warrant to this effect. That would give the UK authorities enormously wide scope for interception of communications and for obtaining internet and telecommunications traffic around the world.

The foreign company will be put in a very difficult position if, as seems likely, providing the information would be contrary to civil or criminal laws of the foreign country. The DRIP Bill perhaps gives them more comfort than previously but   as I have noted it falls short of providing them with a defence that the company or it’s employees would be acting contrary to the laws of the foreign state. What is a foreign company to do? Foreign companies could not even reveal the fact that they had been served with a warrant without committing another offence: RIPA s.19.

The full consequences of the power have not been explained and given the fast-track procedure, they will not be the subject of parliamentary scrutiny before the bill becomes law. It will be apparent from my description of the provisions of the DRIP Bill relating to extra-territorial effect that they raise big issues, and complex issues, both of law and policy, including potentially issues of foreign policy.

These provisions have not been triggered by an event or judgment such as the decision in the Digital Rights Ireland case. No doubt the Government is very concerned about loss of information currently supplied to it by companies based in foreign countries but this is hardly persuasive if it had no right to be obtaining this information in the first place. It is highly unsatisfactory that these powers should be introduced without debate and without Parliament having a clear understanding of what laws it is enacting or a full appreciation of the consequences that the laws could have.

A third hole: creating, managing and storing messages online

It also appears that the Government fears that at present certain forms of internet use to which it wishes to have access–and probably has been gaining access–fall outside the ambit of the interception powers in Chapter I of Part I of RIPA.

This was not one of the problems identified by the Home Secretary in her statement to Parliament; but included within the DRIP Bill is a new definition of telecommunication service. Let me first of all explain the relevance of this definition. Under Chapter I of Part I of RIPA the Secretary of State may authorise the interception of communications which are being transmitted by a telecommunications system (or those which have been transmitted and are being stored by a telecommunications system). The definition of telecommunications system is therefore central to the scheme of the Act. It identifies the scope of the services that can be required to allow covert access to content data by government agencies under interception warrants.

The current definition of telecommunications service contained in section 2 of RIPA states that:

“telecommunications service” means any service that consists in the provision of access to, and of facilities for making use of, any telecommunication system (whether or not one provided by the person providing the service)

A telecommunications system is defined broadly as any system for facilitating communications electronically.

Clause 5 of the DRIP Bill provides that a telecommunications service shall henceforth include services, “facilitating the creation, management or storage of communications transmitted, or that may be transmitted” by means of a telecommunications system.

The purpose and effect of this change is not self-evident. It will include within the ambit of Chapter I of Part I of RIPA web-based services that enable the creation, management and storage of messages on the internet but where the actual transmission of the message is separate service. The Explanatory Notes say that it is intended to “ensure that internet-based services, such as webmail, are included in the definition” of telecommunications services. It seems rather doubtful however that ordinary webmail services are the intended objects of this change given that such services ordinarily consist in the provision of access to and facilitates for making use of a system for transmitting electronic mail. One rather suspects that something else is going on here and it is very troubling that such a potentially significant change is being made without properly explaining the purpose behind it.

Concluding thoughts

When RIPA was enacted internet use was still in its infancy. The technological changes which now enable government agencies to obtain enormous quantities of data on the personal lives of individuals were not anticipated.

The holes in the legal regime that are sought to be plugged by the DRIP Bill are just the latest to have appeared. This month the Investigatory Powers Tribunal will hear cases challenging (i) the scope of external communications warrants under section 8(4) of RIPA in respect of the TEMPORA program (explained above) and (ii) the absence of legal rules governing the receipt of material from foreign governments which has been obtained by those governments from their own interception programs (often without safeguards). A comparable case before the Strasbourg Court has been stayed pending these hearings.

It is clear that the RIPA regime is not fit for its current purpose. That now appears to be recognised on all sides. But it does not bode well for the review of the legislation that the Government is so apparently unwilling to facilitate informed debate and understanding, even at a general level, of very intrusive powers that it asks society in general, and Parliament in particular, to grant it.

 

         Tom Hickman is a Reader in public law at University College London and a barrister at Blackstone Chambers.

Suggested citation: T. Hickman,  ‘Plugging Gaps in Surveillance Laws or Authorising the Unlawful? Concerns about the DRIP Bill. ‘ U.K. Const. L. Blog (14th July 2014) (available at  http://ukconstitutionallaw.org/).

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