Category Archives: Human rights

by | April 25, 2013 · 3:30 pm

Jeff King: Deference, Dialogue and Animal Defenders International

jeff2In Animal Defenders International, the European Court of Human Rights upheld the British ban on political advertising in the broadcast media (s.321 Communications Act 2003), consistently with the judgments of the UK House of Lords and High Court, but in an apparent departure from its previous caselaw in the VgT (Verein gegen Tierfabrik v. Switzerland, no. 24699/94 ECHR 2001‑VI) case.  The key issue in the case was whether a blanket ban (or ‘general measure’) was a proportionate restriction of the freedom of expression, or whether some class of exception (a ‘case-by-case’ approach) for groups such as the NGO in this case ought to be recognized. I am in complete agreement with Jacob Rowbottom’s view on the correctness of the Court’s judgment and the desirability of a general ban.  In brief, the problem with making case-by-case or category-based exceptions for advocacy groups is that there is a risk of profusion of ‘non-profit’ groups that are in fact created and backed by well-monied interests, the unveiling of which becomes an impossible regulatory task in the shadow of constant litigation.  The focus of the present comment is on three further matters raised by the case that are of importance for British constitutionalism: the role of judicial restraint; the merit of rigorous human rights-based parliamentary scrutiny of legislative proposals; and the value of UK-Strasbourg dialogue.

Many academics have stepped into what is often called ‘the deference-debate.’ [*] One group, in which we find Murray Hunt, Aileen Kavanagh, Alison Young, myself, and I think to a more subtle extent Alan Brady, believe that there is a role for both the practice of judicial restraint, and also for a specific doctrine of judicial restraint, though none of us is generally skeptical of the judicial protection of human rights. On the other hand, we find Trevor Allan arguing a cogent case that a doctrine (e.g. a set of overtly recognized principles) of judicial restraint would be pernicious, that it will lead to excessive deference, and that any proper role for judicial restraint is already comprehended within the legal standards themselves – in legal concepts such as proportionality, Wednesbury reasonableness, fairness and so on.  For the unanimous judgment of the House of Lords in Huang v SSHD [2007] UKHL 11, Lord Bingham made the following finding, after summarizing a range of immigration-specific factors for consideration:

 The giving of weight to factors such as these is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice. That is how any rational judicial decision-maker is likely to proceed.

 Who needs a doctrine, in other words? This largely agrees with the views of both Trevor Allan and Tom Hickman.  The problem though is that this view depends entirely on the judge having Lord Bingham’s intuitions about ‘appropriate weight,’ which are not as widely shared as we all would wish.  In Animal Defenders International, the Court split 9/8 and Rowbottom, the country’s leading legal expert on the matter, was himself convinced that Strasbourg would decide against the ban. The safe bet was on losing.

The substance of the majority’s decision gave enormous weight to the comprehensive examination of the issue within the legislative process (and in court thereafter):

 114. […] The Government, through the DCMS [the Department], played an important part in that debate explaining frequently and in detail their reasons for retaining the prohibition and for considering it to be proportionate and going so far as to disclose their legal advice on the subject (paragraphs 50-53 above). The 2003 Act containing the prohibition was then enacted with cross-party support and without any dissenting vote. The prohibition was therefore the culmination of an exceptional examination by parliamentary bodies of the cultural, political and legal aspects of the prohibition as part of the broader regulatory system governing broadcasted public interest expression in the United Kingdom and all bodies found the prohibition to have been a necessary interference with Article 10 rights.

115. It was this particular competence of Parliament and the extensive pre-legislative consultation on the Convention compatibility of the prohibition which explained the degree of deference shown by the domestic courts to Parliament’s decision to adopt the prohibition (in particular, paragraphs 15 and 24 above). The proportionality of the prohibition was, nonetheless, debated in some detail before the High Court and the House of Lords. Both courts analysed the relevant Convention case-law and principles, addressed the relevance of the above-cited VgT judgment and carefully applied that jurisprudence to the prohibition. Each judge at both levels endorsed the objective of the prohibition as well as the rationale of the legislative choices which defined its particular scope and each concluded that it was a necessary and proportionate interference with the applicant’s rights under Article 10 of the Convention.

116. The Court, for its part, attaches considerable weight to these exacting and pertinent reviews, by both parliamentary and judicial bodies, of the complex regulatory regime governing political broadcasting in the United Kingdom and to their view that the general measure was necessary to prevent the distortion of crucial public interest debates and, thereby, the undermining of the democratic process.

The Court here effectively endorses a notion of judicial restraint in deference to the substance and process by which the decisions were undertaken in this situation.  The very issue of the viability of an exception as an alternative to a blanket ban had been batted back and forth by several bodies during the legislative process (and insufficiently so by the Strasbourg court in previous cases, as the UK argued in this case). The majority judgment showed respect for that process and awareness of their own limitations in second-guessing it in a complex context, when the stakes are high.  (The concurring judgment of Sir Nicholas Bratza was even better on this and other points, but I pass over it here for a variety of reasons).

By contrast, the two dissenting judgments had no time for this.  The first group of dissenters quote the notorious court-sceptic JAG Griffith as authority for the implied point that the British courts defer too much to Parliament (Joint Dissenting Opinion of Judges Ziemele et.al., para.2), and then chastise the majority in the following terms:

“Nor does the fact that a particular topic is debated (possibly repeatedly) by the legislature necessarily mean that the conclusion reached by that legislature is Convention compliant; and nor does such (repeated) debate alter the margin of appreciation accorded to the State. Of course, a thorough parliamentary debate may help the Court to understand the pressing social need for the interference in a given society. In the spirit of subsidiarity, such explanation is a matter for honest consideration. In the present judgment, however, excessive importance has been attributed to the process generating the general measure, which has resulted in the overruling, at least in substance, of VgT, a judgment which inspired a number of member States to repeal their general ban -a change that was effected without major difficulties.”

 Both parts of this quote are misguided in my view. Dismissing the outcome because such a process can yield wrong results (obvious) is to miss the point that this process, on this issue, did deserve considerable weight for a range of substantive reasons. They include the fact that the interlocutors in that process had special knowledge of British politics, commercial media, and consumer habits, and studied the phenomenon at great length and in good faith. The second part of this quote states a claim that could be a highly material point – surely if the revoked ban had not led to problems elsewhere, then that supports the view that the blanket ban isn’t necessary.  But how do they know whether the ban has not in fact been pernicious there?  No evidence is given on this point, and we cannot assume no news is good news when we haven’t looked.  We do know that the impact of the Citizens United v Federal Communications Commission 558 U.S. 310 case in America, which struck down a not entirely dissimilar ban on ‘electioneering communications’ funded by corporations, has been terrible.   One study determined that the case accounted for 78% of campaign spending in the 2012 Presidential election.  (For a more nuanced view of its impact, see here).

The other dissenting judgment, of Justices Tulkens, joined by Judges Spielmann and Laffranque, at least addressed this issue:

 “17. The references to other systems in the context of that examination were brief and selective. The system most frequently referred to, as an example to be avoided, was that of the United States (paragraphs 37-54 of the judgment), but the latter country’s regulatory system is so different to that in issue here that the comparison strikes me as barely relevant.”

In this hubristic gesture, Judge Tulkens sweeps aside the virtually unanimous domestic agreement that it is both relevant and indeed persuasive.  What is brushed aside in the dissenting judgments more broadly include the views of the Neill Committee on Standards on Public Life, which visited several countries and reported at length to Parliament; the Joint Committee on Human Rights; the Independent Television Commission; the Joint Committee on the Draft Communications Bill; the Electoral Commission; and the unanimous opinion of the UK Parliament.  These bodies not only know local dynamics, but had greater subject-matter expertise and took more time for consideration. To offer only one illustration, the Neill Committee Report was 262 pages, and the Committee undertook visits to five countries, considered over 400 written submissions, and spent seventeen days taking evidence from 120 individual experts representing 75 organisations in public hearings held around Britain.  It also commissioned two relevant research studies, one of them analyzing freedom of expression jurisprudence.

I will not delve into the UK literature on judicial restraint here to show how the various factors adduced in that literature would counsel the right outcome here.  In brief, the relative expertise was greatly skewed towards the British institutions, both political and judicial; the exact human rights issue was the subject of protracted debate and litigation; the claimant group was not clearly politically marginalized or vulnerable to begin with (a point which is anyway not decisive here); and the cost of getting the issue wrong could be immense and irreversible (hence an impediment to much needed flexibility).  The principles of restraint and deference alluded to by the authors above all draw attention to these items and above all warn judges to resist the temptation to think that once human rights are in play, the judge decides in splendid isolation from policy or considerations of competence.   To those who think this is all obvious, the near miss in Animal Defenders International reminds us that it isn’t.

Having explored this much, I can deal briefly with my second and third points. The second concerns the value of parliamentary consideration of human rights issues.   I am presently engaged in research that examines parliamentary responses to section 4 declarations of incompatibility, and am struck by the incredible professionalism and rigour that is often (not always) found in this process. The JCHR in particular draws the direct attention of both houses to significant human rights implications of bills. It does so on the basis of advice from its legal advisor (presently Mr. Murray Hunt) and always in due consideration of the domestic and international law, as well as considerations of policy. It considers evidence submitted by a variety of NGOs and engages in extended correspondence with the Government on particular bills.  It is the interaction between this Committee, Government and Parliament, where the normative guidance set out in the jurisprudence of the courts unites with the participatory advantages and working flexibility of the legislative process. It may look revolutionary in the human rights context, but it is in fact a workaday illustration of a more widely acknowledged truth -  that pre-legislative scrutiny, as well as legislative scrutiny, is extremely valuable for helping to identify key issues before views ossify and legislative change becomes impeded by inertia and competition.  It can also potentially play a constructive role in litigation afterwards, either helping or harming a legal challenge to the Convention-compatibility of legislation (pace Article 9 of the Bill of Rights 1689 – on which see further the AHRC Report by Hunt, Hooper and Yowell, Parliament and Human Rights, pp.49-50).

The last point is that this case does represent precisely the merits of UK judges scrutinizing the state’s arguments in UK courts, in Convention-rights terms and with due consideration of Strasbourg jurisprudence, before the issue travels to Strasbourg for consideration there. The Strasbourg Court not only essentially adopted the reasoning of the UK courts, but in doing so it explicitly rowed back from its own jurisprudence (i.e. the VgT case). This is an entirely appropriate form of institutional dialogue, and shows maturity of judgment, the flip side of the much-maligned UK courts’ own willingness to apply rules laid down in Strasbourg.  The upshot of this is plain: a British Bill of Rights that acted as a substitute for the Human Rights Act 1998 would have destroyed that dialogue, and made the wrong outcome in Animal Defenders International more likely.

Jeff King is Senior Lecturer in Law at The  Faculty of Laws, UCL.

Suggested citation:  J. King, ‘Deference, Dialogue and Animal Defenders International’ U.K. Const. L. Blog (25th April 2013) (available at http://ukconstitutionallaw.org).

[*] Some important works in this vein include M. Hunt, ‘Sovereignty’s Blight: Why Contemporary Public Law Needs a Concept of Due Deference’ in Bamforth and Leyland, Public Law in a Multi-Layered Constitution (Hart 2003); A. Kavanagh, ‘Defending Deference in Public Law and Constitutional Theory’ (2010) 126 Law Quarterly Review 222 (see also her book Constitutional   Review under the UK Human Rights Act (CUP 2009) Part II; A. Young, ‘In Defence of Due Deference’ (2009) 72 The Modern Law Review 554; J. King, ‘Institutional Approaches to Judicial Restraint’ (2008) 28 Oxford Journal of Legal Studies 409, and Judging Social Rights (CUP 2012) Part II (elaborating four principles of restraint).  For the earliest statement of the best critique, see TRS Allan, ‘Human Rights and Judicial Review: A Critique of “Due Deference”’ (2006) 65 The Cambridge Law Journal 671, a position refined and enhanced in Professor Allan’s more recent (and forthcoming) work.  See also the nuanced position of Dr. Tom Hickman, Public Law after the Human Rights Act (Hart  2010) (accepting and outlining a role for ‘weight’ and guiding principles, but rejecting the idea of a doctrine).  Alan Brady’s Proportionality and Deference under the UK Human Rights Act (CUP 2012) integrates deference into the proportionality analysis in a manner that I believe has more in common with the doctrinalists than with Allan’s approach. Leadings treatise writers such as Paul Craig, Timothy Endicott and Jeffrey Jowell all recognize the role for judicial restraint but have largely steered clear of the question of whether any doctrine is necessary.

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by | April 22, 2013 · 10:41 am

Jacob Rowbottom: A surprise ruling? Strasbourg upholds the ban on paid political ads on TV and Radio

jacob-rowbottom-photoThe European Court of Human Rights has given its decision in Animal Defenders International , holding that the ban on political advertising on the broadcast media does not violate Article 10. I had been convinced that the Strasbourg Court, following earlier decisions in Switzerland and Norway, would come to the opposite conclusion – but I am relieved that they did not. The ban on political ads has been a crucial measure that has helped to keep the cost of politics down in the UK.  That said, it was a close shave. The ban was upheld by a majority of 9, with 8 dissenting. The decision was published earlier this morning, so what follows are my initial thoughts.

The approach of the majority stands in stark contrast to that in the US. While the US Supreme Court in Citizens United rejected arguments that corporate spending can distort the electoral process, the Strasbourg Court accepted the argument that ‘powerful financial groups’ can ‘obtain competitive advantages in the area of paid advertising and thereby curtail a free and pluralist debate’. Not only that, concerns about distortion are not limited to the electoral period:

‘While the risk to pluralist public debates, elections and the democratic process would evidently be more acute during an electoral period, the Bowman judgment does not suggest that that risk is confined to such periods since the democrafic process is a continuing one to be nurtured at all times by a free and pluralist public debate.’

This is an important element of the ruling, as it allows the state to take measures to tackle concerns about money in politics generally while staying within the requirements of Article 10.

The key area of debate was not the rationale of the measure, but the proportionality of the ban. The Court found that a partial ban on political advertising – for example allowing some issue advocacy – was unlikely to be workable, noting that such avenues were likely to be abused by ‘wealthy bodies with agendas’. Furthermore, the ban only applied to one type of media, and thereby leaving opportunities for alternative means to communicate, such as newspapers or social media.

Also significant was the fact that the ban had been considered by the UK on several different occasions, such as the Neill Report, in pre-legislative scrutiny and in court. This distinguishes it from cases such as Hirst, where a ban on prisoner voting rights had been maintained without any discussion. The Court thereby attached ‘considerable weight to these exacting and pertinent reviews, by both parliamentary and judicial bodies’.

But what about the previous decisions of the Strasbourg Court in relation to Switzerland and Norway? This I think was the biggest challenge facing the UK government when they were arguing their case. Most interesting here are comments from Judge Bratza who commented that the Court’s decision in VgT Verein:

‘did not do full justice to the purpose of the general prohibition in the legislation, which was to avoid leaving to individual judgment questions such as the wealth or influence of the individual, political party or association or the worthiness or morality of the polifical cause in question, with the attendant risks of discriminatory treatment.’

Consequently, he confessed ‘to entertaining certain doubts about the Chamber’s judgment in the case.’

By contrast, the dissenting opinion of Judges Ziemele, Sajo, Kalaydjiyeva, Vucinic and De Gaetano described the contrast with the Court’s earlier decisions as a ‘double standard within the context of a Convention whose minimum standards should be equally applicable throughout all the States parties to it.’ However, rather than being a double standard, the majority’s approach maybe an example of the way that dialogue with the UK shaped the ECtHR’s jurisprudence – or more cynically how the Court was influenced by the existing political tensions between the UK and Strasbourg.

The reasoning of that group of dissenting judges also shows a divide in the Court concerning its Article 10 jurisprudence. While the majority stressed the need for the ban to address distortion in public debate, those dissenters called it ‘well-intentioned paternalism’. Ziemele, et al emphasized Article 10 as primarily a negative right against state measures:

‘Promoting a right where it cannot be effective without additional State action is, according to our jurisprudence, appropriate, but is not a generally accepted primary ground for rights restriction. There is a risk that by developing the notion of positive obligations to protect the rights under Articles 8 to 11, and especially in the context of Articles 9 to 11, one can lose sight of the fundamental negative obligation of the State to abstain from interfering. The very initiative to legislate on the exercise of freedom in the name of broadcasting freedom, and in order to promote democracy in general terms, and for aims which may not necessarily fully conform to one or more of the legitimate aims of Article 10 § 2, remains problematic. The ban itself creates the condition it is supposedly trying to avert – out of fear that small organisations could not win a broadcast competition of ideas, it prevents them from competing at all. It is one thing to level a pitch; it is another to lock the gates to the cricket field.’

The final sentences attacks what it sees as a ‘level-down’ approach to political equality. Similarly, they went on to say:

‘Freedom of expression is based on the assumption that the speakers, not the Government, know best what they want to say and how to say it. Ideas can compete only where the speaker is in a position to determine, within the limits recognized by the Convention, which form of imparting ideas serves best the message.’

I think these criticisms are misplaced. TV is not a politics free zone, so I don’t think the gates are locked. It is just one type of transaction that is blocked. I think the state plays an important role in ensuring that the opportunities for communication are not skewed in favour of those with the deepest pockets. The case for the ban is not that people cannot decide for themselves, but that different groups should have equal opportunities to persuade people of the merits of their position.

The decision in Animal Defenders International has come as a surprise to me, but – and many will disagree with me on this point – it is a pleasant surprise. It is one in which the Strasbourg Court has moved away from its earlier jurisprudence and emphasized the importance of insulating political debate from the inequalities in wealth.

Jacob Rowbottom is a Fellow of University College, Oxford.

Suggested citation: J. Rowbottom, ‘A surprise ruling? Strasbourg upholds the ban on paid political ads on TV and Radio’  UK Const. L. Blog (22nd April 2013) (available at http://ukconstitutionallaw.org)

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by | April 12, 2013 · 9:52 am

James Lambert: Law Via the Internet Conference 2013

J LambertWhy is an international conference on free access to law being hosted this year in Jersey (population 90,000 and British Crown Dependency)?

It is 11 years since the declaration on Free Access to Law was signed in Montreal  and the Free Access to Law Movement was founded.  Since then the movement has grown to include organisations from more than 50 countries, and recent Law Via the Internet (LVI) conferences have been hosted by members in Africa, Asia and North America.  Now, for the first time, LVI comes to the British Isles.

The Jersey Legal Information Board  has been a member of the Free Access to Law Movement since 2008 and is proud to host LVI2013, where the over-arching theme will be “Free Access to Law in a Changing World”.  But where does Jersey’s pedigree, in the free access to law context, come from? The Jersey Legal Information Board (JLIB) was established in 1999 under the chairmanship of the Island’s chief justice.  As a direct provider of legal information, JLIB is almost unique in being a government sponsored agency.  JLIB’s Vision is for Jersey’s legal system “to be, and be recognised as, the global best for a small jurisdiction”. Historically, JLIB has played a major role in ensuring that the Island’s statutes and case law have been made available online to Jersey’s legal profession, and to prospective investors and regulators worldwide.  More recently, there has been a strategic shift towards making the law more widely and freely accessible to all, and to support this process, JLIB has been a member of the Free Access to Law Movement for the last 5 years.

One of many issues regularly debated by the Free Access to Law Movement, and a particular problem that afflicts Jersey as a small island jurisdiction, is the issue of balancing public interest and open justice with the privacy of the individual, which will be a major theme of this year’s conference.

The principle of open justice is regarded as being of constitutional significance.  In the past, when judgments remained in practical obscurity, there were few privacy issues (the effort required to extract them from the Court archives exceeded the desire to view them).  However, now that they are published on the Internet, Googling a name has become a pastime for the idle or inquisitive.  JLIB has received complaints from people who committed serious offences as young adults, were sent to prison, but now 10 or 12 years later are trying to get their lives back on track.  They feel haunted by the publication of judgments which can be read by prospective employers, people who would like to settle old scores, or people they meet in the street.  This is especially significant to a small island population.

Neither the Data Protection Law nor the Rehabilitation of Offenders Law in Jersey restrict the publication (in full) of judgments on the JLIB website.  However, it would not be unreasonable to apply a process of redaction (or ‘pseudonymisation’) to protect the identity of victims and witnesses involved in criminal cases.

JLIB has addressed this issue by working with the courts, the Children’s Service and the Data Protection Commissioner to agree a protocol for when a judgment should be redacted or indeed retained in a restricted area of the website to which access is limited to the legal profession and the judiciary.  These include:

  • Criminal cases involving under-18s – redacted.
  • Criminal case victims and witnesses – redacted.
  • Trust cases involving minors – redacted.
  • Sexual assault case victims – redacted and restricted access.
  • Public Law Children cases – redacted and restricted access.
  • Adoption cases – redacted and restricted access.

Statute law already prevents the identification of victims of sexual assault, under-18s in criminal or public law children proceedings, and adopted children.  The above protocol therefore reflects and exceeds existing statutory requirements, and is included in a set of guidelines which have been shared with other Free Access to Law Movement members.

Balancing of interests involves an examination on a case by case basis, and balancing the need for judicial accountability with the need for the privacy of the individual.  However, the stated view of Jersey’s judiciary and over-riding principal is that justice must be seen to be done.  Public trust and confidence in the justice system would be jeopardised if judicial hearings were routinely held in private.  There is also a need for open and public hearings to satisfy the public or community catharsis.

Since the Arab Spring, there has been an increasing interest in free access to law in countries where the rule of law is only starting to be established.  Publicly available free access to law is seen as essential in the move towards establishing democracy, respect for human rights, and the creation of a market economy.  Most people in these countries are very familiar with mobile technology, with expectations of receiving information, legal or otherwise, via the Internet.  For the first time, therefore, the conference will include a track entitled ‘Online legal information – starting from scratch’ followed by a practitioners workshop.

The conference is already attracting global interest from places as far afield as Japan, Vanuatu, New Zealand, Namibia, Australia, Zimbabwe, USA, Canada, Mongolia – not to mention many jurisdictions closer to home.  The Conference takes place on 26-27th September 2013, and further details can be found here.

James Lambert is Director of Services in the Jersey Court Service.

Suggested citation: J. Lambert, ‘Law Via the Internet Conference 2013’ ,  UK Const. L. Blog (12 April 2013) (available at http://ukconstitutionallaw.org).

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by | March 30, 2013 · 7:51 am

Conor Gearty: The Important Inconvenience of the Rule of Law

conorOmar Othman is a resident of this country – guilty of no crime and up to now facing no charges – whose home country wants to put him on trial in a case where the key evidence against him will in all likelihood have been procured by torture. The only reason he probably won’t be tortured is because the state concerned has reluctantly promised (as an inducement to get him back) not to follow its usual routine.

If this person’s name were MacKinnon or Giles or Gary and the country Syria or Sudan, we’d have outraged Daily Mail editorials and a civil libertarian Home Secretary.  But it is Abu Qatada and the state is Jordan.

In politics universal values (the rule of law; the protection of human rights; the prohibition on torture) are fine – but only so long as they don’t get in the way of our diplomatic or political interests, the career ambitions of our leading politicians, or the propensity of our allies to do evil.

The law doesn’t work like this.

It deals in legal commitments.  No bit of the Human Rights Act or of the European Convention on Human Rights or the Convention Against Torture has a proviso ruling out their protection for foreigners with ‘funny’ names or for those with the ‘wrong’ ethnic or religious backgrounds.  The three senior judges who have just reminded the government of this yet again in the latest ruling on Abu Qatada are not necessarily liberal, or progressive, or devotees of some kind of judicial cult worshipping at the shrine of Shami Chakrabarti.  They are just doing in a dull old-fashioned kind of way what is made inevitable by their training, their culture, and the unequivocal democratic laws that it is their job to apply.

The facts of this case are surely by now well-known.  It concerns the refusal by the Secretary of State to revoke the deportation order against Abu Qatada notwithstanding the ruling of the European Court of Human Rights that to send him to Jordan for trial would in the circumstances amount to a flagrant denial of his article 6 right (under the European Convention) to a fair trial.  The Special Immigration Appeals Commission having made the decision to uphold the application, it was always a long shot that the Court of Appeal – with oversight only on issues of law – would overrule its specialist subordinate, and so it turned out.  Here was a ‘detailed and careful judgment by an experienced tribunal’ (para 42) on the nature of the burden of proof and on what is entailed by the ‘flagrant denial of justice’ test that applied to cases such as the one before the court.

The subject matter also mattered.

As the Master of the Rolls, speaking for the Court of Appeal, put it:

‘Torture is universally abhorred as an evil.   A state cannot expel a person to another state where there is a real risk that he will be tried on the basis of evidence which there is a real possibility may have been obtained by torture.  That principle is accepted by the Secretary of State and is not in doubt.  That is the principle which SIAC had to apply in the present case in the light of all the evidence that it heard and read.  This included evidence as to what had happened and what there was a real risk would happen if Mr Othman faced a retrial on the very serious charges that he faces.  SIAC found that there was a real risk that evidence obtained by torture would be admitted at the retrial and that, as a consequence, there was a real risk that he would be subject to a flagrant denial of justice’  (para 58)

Successive governments and the Tories in particular have long had a problem with the rule of law.  It seriously inhibits the security services in their desire to take national security wholly back – Cold War style – into the realm of the executive.  It also inconveniently stands against the populist manoeuvring favoured by the dark side of both main Parties.

But ….

The rule of law is what Conservatives in particular were brought up to believe in, a bit of the imperial history (Magna Carta, Blackstone, Dicey; etc) that Michael Gove will soon be making all little Englanders learn by rote.   In the good old days the judges saved embarrassment by looking the other way when radicals were shafted, shocking bail conditions imposed, foreigners unceremoniously thrown out.  This went on right into the 1980s (Spycatcher; the Birmingham Six; the miners’ strike).   But things have changed.  The Hales, Neubergers, Dysons of today are not the ex-servicemen, rabid anti-Communists and Tory placemen of yesteryear.  And there is now the European Court of Human Rights to keep them honest, as it did in the Abu Qatada case itself last year when overruling our judges’ effort to be relaxed about torture evidence as long as it was being allowed in Amman and not the Old Bailey.

This is how the Court of Appeal dealt with the politics, what in cricket might be called the straightest of straight bats:

‘Mr Othman is considered to be a dangerous and controversial person.  That is why this case has attracted so much media attention.  It is entirely understandable that there is a general feeling that his deportation to Jordan to face trial is long overdue.   But the principles that we have to apply do not distinguish between extremely dangerous persons and others who may not constitute any danger in the United Kingdom and whom the Secretary of State wishes to deport to face trial in another country.  The fact that Mr Othman is considered to be a dangerous terrorist is not relevant to the issues that are raised on this appeal.  It would be equally irrelevant if we were deciding the question whether there was a real risk that he would be tortured if he were returned to Jordan.‘ (para 56).

What will the government do?

In the short term it has enough legal devices to hand to continue to make the life of Abu Qatada and his family hell without exposing their hand against him in any kind of fair prosecution for a serious offence.  If they get the chance they might even press charges if they can be assured of the secret justice for which they have been fighting so hard in recent weeks.

In the longer term the Conservatives only get away with supporting universal values like the rule of law and human rights while also condemning non-white foreigners, deadbeat immigrants and benefit scroungers because they are always silently whistling that none of the values we supposedly uphold really in truth applies to these reprobates.  Nigel Farage has thrown the Party into a panic precisely because he is talking about this, not covertly whistling.

Short of abolishing the rule of law and universal human rights  the party is left with the poor consolation of being able only to shout insults at the judges –like a political version of the limbless black knight in Monty Python and the Holy Grail who roars at his adversary ‘Come back and I’ll bite your legs off.’

 Conor Gearty is Professor of Human Rights Law, LSE, and a Barrister at Matrix Chambers.

Suggested citation: C. Gearty ‘The Important Inconvenience of the Rule of Law’ UK Const. L. Blog (30th March 2013) (available at http://ukconstitutionallaw.org)

An earlier version of this post appeared in The Guardian.

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by | March 21, 2013 · 5:13 pm

Helen Fenwick: The Report of the Bill of Rights Commission: disappointing Conservative expectations or fulfilling them?

helen1The Commission delivered its Report – A UK Bill of Rights? – The Choice Before Us – to the Government in December 2012. It is an odd document, dominated by the lack of agreement in the Commission as to the role that any human rights’ instrument in Britain should play. That was unsurprising since at the inception of the Commission the Coalition partners appeared to want it to play two different roles – defending or attacking the HRA. From the very outset the Commission and the idea of a Bill of Rights (BoR) was relied upon by Cameron and other senior Conservatives to allay anger in the Conservative party, and among some voters, directed at decisions made under the Human Rights Act. David Cameron announced the Commission’s inception in March 2011 at Prime Ministers’ Questions as a reaction to criticism of the decision of the Supreme Court that sex offenders should be able to challenge their inclusion on the Sex Offenders’ register. He indicated that a BoR would address the concerns expressed (17.3.11; see the Telegraph in relation to R and Thompson v SSHD). The idea that a BoR could right the wrongs of the HRA – would provide a panacea for the HRA’s ills – had apparently been embedded in the Conservative party psyche for some years: David Cameron in a speech to the Centre for Policy Studies in 2006 Balancing freedom and security – A modern British Bill of Rights said that the HRA should be repealed: “….The Human Rights Act has a damaging impact on our ability to protect our society against terrorism…. . I am today committing my Party to work towards the production of a Modern Bill of Rights”. In contrast, the 2010 Liberal Democrat election manifesto promised to “Ensure that everyone has the same protections under the law by protecting the Human Rights Act.”

This piece will suggest that the ‘panacea’ notion was always an illusion. It will argue that the polarised nature of the Commission in political terms, and its remit, inevitably meant that Cameron’s apparent expectations of the goods its Report would deliver were always likely to be disappointed, but that its key proposal – that there should be a new BoR – might prove advantageous in future for the Conservative party.

The majority proposal of a new Bill of Rights

The Commission was obviously constrained by its terms of reference, which most significantly included the following: to “investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties” (see Ministry of Justice18.3.11). If some senior Conservatives considered that the BoR could be used to restrict rights, that remit meant that it was obviously unlikely to deliver that result.

The Commission found that the strongest argument, and the one advanced by the largest number of their respondents, was that the UK already has a bill of rights in the shape of the HRA (A UK Bill of Rights? – The Choice Before Us, Overview, para 68). But, in a decision criticised by the minority (Prof Philippe Sands QC and Baroness Helena Kennedy) the majority in the Commission did not accept that therefore enactment of a new Bill of Rights was unnecessary since: ‘there is a lack of public understanding and ‘ownership’ of the Human Rights Act’ (Report, para 80) which they found was ‘equally, if not even more, evident in relation to the European Convention on Human Rights and the European Court of Human Rights’. In other words, the majority did not accept that the HRA was already playing the role of a BoR and could just continue to do so.

The majority in the Commission did not think that a public education programme about the HRA (para 7.36) or ECHR was the answer because public perceptions were not likely to change (para 12.8); so they found that there was a strong argument for a fresh beginning in the form of a new BoR (para 12.7), but without recommending repeal of the HRA. Seven out of the nine Commissioners therefore recommended introduction of a Bill of Rights: “a majority of members believe that the present position is unlikely to be a stable one. Some of the voices both for and against the current structures are now so strident, and public debate so polarised, that there is a strong argument for a fresh beginning.” (para 84) Two of the Liberal-Democrat nominees in the minority, Helena Kennedy and Philippe Sands, in their separate paper in Vol 1, disagreed with the proposal for a new BoR; they also disagreed with the majority on the issue of support for the HRA and pointed out that the current arrangements were more strongly supported in Wales, Scotland and Northern Ireland than in England. But although the majority of the Commission gave support to the introduction of a new BoR (para 12.7), the role it should play in terms of creating a ‘fresh beginning’ remained unclear, as discussed below.

A polarised Report

The uneasy compromise reached between the two parties in setting up the Commission was reflected in its membership – split between nominees from each party – and in the fragmented nature of the Report itself, which contains no less than eight separate papers by Commission members or groups of members, dwarfing the sections of the Report that the majority managed to agree on. Indeed, it would not be too much of an exaggeration to say that seeking to discover any majority proposals in the Chapters in Volume 1 among the mass of descriptive material, discussion of the views of respondents, and the separate papers, is a strangely onerous task. There are two volumes running to 514  pages combined, but aside from the short ‘over view’ section at the beginning of Volume 1, it is hard to find more than about 15 pages in the body of the Report dealing with the proposals, and even those pages are largely concerned with the views of the respondents. Clearly, lack of unanimity meant that the Commission had to rely on majority views from respondents. However, the majority departed from those views in relation to the key proposal that there should be a new BoR rather than relying on the HRA as a BoR.

The separate papers reveal that the ideas of the Commission members as to the role a Bill of Rights should play are, overall, not reconcilable with each other. As Helena Kennedy and Philippe Sands put it in their separate paper: “the fault lines amongst us are real and deep”. On the one hand, a number of the Conservative nominees, reflecting views expressed at various times by Cameron, Grieve and May, appear to consider that it should be utilised to enhance Parliamentary autonomy and escape from the ‘absolutism’ of the ECHR, or from the ECHR altogether; on the other, the view of the Liberal Democrat nominees could be characterised as being that rights’ protection should be enhanced or maintained, either by means of a new BoR or via the HRA.

Baroness Kennedy and Philippe Sands’ minority paper entitled “In Defence of Rights” opposed the idea of a new BoR, but said: “We remain open to the idea of a UK Bill of Right were we to be satisfied that it carried no risk of decoupling the UK from the Convention”, a proposition they were not prepared to be associated with. They did not support a new BoR because their work on the Commission had “alerted [them] to what they believe is the real possibility that some people support a UK Bill of Rights as a path towards withdrawal from the European Convention” – a view expressed by a number of their colleagues on the Commission (ie certain of the Conservative nominees) (para 12.5). Lord Faulks QC and Jonathan Fisher QC in a paper entitled ‘Unfinished Business’ found: “In the period since our appointment as members of the Commission on a Bill of Rights it has become increasingly clear that a key issue, if not the key issue, has not been adequately considered by the Commission and reflected in the terms of its report. The issue concerns how the UK should respond to the judicially activist approach taken by the European Court of Human Rights to the ECHR over the last 30 years”. They concluded that “there are strong arguments that the cause of human rights, both in the UK and internationally, would be better served by withdrawal from the Convention and the enactment of a domestic Bill of Rights.”

Given such polarisation of ideas in the Commission as to the role of the HRA, ECHR and any new BoR, it is unsurprising that the ideas put forward for the content of any BoR were highly tentative and cautious, and that proposals for a BoR, as opposed to the HRA, put forward at various points in pursuit of the ‘BoR as panacea’ notion in particular by Dominic Grieve, did not find their way into the Commission’s proposals.

Would the ‘proposals’ if realised in a BoR create a difference from the HRA?

While the majority on the Commission agreed that there should be a new BoR, they were clearly unable to agree on its content. So the discussion below struggles to identify any clear recommendations from the majority that would differentiate such a BoR from the HRA. In general there are no ‘proposals’ in the sense of firm recommendations – the majority would only go so far as to identify matters worthy of consideration if a BoR was ever in contemplation.

Enforcement mechanisms and the impact of the Strasbourg jurisprudence

The problem, from the anti-HRA viewpoint espoused by a number of senior Conservatives, is partly that the interpretations of the Convention rights at Strasbourg on a number of contentious issues – in particular prisoners’ voting rights, aspects of counter-terrorism law and deportation of non-citizens – are ones that are not assented to by the Westminster Parliament, or in some instances by judges in the House of Lords/Supreme Court, (SSHD v AF (no 3) (2009)) but which may have effect in UK law (see eg Theresa May’s speech to the conservative party conference in Oct 2011) or in effect constrain Parliament (eg compare PM Qs 24th Oct 2012 cols 922-3 with the Voting Eligibility (Prisoners) Draft Bill Nov 2012, Cm 8499).

From this viewpoint the effects of ss2 and 3 HRA combined, or of ss2 and 6, are part of the problem. S2 HRA can operate in conjunction with ss3 or 6 to allow a Strasbourg decision, that happens to bear on a matter currently in front of a domestic court, to have legal effect in domestic law (as occurred in AF no3), before the executive has a chance to react to the decision. While the government is bound under Article 46 ECHR by final Strasbourg decisions, the executive might well prefer to delay and procrastinate, or to bring forward legislation to Parliament which might represent a more minimal response to the Strasbourg decision than court-based findings would or might.

Senior Conservatives have proposed changes to s2 HRA to create greater leeway for courts to depart from Strasbourg, presumably partly with a view to creating more ‘wriggle-room’ in relation to the Article 46 duty. In 2009 Dominic Grieve said that the equivalent of s2 HRA in a BoR should allow or require the domestic courts to take a different stance from Strasbourg in a wider range of circumstances than those currently accepted. Grieve has argued that the HRA had been “interpreted as requiring a degree of deference to Strasbourg that I believe was and should be neither required nor intended”. Instead, he said, a new bill of rights, which would replace the Human Rights Act, would make it clear that British courts could allow for UK common law to take precedence over decisions by the Strasbourg Court: “We would want to reword it to emphasise the leeway of our national courts to have regard to our own national jurisprudence and traditions and to other common law precedents while still acknowledging the relevance of Strasbourg court decisions” (Grieve Middle Temple Lecture, 2009). He has also said: ‘there is no duty in the ECHR to follow Strasbourg case-law’ (Conservativehome blog 2009). Commission member Anthony Speaight said on this in evidence to the Constitutional Reform Select Committee in 2011: ‘the court…makes decisions that something or other is a human right that would not by the average Briton be regarded as a human right….’. Grieve’s key speech on the ECHR in 2011 targeted s2 HRA as a failing section on the basis that it allows Strasbourg interpretations of the ECHR too much purchase in domestic law. He has also said on s3 that it is wrong that courts should ‘have power to stand a statute on its head’ (Conservativehome blog 2009).

Unsurprisingly, the Commission’s proposals did not meet these concerns. In seeking to interpret the Convention rights under the Human Rights Act, the domestic judiciary must merely ‘take into account’ any relevant Strasbourg jurisprudence, under s2; it was clearly the intention underlying s2 that the jurisprudence would not be viewed as, in effect, binding (see Klug and Wilbore ‘Follow or Lead?’ (2010) 6 EHRLR 621). But the stance taken towards s2 in the jurisprudence overall bears little relation to the wording it employs. It was found in Ullah in the House of Lords that the judges should follow any clear and constant jurisprudence of the Strasbourg court, a finding generally referred to as ‘the mirror principle’, (eg Lewis ‘The European Ceiling on Human Rights’ [2007] PL 720) which until recently remained the dominant approach (Manchester CC v Pinnock (2010)). On the other hand, in R v Horncastle (2010) the Supreme Court considered that departure even from clear jurisprudence was exceptionally acceptable under s2 HRA, as Parliament originally intended. The Commission noted that there was a substantial body of opinion that wanted to enable it to be made clearer that courts were free to depart from Strasbourg (at paras 56 and 57). The Commission noted that JUSTICE had reflected this position: “there has been a longstanding debate on whether section 2 [of the Human Rights Act] requires our judges to be bound by the jurisprudence of the European Court of Human Rights. Although there is a clear line of case law which suggests our judges consider themselves so bound, there is nothing in the Human Rights Act 1998 which requires this approach…The judges themselves appear to be moving away from this unduly restrictive approach…Rightly we consider that the language in the Human Rights Act 1998 strikes an appropriate balance between respect for the boundaries of the Convention and encouragement of the development of independent domestic rights jurisprudence.” (para 56)

But although, as JUSTICE noted, it cannot be said that the judges have confined themselves only to ‘taking account’ of the Strasbourg jurisprudence, the Commission did not propose a change to the position under s2: ‘There was also a clear majority in favour of maintaining the requirement in the Human Rights Act on UK courts to ‘take into account’ relevant judgments of the European Court of Human Rights with three quarters of those responding on this issue wanting to maintain the current formulation. However, a number of those taking this view did so on the basis that our courts were now correctly interpreting the Act’s wording in this respect having failed on some occasions to do so in the past’ (para 58).

The Commission proposals were somewhat equivocal as to the key current domestic ECHR enforcement mechanism in s6 HRA, recommending in its ‘over-view’ that consideration should be given to broadening the definition of ‘public authority’ so that private sector organisations providing public services would count as ‘public authorities’ (para 97) although in the Conclusions chapter it merely stated that “the current definition of a public authority within the Human Rights Act should be looked at again if a UK Bill of Rights were to be taken forward” (para 12.26).

Grieve had proposed that the s10 HRA fast-track procedure for responding to a s4 declaration should be abolished (British Academy Forum (2010)) which would be one means of limiting the impact of s4, which has come to be viewed as creating a de facto obligation upon the executive to act, even though as a matter of law a s4 declaration can be disregarded. But the Commission proposed no change to ss4 or 10, finding that s4 had performed successfully (para 12.25).

Overall, no ideas for significant changes to the interpretation and implementation of the rights in the UK were put forward by the majority to warrant consideration in relation to any BoR. The Commission concluded that the mechanisms in any UK Bill of Rights should be broadly similar to those in the Human Rights Act (para 95).

Changes to the listed rights?

Any aim of senior Conservatives of seeking to weaken the ties to Strasbourg via a BoR would not be realised via changes to the listed rights, as far as this Report is concerned, which was no doubt inevitable, given the Commission’s remit. The Commission said that it did not oppose the concept of additional rights in a BoR in principle (para 12.18). When listed rights were referred to in the Commission’s proposals, the reference was, it appears, to the list of ECHR rights in Sched 1 HRA (para 12.11) possibly with some additions. The Commission considered the inclusion of a right to jury trial, but the Report found that there were problems regarding the forms that a right to trial by jury could take (paras 8.41, 8.44). It also looked at the possible inclusion of rights to administrative justice and the creation of limits on the power of the state to impose administrative sanctions without due process of law, such as fines for speeding (British Academy Forum (2010)). The Commission merely concluded that consideration should be given to inclusion of such rights (para 8.44), if there was to be a BoR.

The free-standing anti-discrimination Protocol, Protocol 12 ECHR has not been ratified by the UK and there are no indications at present that the current government intends to ratify it. None of the speeches of Conservative spokespersons before or after the 2010 Election made mention of the possibility of protecting the further rights under Protocol 12. The Commission found that if a BoR was under consideration in future “the most obvious candidate for inclusion” was Protocol 12 and the “right to equality and non-discrimination currently enshrined in the Equality Act 2010″ (paras 8.15, 8.23 and 91).

Various groups put forward arguments to the Commission for specific additions to the current HRA Sched 1 rights, such as the inclusion of certain socio-economic rights (eg Children’s Rights Alliance advocating the inclusion of children’s rights). But the Commission did not recommend that particular “socio-economic” or environmental rights should be added to a bill of rights: “All other things being equal a majority of members believe that such choices are better made by Parliaments rather than judges.” (paras 91and 8.21) Similarly the Report noted that “Approaching 100 respondents to our consultations were in favour of the incorporation into any UK Bill of Rights of rights contained in international instruments which the UK has already signed but not fully incorporated into our domestic law” (para 8.45), but did not make a proposal that such rights should be included.

So in terms of the list of rights covered, any Bill of Rights based on these proposals could look something like an ‘HRA plus’ (term used by JCHR), but not plus much. Chapter 8 of Vol 1, which considered these rights, was concerned more with the views of respondents to the Commission, than with clear proposals.

The question whether a BoR should give greater guidance to judges on balancing competing rights was answered in the negative: ‘On balance our conclusion, in line with that of the majority of respondents on this issue, is that if there were to be a UK Bill of Rights the balancing of competing rights within such a Bill, where such occurred, would be better left to the courts not least because of their ability to weigh the competing considerations against the facts of the particular case before them.’ (para 8.51)

The Commission considered that changes to the wording used to express the rights could be employed to create a distinctively ‘British feel’ to the instrument in order to address the public’s lack of allegiance to the HRA. It was not proposed that the wording of the rights themselves should see any radical change but the Commission considered that if a BoR was under consideration it would be “desirable in principle” that its wording should reflect “the distinctive history and heritage of the countries within the United Kingdom.” (para 86 and 8.8)

Relationship between the ‘proposals’ and the concerns about the HRA identified by the majority

One of the firmer conclusions of the majority was that “the key argument is the need to create greater public ownership of a UK Bill of Rights than currently attaches to the Human Rights Act” (para 12.11). However, the proposals that emerged would be unlikely, if realised in practice, to address that need, taking account of the context – the apparently deep public dissatisfaction with the HRA. They are so modest and cautious (even leaving aside the devolution context which clearly provided a problematic back-drop to the Commission’s work) (Chap 12, 12.3, 12.4 and Chap 9) that they might be said to amount in effect to a proposal to re-badge the HRA in a BoR, despite the Commission’s acceptance that it has become discredited in the eyes of the public. A key question, unexplored in the Report, is – why is there dissatisfaction with the HRA? Of course there was no public information campaign prior to its introduction, leaving a vacuum which created room for a narrative hostile to the HRA to take hold. Lord Lester, speaking as a member of the Commission, has attributed the nature of that narrative to a prolonged media attack on the HRA which has at bottom the purpose of protecting their own commercial interests; he said on this issue to the Political and Constitutional Reform Committee in 2011: “some sections of the media—self-interested, God bless them—have campaigned vigorously against the Human Rights Act, totally unscrupulously, completely unfairly, mischaracterising everything as being a result of the Human Rights Act…” (Answer to Q 59). He indicated that the hostility might spring from restrictions “on their right to invade personal privacy” created by the HRA (Answer to Q 65).

For example, the idea – part of the media campaign against the HRA – that human rights’ concerns stand in the way of Britain’s ability to combat terrorism, has found a particular focus in relation to Abu Qatada (see eg The Sun 15.4.12). David Cameron’s speech to the Parliamentary Assembly of the Council of Europe in 2012, during the UK’s six month chairmanship of the Council, reiterated the theme of seeking enhanced subsidiarity as a key reform. He referenced counter-terrorism and prisoners’ voting rights as examples of issues on which the Court should be very slow to intervene, once democratic debate on the issue and full scrutiny in national courts, taking the Convention into account, had occurred. Referencing the Qatada case as illustrating the need for reform, he said ‘we have gone through all reasonable national processes…yet we are still unable to deport [or detain him]’. Thus, parts of the media and senior members of the Conservative party have taken the stance – possibly coincidentally – that the Human Rights Act makes dealing with suspected terrorists harder, putting lives and national security at risk; and the lines between the actual impact of the HRA in this respect in legal terms, and what would occur in any event under the ECHR at the international level, have become blurred, perhaps intentionally.

Thus if a BoR was to be introduced, based on these proposals, which would play a role very similar to that of the HRA, it would appear probable that parts of the media might attack it as a merely re-badged HRA, leading again to public dissatisfaction with the new BoR. But conversely and unpalatably it might appear to follow that if a new BoR was introduced post-2015 under a Conservative government, not based on these proposals, and disassociated from the ECHR, it would be welcomed by parts of the media, meaning that it might be more likely to command public acceptance, at least in England.

Conclusions

It is concluded that there was never any real basis for considering that the Commission might propose a BoR which would answer to the expectations of a BoR expressed by Cameron in 2011. Clearly, the split in nominees, on party lines, and the Commission’s remit, always suggested that the proposals for a BoR that eventually emerged were not likely to do so. It would appear that the role a number of Conservatives apparently wanted the BoR to play, and the proposals likely to emerge from that Commission, were never likely to cohere with each other. It seems unlikely that there was ever any real expectation from the point of view of the Conservative leadership that the proposals would lead to a new BoR that might cure the ills of the HRA. Thus, deployment of the notion of a BoR for the last few years as a panacea for the ills of the HRA has arguably always been an illusion, designed to calm right-wing concerns about non-repeal of the HRA, since repeal was almost certainly impossible in the context of the Coalition. In a much-reported speech Theresa May recently made it clear in relation to the Qatada saga that repeal of the HRA and withdrawal from the ECHR would be on the table if the Conservatives gained a majority in 2015. “When Strasbourg constantly moves the goalposts and prevents the deportation of dangerous men like Abu Qatada, we have to ask ourselves, to what end are we signatories to the Convention?” she said. No mention was made of the Commission’s Report on the BoR: the role Cameron had previously outlined for it appears to have been quietly forgotten. In other words, senior Conservatives seem to be distancing themselves from this Report, unsurprisingly, and the debate appears to be shifting from the ills of the HRA to those of the ECHR at Strasbourg.

This piece has argued that the Commission did fulfil the role of simultaneously preventing conflict between the Coalition partners over the HRA for a time and calming Conservative concerns regarding decisions under the HRA. But in so far as there were real expectations  that a BoR would provide an answer to the ‘problem’ of the HRA, the Report might appear to be disappointment to the Conservative leadership since if its proposals (or ideas it put forward that could warrant consideration) were realised in practice it clearly would not provide the panacea apparently hoped for. But on the other hand, the majority of the Commission did propose a new Bill of Rights, creating a momentum behind the BoR idea which might be advantageous post-2015 to a Conservative government if one is returned and pushes forward with the proposals recently floated by Theresa May regarding the HRA and ECHR. The proposal of a BoR could help to pave the way to repeal of the HRA; it might allay concerns that Britain would become ‘a pariah state’ (Dominic Grieve) if it withdrew from the ECHR, and the BoR itself could act as a Trojan horse in terms of restriction of rights (Michael Fordam QC Report, para 7.32).

 Helen Fenwick is Professor of Law at The University of Durham.

 

Suggested citation: H. Fenwick, ‘The Report of the Bill of Rights Commission: disappointing Conservative expectations or fulfilling them?’   UK Const. L. Blog (21st March 2013) (available at http://ukconstitutionallaw.org)

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by | March 7, 2013 · 9:59 am

Scott Stephenson: The Constitutional Significance of Statutory Repeal: How Far Can Parliament Turn Back the Clock?

stephenson_scottThe current system for human rights protection in the UK is once again under siege. In the last week, statements were made indicating that the Conservative Party’s manifesto for the next election would include major reforms to current arrangements. Chris Grayling, Justice Secretary and Lord Chancellor, declared that a future Conservative Government would repeal the UK Human Rights Act 1998 ‘and start[] again’, suggesting that it would be replaced by alternative legislation. Theresa May, Home Secretary, announced that the manifesto would include a promise to withdraw the UK from the European Convention on Human Rights.

In response, Mark Elliott, Conor Gearty and Adam Wagner wrote that these proposals might not have the effect that many people assume they would. Some of their arguments concern the ineffectiveness of partial reform—removing one element of the scheme for human rights protection but not both. In this post, I focus on their comments that relate to reform at the domestic level—repeal of the UK HRA followed by either no replacement law or a statute that confers markedly reduced powers on courts.

Mark Elliott and Conor Gearty raise two points about repeal of the UK HRA. First, the UK HRA has expanded the protection of rights at common law. As is well known, prior to the UK HRA many rights were recognised at common law and courts developed rules and principles to give effect to them. The principle of legality is one example, which provides that ‘[f]undamental rights cannot be overridden by general or ambiguous words’. These rights, rule and principles would not only subsist after repeal but also operate in an expanded guise. Mark Elliott states that the UK HRA has accelerated the protection of rights at common law by ‘produc[ing] a kind of alchemy, leading judges to discover what was already implicit in the common law while simultaneously augmenting the common law.’ Enactment of the UK HRA has fostered an awareness of rights throughout the British legal system that repeal is unlikely to mollify: ‘To assume … that repealing the HRA or even withdrawing from the ECHR would rid domestic law of the foreign influences that have supposedly tainted it in recent years betrays a naïve misunderstanding of the nature of our common law constitution.’ This awareness will be reflected in the direction and pace of common law development.

Second, repeal of the UK HRA may prompt courts to employ alternative, more controversial, means of protecting rights. British judges have occasionally suggested that a court might decide to disapply or invalidate a statute in exceptional circumstances. In R (Jackson) v Attorney General, Lord Hope stated that the principle of parliamentary sovereignty ‘is no longer, if it ever was, absolute … It is no longer right to say that its freedom to legislate admits of no qualification whatever.’ The UK HRA has, as Mark Elliott and Conor Gearty note, reduced the need for courts to contemplate this issue with respect to human rights. Judges are supplied with a range of remedial powers to address executive and legislative actions that violate rights, obviating the need to turn to the common law to respond such as through a power of invalidation. Furthermore, Conor Gearty observes that ‘some judges might even be emboldened to strike down acts of parliament for breach of human rights, something that the current legislation specifically prohibits and so would be easier with the Human Rights Act off the scene.’ Thus, repeal of the UK HRA might, depending on what replaces it, re-agitate this controversial, untested realm of constitutional law by removing two defusing factors: the provision of statutory remedies and the prohibition on invalidation.

These comments underscore that enactment and repeal are substantively different acts—one is not the mirror image of the other. Putting the doctrine of implied repeal to one side (see Factortame and Thoburn), the UK HRA was deliberately designed not to disturb the power of express repeal. Unlike the human rights instruments of most countries, it is not constitutionally entrenched and is therefore capable of express amendment and repeal through the ordinary law making process. Yet here we see the UK HRA opening a gulf between constitutional form and substance—even if Parliament complies with the constitutional procedure for repeal, the substantive rights are not necessarily withdrawn if courts incorporate them into the common law. Parliament can attempt to abolish common law rights by express enactment, but this may only raise another set of constitutional constraints. Courts may either impede their ouster using the same techniques they have with privative clauses or invoke the second scenario mentioned above (statutory invalidation).

More importantly, the issue raises the question of how courts should interpret a legislative decision to repeal. Not all statutes are alike. Lord Justice Laws has said (in the context of implied repeal) that ‘[w]e should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes.’ The UK HRA is undoubtedly a statute of this stature, even beyond the matter of implied repeal. British courts, for instance, took s 3(1) of the UK HRA to constitute a ‘strong adjuration’ to develop a markedly more expansive principle of legality, thereby augmenting the judiciary’s constitutional role.

By extension, does this mean that not all repeals are alike? If the enactment of a statute can affect the common law, should courts take the repeal of a statute, especially one that is constitutional, as an indication of how they should develop the common law in future cases? Should courts interpret a legislative decision to repeal the UK HRA as a similarly ‘strong adjuration’ to abandon the more expansive principle of legality? After all, courts could, if the UK HRA were repealed, continue to interpret statutes in the same manner and even continue to issue informal declarations of incompatibility. But if enactment of the UK HRA amounted to a legislative decision to transfer greater responsibility to courts for the protection of rights, should its repeal be understood as a reversal of that transfer of responsibility? Should the response of courts differ if repeal is accompanied by a good faith effort on the part of Parliament to increase its capacity and willingness to protect rights, for example, by strengthening the Joint Committee on Human Rights or reforming the House of Lords?

While such questions are speculative at this point in time, they raise weighty issues of constitutional law. The prospect of repeal invites us to consider the interaction between statute and common law, the difference between entrenched and unentrenched human rights instruments, the bi-directionality of law—whether it is possible for the legislature to give with one hand and take away with the other and whether that is the appropriate frame of reference for human rights—and the scope and limits of legislative power to direct and modify the role the judiciary performs in society.

 

Scott Stephenson is a Fox International Fellow at Cambridge University and a J.S.D. Candidate at Yale University

Suggested citation: S. Stephenson  ’The Constitutional Significance of Statutory Repeal: How Far Can Parliament Turn Back the Clock?’ UK Const. L. Blog (7th March 2013) (available at http://ukconstitutionallaw.org)

 

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by | March 4, 2013 · 3:11 pm

Colm O’Cinneide: Human Rights, Devolution and the Constrained Authority of the Westminster Parliament

a_ocinneideThe debate over the place of human rights in UK constitutional law continues to run and run. The Home Secretary, Theresa May MP, has recently criticised the manner in which UK judges are interpreting the right to family life protected by Article 8 of the ECHR. A private members bill tabled by Tory MP Charlie Elphicke, the Human Rights Act 1998 (Repeal and Substitution) Bill, which would de-incorporate Convention rights and replace them with diluted ‘British’ replacements, received its Second Reading on the 1st March 2013. Furthermore, at the time of writing, the Mail on Sunday is quoting Theresa May again to the effect that the next Tory election manifesto will include a commitment to withdrawing from the jurisdiction of the European Court of Human Rights, de-incorporating Convention rights, or some such equivalent measure.

As a consequence, it may be a good time to highlight the fact that changing existing UK human rights law is not an easy task. Even if one leaves to one side the external diplomatic factors that may limit the UK’s freedom of action in this field, there are internal legal and political factors in play which make tampering with the HRA a more problematic project than the media headlines suggest. In particular, complex issues arise with respect to devolution and the various ways in which Convention rights have become embedded in the constitutional framework of the UK.

The HRA itself is a piece of primary legislation which applies to all public authorities throughout the UK and can be amended or repealed by the Westminster Parliament. The UK’s international relationship with the Council of Europe and the European Court of Human Rights also comes squarely within the sphere of reserved powers. However, human rights are not per se a reserved function, and there exists a separate and distinct ‘devolution dimension’ to the UK system of rights protection. The devolved legislatures and executives in Northern Ireland, Scotland and Wales are required to comply with ‘Convention rights’ by virtue of specific provisions set out in the devolution statues (S. 6(2)(c) and s. 24(1)(a) of the Northern Ireland Act 1998; s. 29(2)(d) and s. 57(2) of the Scotland Act 1998; s. 81(1) and s. 94(6)(c) of the Government of Wales Act 2006). They can also take measures to give further effect to the UK’s international human rights obligations when acting within the scope of their powers, including but not confined to those that arise under the ECHR (para. 3(c) of Sch. 2 of the Northern Ireland Act 1998; para. 7(2) of Schedule 5 of the Scotland Act 1998; and in general Schedule 5 of the Government of Wales Act 2006).

The existence of this ‘devolution dimension’ imposes some constraints on the freedom of the Westminster Parliament to reconstruct UK human rights law as it sees fit. For example, any change to the current requirement that the Northern Irish, Scottish and Welsh legislatures must comply with Convention rights would affect the scope of their devolved powers: as a result, under existing constitutional arrangements, it would appear to trigger the Sewel Convention, meaning that Westminster would ‘normally’ have to seek the consent of the devolved legislatures before it could legislate in respect of human rights law as it applies in respect of devolved matters. Furthermore, because the devolved legislatures are able to take steps to extend human rights protection, they have the power to minimise the impact of any reduction of rights protection brought about by Westminster legislation within the sphere of devolved functions.

Thus, for example, if the Westminster Parliament wished to root out the ECHR rights from UK law and replace them with home-grown ‘British’ variants through a new Bill of Rights, it would either have to leave intact the provisions of the devolution legislation that require the Northern Irish, Scottish and Welsh legislatures to comply with Convention rights, or else seek the consent of the three legislatures to the removal from Convention rights from the devolution framework. Furthermore, even if such consent was forthcoming, or the Westminster Parliament chose simply to disregard the Sewel Convention, the devolved legislatures might subsequently be able to restore much of the status quo within the sphere of devolved functions. For example, if Westminster were to repeal the HRA, the Scottish Parliament would appear to have the power to introduce a ‘Scottish HRA’ or an equivalent measure in respect of devolved matters, which could provide an equivalent or even greater level of rights protection within its sphere of application than currently available under the HRA.[1]

Furthermore, the political context is very different in the devolved regions when it comes to human rights. The recent report of the Commission on a Bill of Rights noted that ‘there was little, if any, criticism of the Strasbourg Court, of the European label of the Convention, or of human rights generally in Scotland, Wales or Northern Ireland’ (p. 163), while Philippe Sands and Helena Kennedy in their minority report suggest that ‘existing arrangements under the Human Rights Act and the European Convention on Human Rights are not merely tolerated but strongly supported’ in the devolved regions (p. 266). In addition, as Christine Bell has discussed on this blog, Northern Ireland, Scotland and Wales are in the course of developing their own unique approaches to human rights. This makes it unlikely that the devolved legislatures will be willing to consent to any Westminster legislation which sought to make significant changes to how human rights are protected within the sphere of devolved functions. Indeed, in giving evidence to the Commission on a Bill of Rights, the Scottish Government made it clear that it considered that the Westminster Parliament lacked the legitimacy to determine the scope of human rights protection in Scotland (see p. 166 of the Commission’s report).

Additional issues arise in respect of Northern Ireland. The Belfast Agreement specifically required that the ‘UK government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention’ (Rights, Safeguards and Equality of Opportunity, para. 2.). In addition, as Brice Dickson and Colin Harvey have recently discussed on this blog, a separate Bill of Rights process is underway in Northern Ireland, whose roots also lie in the provisions of the Belfast Agreement. As a result, any attempt by Westminster to alter or amend existing human rights law which applies to Northern Ireland (whether relating to devolved functions or to reserved functions such as national security) is likely to be viewed as an unwanted interference with the fragile constitutional settlement that has been constructed there on the foundations laid down by the Belfast Agreement.

Of course, the Westminster Parliament is free to alter or amend existing UK human rights law as it applies to the sphere of reserved functions, as recognised by Anthony Speaight QC in a thoughtful paper on devolution attached to the final report of the Commission on a Bill of Rights. However, even if Westminster were only to legislate in this field in respect of reserved functions (and exempted Northern Ireland from the scope of application of the proposed new law), devolution would still have the potential to create troubling inconsistencies in UK human rights law.

For example, if Westminster were to de-incorporate Convention rights and replace the HRA with a new ‘British’ Bill of Rights containing home-grown rights standards that applied in the sphere of reserved functions, Convention rights would still be applicable within the sphere of devolved functions. This could generate some complex legal issues where devolved functions in areas such as criminal justice and social welfare overlap with reserved powers such as immigration control. (These complexities would obviously be exacerbated if the entirety of Northern Irish law, including law relating to reserved functions, was exempted from the scope of the new ‘Bill of Rights’.) It would also mean that Convention rights would continue to be applied by UK courts in the context of the devolved regions, ensuring that the Strasbourg jurisprudence would continue to exert some direct influence on the development of UK law.

Alternatively, Westminster could simply choose to ignore the devolved legislatures and push through a new human rights law. However, this could generate a constitutional crisis if one or more of the devolved legislatures and/or governments were to cry foul, and it would in all probability breach the terms of the Sewel Convention. In any case, as already mentioned, the devolved legislatures might be able to limit the effects of such a measure by enacting their own devolved version of the HRA.

In general, the ‘devolution dimension’ cannot be readily ignored or sidelined in the ongoing human rights debate, as the Commission on a Bill of Rights recognised in its final report. The current parameters of the devolution settlement impose substantial legal and political constraints upon the power of the Westminster Parliament to alter existing UK human rights law. This will not come as a surprise to legal experts who are well aware of the limits to parliamentary sovereignty, as analysed by Mark Elliott, Nick Barber and others. However, discussion of these constraints have been largely absent from parliamentary or media debates on the HRA and ECHR. In particular, there has been little recognition that Convention rights have become woven into the fabric of the unwritten UK constitution in multiple different ways, which may prove very difficult to unravel.

Philippe Sands and Helena Kennedy have suggested that certain of their colleagues on the Bill of Rights Commission viewed the constraints imposed by devolution on the freedom of action of the Westminster Parliament as a case of the ‘tail wagging the dog’. There is a danger that a similar attitude may blind politicians in Westminster to the reality that the UK constitutional system is now complex, variegated and pluralist in nature. Tampering with the status of Convention rights in UK law may appease some Europhobic voters, but it risks open up some serious constitutional fractures.

Colm O’Cinneide is a Reader in Law at University College London. 

Suggested citation: C. O’Cinneide ‘Human Rights, Devolution and the Constrained Authority of the Westminster Parliament’ UK Const. L. Blog (4th March 2013) (available at http://ukconstitutionallaw.org)

 

[1] See the research paper written by Anthony Speaight QC and attached to the report of the Commission on a Bill of Rights, ‘Devolution Options’, pp. 243-256, especially at p. 250.

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by | February 27, 2013 · 8:36 pm

Paul Bernal: The Trial of Lady Chatterley’s Online Lover?

paul-bernalBritain has often had a very confused relationship with obscenity and pornography, one that has been played out in the law a few times over the years. We don’t quite know what to think about it, let alone what to do about it. Mervyn Griffith-Jones expressed the kind of attitude that many have in his notorious statement from the Lady Chatterley’s Lover trial in 1960, when he asked if it were the kind of book ‘you would wish your wife or servants to read’.

That kind of attitude seems to be in play again as another old idea about pornography seems to be emerging again: the idea of blocking all ‘pornography’ on the internet, forcing people to ‘opt-in’ to get access to pornography.

Details of how the idea might work have yet to be made clear. The stimulus this time around is that Iceland is actively considering proposals to block access to ‘violent and degrading’ content. Where Iceland leads, the UK, some have said, would like to follow next. But could it? And should it? And would such a ban be legal or proportionate? Perhaps even more pertinently, could the introduction of such a scheme have disturbing side effects?

Article 10 of the ECHR

Article 10 of the European Convention of Human Rights says that:

 “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”

The ‘receive’ part of this right is often neglected – we not only have the right to express ourselves, but to receive information and ideas without interference, subject, of course, to Part 2 of the Article, which says amongst other things

 “…as are prescribed by law and are necessary in a democratic society… …for the protection of health or morals…”

So, if we are to suggest a block on online pornography, it would require it to be prescribed by law, and somehow for the ‘protection of health or morals’, which brings us back to the complex relationship we have with the whole idea of obscenity and pornography – back to Lady Chatterley’s lover.

Prescribed by Law

It is worth remembering that child sexual abuse images (sometimes described as child pornography) are already illegal pretty much everywhere in the world, and indeed on the internet. In the UK they are fairly effectively blocked, through the activities of the Internet Watch Foundation – an organisation that though it has been criticised in a number of ways (see for example this excellent article by my colleague Dr Emily Laidlaw) does seem to keep a tight rein on access to child abuse images.

There is consensus on this issue – and that consensus is reflected in both law and practice, not just in the UK but also in most other parts of the world. The level of success of the legal ban and its enforcement is another matter – but any ‘new’ ban on online pornography would not be about child sexual abuse images, no matter what campaigners say. Rather, it would be about a choice to ‘regulate’ access to content that is considered, in the UK at least, to be legal, at least for adult consumption.

Pornography is legal…

Of course there are some who may want porn not to be legal – but there are many others who would consider that an infringement of their Article 10 rights. One big question is how to define pornography – a question that the law has struggled with over the years. Section 63 of the Criminal Justice and Immigration Act 2008 made an attempt to define ‘extreme pornographic images’ but it has been subject to serious criticism (e.g. by Professor Andrew Murray in the his article for the MLR, available online here). The not guilty verdicts in R v Peacock and R v Simon Walsh in 2012 further muddied the waters – at the very least suggesting that there is no convincing consensus against pornography in our society. Taking it another step further, what about books like Fifty Shades of Grey? Not only is that not censored, but it is for sale in pretty much every bookshop in the country – and boldly and brightly on display, without any kind of an age-barrier. Is it pornographic? If not, how would pornography be defined so as to exclude it?

As well as the difficulties in defining pornography, there is the issue of enforcement. Who is going to trawl through the web looking at websites to try to classify them according to any standards that do get agreed? The IWF largely relies on sites being reported to them – to extend such a system to cover pornography in general would require huge resources, and the establishment of some kind of a censorship body.

Opt-in to porn?

But those proposing such a system might say, we’re not banning anything, or making anything illegal – people could just ‘opt-in’ to pornography, exercising their choice. In the digital world it isn’t as simple as that. First of all, there’s the question of whether it would work at all – and many commentators (for example Dr Brooke Magnanti in the Telegraph) have significant doubts. Blocking anything in the internet is much more easily said than done.

Secondly, bringing in an ‘opt-in’ system would have further implications. Signing yourself up as someone who opts-in to porn will put you on a database, a database of people who want access to pornography. What will that database be used for? It is a relatively simple slippery slope for a database of those who want access to adult content to become a database of people who are worth further investigation for other reasons.

It would be a database that would be of great vulnerability – the possibilities of using such information against people on it are significant. How many people would want their families, their employers or their friends to know that they had ‘opted in’? Effectively, forcing a sign-up could have a direct chilling effect: many people may not want to sign up for fear of the implications of that sign-up.

Censorship?

That, indeed, may well be the prime motivation behind some of these ideas: simply to discourage people from viewing pornography. That might be a laudable aim, but it is a bold claim to suggest that all pornography is ‘bad’, and some claim otherwise: Leslie Green in particular suggests that for the gay community pornography can be empowering and expressive rather than exploitative and oppressive. If it were to be accepted as a claim, it would need good, strong, empirical evidence to back it up. Is there such evidence? Even if there is, is such an aim one that either could or should be achieved through the law, and, ultimately, through censorship? That, ultimately, is what this kind of a system would result in.

It may in some ways be a laudable form of censorship, with laudable aims, at least insofar as some of the more extreme pornography is concerned – but it would be censorship nonetheless. What is more, it would be censorship of content that the law currently views as legal. If a porn-block is desirable, the first stage should surely be to designate the content as illegal – and not just on the internet. As mentioned above, the law has had great difficulty with that – R v Peacock and R v Walsh being recent examples – and it is hard to imagine that it wouldn’t have similar difficulties in the future.

There are echoes of the paternalism of the past in the current proposals, and, one suspects, some similar motivations. To update Mervyn Griffith-Jones’s notorious statement referred to above, there are some who might wish to ask:

“Is this the sort of website you would wish your husband or son to view?”

The answer to this question may very well be no – but it is worth remembering that Penguin won the Lady Chatterley’s Lover trial. Would the trial of Lady Chatterley’s Online Lover be any different?

Dr. Paul Bernal is a lecturer in the UEA Law School and a member of media@UEA. He blogs at: http://paulbernal.wordpress.com/ and tweets as @paulbernalUK.

Suggested citation: P. Bernal, ‘The Trial of Lady Chatterley’s Online Lover?’ UK Const. L. Blog (27th February 2013) (available at http://ukconstitutionallaw.org).

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by | February 26, 2013 · 9:11 am

David Mead: “Don’t Think Of An Elephant”: How Conceptualising Is Able To Skew The Outcome In Human Rights Cases

davidmeadIn his 2004 book “Don’t think of an elephant” cognitive linguist George Lakoff offered his view on the recent US political landscape. I’m very grateful that Daithí Mac Síthigh made me aware of it. Specifically, Lakoff tried to set out what he thought accounted for the success of the Republican right in winning the battle for the public’s hearts and minds during the 1990s. He analysed the debates surrounding several contentious issues, and the manner in which those debates, literally, were constructed. For example, on the issue of tax, instead of campaigning for “tax cuts” for the rich, Republicans framed the debate as one in which they were arguing for tax relief. As Lakoff wrote, “When the word tax is added to relief, the result is a metaphor: taxation is an affliction. And the person who takes it away is a hero, and anyone who tries to stop him is a bad guy. This is a frame. It is made up of ideas, like affliction and hero. And if people try to stop the hero, those people are villains for trying to prevent relief.”

This short post summarises some of my own “work in progress” which applies Lakoff’s idea of framing, or “conceptualising”, to the law specifically when human rights issues come to the fore. My primary aim in doing so is to seek views on whether it offers anything new and coherent. I vacillate between thinking that the argument it presents seems rather like the emperor’s new clothes and thinking there might somewhere be a relatively rich seam to be mined.

Not being much of a legal theorist or legal reasoner, it has dawned on me several times that I may be barking not up the wrong tree, but up a non-existent tree. That said, the decision – by either counsel or judge – about how to “conceptualise” the case in hand, or more precisely, the facts of the case in hand, doesn’t seem to be given much attention in legal literature. Yet, the way in which any legal scenario is conceptualised, that is to which area of law the factual matrix is best or most appropriately linked, can go a long way to determining the outcome or ultimate disposition, exactly as it can with framing contentious political questions. This happens in most cases at an almost subliminal level and for the most part is unlikely to be disputed, and unlikely to affect the outcome. That’s not always the case. For a plaintiff wrongly to decide – or to be wrongly advised – that a case raises a public law issue, rather than being simply a private law dispute – public sector employment contracts for example – can have serious consequences, as it did in, say, Evans v University of Cambridge.

In the human rights field, how the matter has been framed or conceptualised has the potential to affect how the case is resolved, if not the actual outcome in every instance. The remainder of this blog outlines some of the ways in which this might occur. The fuller article will plot a formal typography. Issues and concerns surrounding the conceptualisation of a case is neither new nor unique to human rights cases – or even public law. This much, I hope, is obvious. We might think of arguments over administrative vs. judicial hearings, in the days of Nakkuda Ali and Ridge v Baldwin, or categorising civil wrongs as actions on the case or damages as pure economic loss. The point is more that it has the potential to have greater effect, simply because of the issues in play and the public nature of the rights at stake.

First and most obviously, a case may not be framed as raising a rights-issue at all. The pre-HRA case of Sultan Khan in 1996 exemplifies this well. There, the House of Lords did not see the placing of a bug on a suspect drug dealer’s house as being about privacy at all. It was, in their eyes, simply a case about the admissibility of evidence. Secondly, there are cases where the courts do not see the facts as engaging a right at all. A good example would be the employment law case Pay where the EAT did not consider that being dismissed by the probation service for engaging in sado-masochistic sexual activity outside of and unconnected to work, raised Article 8 issues at all. Another would be Gillan. There, a half-hour stop and search under s.44 of the Terrorism Act 2000 was held by the House of Lords not to be a deprivation of liberty (within Article 5) and they doubted if it engaged the right of privacy in Article 8. In both, the European Court held (Gillan v UK) or in Pay v UK assumed otherwise – though Mr Pay lost on the facts. It’s crucial, of course, that the engagement issue is “correctly” disposed of, if for no other reason than that – in the case of qualified rights – the burden of showing the proportionality of the measure then falls on the state. Whether the facts are framed as to prefer one right over another is the third way in which conceptualisation rears its head. Was Mendoza really a case about equality and non-discrimination – or is it possible to see it as raising questions about the allocation and regulation of that scarce socio-economic resource, housing supply – albeit in the private market? The extent to which a court is prepared to defer to the primary decision-maker may depend on such categorisations. Last, whether we – and judges – view a case as being about private rights or about public rights, and values, is important too – and will clearly affect the outcome. Of course, the Occupy cases like Samede are about how private landowners can use their own land – but are they not also about how groups of citizens, perhaps disenfranchised, are able to utilise their public rights of free speech and protest? In an area I have written about recently – police searches by consent ([2012] Crim LR 97) – seeing the only issue as one of giving the police licence to do that which would otherwise be trespass and not as raising public law issues of accountability, transparency and power does not fully convey the position when the police come knocking.

Framing is not new – nor confined to law. We see it every day in newspapers – fitting an item into our pre-existing world view or sensitivities, or even expectations. Was Hilary Mantel’s LRB piece, really an attack on royalty – and on Kate Middleton – or was it a comment on the workings of the press, something concealed in the press reports themselves? The press of course “frame” the human rights debate too – by selective inclusion and language, and even perhaps deliberate conflation of that two-headed European beast, the EU and the ECHR. Framing and conceptualisation in the law though is qualitatively different. By its nature, litigation has the potential to juridify social relations and scenarios – they exist no longer on the street or at work but are legally enshrined and given legal form  – and not, of course, simply for that one case. Deciding, to take another example, whether a claim for misusing private information is a bastardised equitable claim or a new type of tort will dictate whether damages are can be refused for future claimants on a discretionary basis. It’s important we work at seeing the law through the right lenses.

David Mead is Professor of Public Law & UK Human Rights at the University of Essex

Suggested citation: D. Mead, ‘”Don’t Think Of An Elephant”: How Conceptualising Is Able To Skew The Outcome In Human Rights Cases’ UK Const. L. Blog (26th February 2013)(available at http://ukconstitutionallaw.org).

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by | February 14, 2013 · 8:49 am

David Erdos: Mustn’t Ask, Mustn’t Tell: Could New EU Data Laws Ban Historical and Legal Research?

david.erdosEven with the advent of Web 2.0, data protection law is still often seen as technical and only narrowly applicable.  Technical abstruseness aside (and data protection’s reputation here is certainly deserved!), this understanding couldn’t be more wrong.  The existing European data protection framework actually has a breath-taking scope.  It applies to anything done electronically with any information about an identified or identifiable person (possibly even the dead).  According to the EU, even innocuous details already in the public domain are protected (perhaps even the title of an author’s book).  Moreover, if the information reveals in any way, for example, race/ethnic origin, political opinions, religious belief, trade union membership, health or criminality, then it is classed as “sensitive” information and subject to even tighter regulation.  A number of European courts have ruled that all colour images are covered by this as they display racial information.  The European data protection framework (Directive 95/46/EC) is not only broad but often onerous.  Barring a specific exception (including a liberal one (Art. 9) which can be invoked for journalism, literature and the arts), there is a presumption that individuals will be informed about the processing of data about them (Arts. 10-11) and given a right to object (Art. 14), that the processing of “sensitive” personal information will be banned (Art. 8.1) and that no personal information will be transferred outside the European Economic Area without “adequate protection” (Art. 25.1).

So the popular perception of data protection is woefully inaccurate – which leads to a radical underestimation of the threat this regime poses to the enjoyment of other fundamental rights and pursuit of legitimate activities.  Nowhere is this more the case than in relation to social and humanities research.  Since the advent of the EU data protection framework, researchers have witnessed dramatic restrictions on their freedom to use “sensitive” data or to resort to covert methodologies.  Coupled with the growth of sometimes intrusive “ethical” review policies, the barriers and burdens placed in the way even of ordinary, innocuous, yet socially beneficial research and on researchers have become considerable.

It might have been hoped that the proposed EU Data Protection Regulation would provide an opportunity to reverse this.   But if the European Parliament’s just published draft report and amendments are anything to go by, the converse is true.  Prepared by Jan Albrecht MEP, the Rapporteur of the Civil Liberties, Justice and Home Affairs Committee (the lead Committee for considering the Regulation), these stringent proposals would effectively outlaw almost all research in law and in contemporary history as well as a great deal of work in sociology and political science.  Now, any processing for historical, statistical or scientific research purposes would be subject to the following:

  • A complete ban on publishing even the most innocuous personal data in identified form unless the individual in question either has themselves put it into the public domain or has freely given, specific, informed and rescindable consent (Amendment 339, p. 201).  This would deny a historical researcher the right to publish information from a newspaper article accurately reporting the public activities of a public official (e.g. Tony Blair’s involvement in the decision to go to war in Iraq).  It would also prohibit the citation and publication of analyses of already published court judgments since these are full of identifying details which the justice system rather than the individuals concerned have put into the public domain.
  • If the details in question reveal any “special” categories of information (see above), then the restrictions would be even greater.  In the absence of freely given, specific, informed and rescindable consent, all such research would be banned unless Member States, on a purely optionally basis, allow their Data Protection Authority to issue permits for this.  These could however only be granted if the information “be anonymized, or if that is not possible for the research purposes, pseudonymised under the highest technical standards, and all necessary measures…taken to prevent re-identification of the data subjects”.  The research must also serve “exceptionally high public interests” and be something that “cannot possibly be carried out otherwise” (Amendment 337, p. 200).  Not even information previously published by the individual in question would be exempt.   Thus, for example, a historian would have no right to report that Emma Nicholson, now a Liberal Democrat Peer, used to be Conservative MP despite this being public knowledge freely available on Wikipedia. (According to the  Information Commissioner’s Office the political affiliation of an MP is “sensitive” personal data (p. 8)).
  • We are also told that in all cases “data enabling the attribution of information to an identified or identifiable data subject” must be “kept separately from the other information” (Amendment 335, p. 199).  This would prevent a researcher from saving a court judgment or a newspaper report on a laptop without having first replaced all personal identifiers (such as “David Cameron” or “Lord Hutton”) with a pseudonymised (as above) code, the key to which would then have to be stored elsewhere.
  • Finally, the clause allowing the European Commission to propose delegated legislation to allow for covert research has simply been deleted (Amendment 341, p. 202).  But, subject to suitable safeguards, such research has often been essential in bringing to light important facts including illegal police practices and discriminatory attitudes on the grounds of sex, ethnicity or race.  People are obviously not going to be willing to give consent to their wrongdoing being researched.

Albrecht is candid about the restrictions on research freedom which are being proposed.  Thus we are told baldy that “[r]esearch purposes should not override the interests of the data subject in not having his or her personal data published” (at p. 201).  If the word “journalistic” were substituted for “research”, then it would be obvious to everyone, including of course the Press, just how onerous this censorship is. Ironically, alongside these harsh restrictions on research, Albrecht proposes broadening the protections set out in Article 80 as regards journalism, literature and arts so as to protect freedom of expression per se (Amendment, 324, p. 193).  This is to ensure that “freedom of expression is protected in general, not just for journalists, artists or writers” (p. 52).

Freedom of expression is defined by reference to the EU Charter which includes freedom to “receive and impart information and ideas without interference” (Art. 11), a right similarly protected in Art. 10 of the European Convention on Human Rights.  In creating and disseminating new knowledge, social and humanities research intrinsically instantiates such freedom of expression.  Moreover, the special concern of research to investigate genuinely important issues whilst upholding the qualities of rigour, culmination and precision ensures that social and humanities research will usually constitute ‘high-value’ publicly interested speech which the European Court of Human Rights has correctly stated should generally be free from legal restriction. As Brian Harrison has also correctly argued “there is no distinction in principle between the journalist and the historian:  the historians simply have more time for research and reflection”.  However, the one type of actor whose freedom of expression is not protected by this proposed revision to Article 80 is researchers (historical or otherwise).  This is because, whilst Article 80 does allow for (balanced) derogations from most of the Regulation, Article 83’s stipulations on historical, statistical and scientific research are excluded from this.  Freedom of expression is turned “on its head”!

It is vital that the draft Data Protection Regulation be amended.  We need to ensure that social and humanities research is unequivocally included within Article 80’s freedom of expression protections.  This should also prompt a wider rethink of the over-regulation of research compared with other, often less socially valuable, activities.  The proposals are still being considered by both the European Parliament and the Council of Ministers.  It is not too late to press for the necessary changes.  All who care about the future vitality of academic inquiry need to wake up to the realities of Data Protection.  Universities and other research organizations need to be forthright and assertive in opposing these unjustified and unworkable proposals.  Everyone acknowledges that, in some contexts, genuinely sensitive personal data needs protection.  But when this balloons into wide, and wild, overreaction we find ourselves able to know less and less about the societies we live in – including, paradoxically, about the nature of privacy and about the effects of Data Protection regulation itself.

A version of this article was originally published in Times Higher Education (“Mustn’t ask, mustn’t tell”, 14 February 2013, p. 30).

David Erdos is principal investigator of the Data Protection and the Open Society project and a research fellow at the Centre for Socio-Legal Studies and Balliol College, University of Oxford.

Suggested citation: D. Erdos, ‘Mustn’t Ask, Mustn’t Tell:  Could New EU Data Laws Ban Historical and Legal Research?’ UK Const. L. Blog (14th February 2013) (available at http://ukconstitutionallaw.org)

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