Tag Archives: Austin v UK

David Mead: Be careful what you wish for….it may never happen: the curious incident of peaceful protest under the coalition

If a week’s a long time in politics, then two years is surely a couple of lifetimes? Hidden away – it now seems – in the coalition’s Programme for Government was the pledge to “restore rights to non-violent protest”. Even in the civil liberties section, it was always the poor relation to the big hitters that were thought more in keeping with the zeitgeist: regulating CCTV, taking action on DNA databases and misuse of anti-terrorism legislation, scrapping ID cards and of course establishing a Commission on a British Bill of Rights.  The antics of the red tops, currently being played out at Leveson, has shifted the focus onto press behaviour but the past few years has also – perhaps perversely in that light – been a real worry for press freedom. The concerted campaign on libel reform has achieved a meeting of political minds – and investment of political capital – in the changes proposed in the Queen’s Speech a week or two ago, with plans that “serious harm” be shown, alongside a statutory public interest defence.

It is something of a puzzle that free speech of a different hue, the right to dissent and to protest, is not simply under the radar but has almost disappeared from the political map. It is exactly two years since the coalition agreement was fleshed out: where are the consultations, the public statements of support, the draft bills and other indicators of government interest? The single, positive change is that restrictions on demonstrations around Westminster have been removed – though protest camps in Parliament Square remain unlawful. If the two negotiating teams thought that was the extent of the problem, they were seriously misinformed. Not only was that change not in the wide-ranging Protection of Freedoms Act – its natural home – but in the Police Reform and Social Responsibility Act 2011 and indeed didn’t even feature in the original Bill but was inserted in Committee in early 2011. That was about the same time as the only public acknowledgement of the pledge in two years. In his policy announcement on civil liberties on 7th January 2011, Nick Clegg simply asserted that the right would be restored – without any detail analysis or explanation of what that might mean or what would be needed. The sidelining of protest couldn’t have been clearer.

So all we have to show is a solitary piece of legislative tinkering as an afterthought, one bland unsubstantiated statement and one consultation, late in 2011, angled (still) towards promoting public order and police powers. Surely, protest is simply free speech writ large – without any of the vestiges of commercialism that flavour even the most upstanding newspaper reports and investigations? No newspaper exists simply to expose wrongdoing – though of course the threat of libel hangs over anyone who publishes, whether mass media or do-gooding pamphleteer. Writ large too because protest and dissent also (perhaps by definition) go directly to political participation – presenting, questioning or confirming democratic alternatives – even if it is not avowedly partisan. Can we always say the same of alleged libels? Yet that singular aspect of free speech is now to benefit from special legislative intervention. If free speech is now recognised politically as A Good Thing, why isn’t the same respect accorded when we try to make our views known by protesting?

Libel law of course has, in footballing terms, home advantage: it’s always easier to mount a media campaign when the media is on your side even more so when what is being argued for are better terms and conditions for the media. Any editor would think: “what’s not to like?” It also chimes more easily perhaps with libertarian hearts and minds. Perhaps the perception is that protest is hale and hearty: after all if 30,000 police officers can march across London, where’s the problem? None of these though really account for the paucity of political engagement with the question of how we regulate the expression of dissent. A likelier explanation is the nature of the coalition and the turmoil at its heart.  The pledge really stemmed from the Liberal Democrats. Their manifesto committed them to restore the right to protest by reforming the Public Order Act to safeguard non-violent protest even if it offends and to restrict the scope of injunctions issued by vested interests. The Tory’s manifesto was silent – on that particular civil liberties issue at least. Unsurprising really, as it was Tory peers in the wash-up who objected to the Constitutional Reform and Governance Act 2010 including provisions overturning the ban on demonstrations near Westminster. Such inertia yet, to take one simple example, the Department for Business, Innovation and Skills was recently able to find the time to consult on removing the dishonesty from the cartel offence in the Enterprise Act 2002. A matter of priorities, and the all-pervasive financial & economic agenda?

It’s not simply that peaceful protest is the human right that dare not speak its name – it’s been in retreat. Breach of the peace remains the catch-all for dealing with any sort of likely disruption, as well as acting as the underpinning authority for kettling more generally. Cases like Austin, at Strasbourg, and here Moos and McClure (where the Court of Appeal overturned the only successful kettling case to date) do not paint a happy picture. The thorny issue of finding physical space to hold a protest – with the commercialisation of formerly public land – is in turn problematic, made no better by holding that distance and the cost of daily travel cannot justify the establishment of a semi-permanent protest site. That decision, in Gallastegui last month, joins the line of unsuccessful occupation cases over the past couple of years, like Hall (Democracy Village) and Samede (Occupy LSX). The point here is not that the occupiers should have won but that an engaged polity needs to find space to discuss the extent to which we should allow such forms of protest. To this catalogue we might add the admittedly contentious decision in Abdul v DPP, the conviction under s.5 of the Public Order Act 1986 of those protesting in fairly vituperative terms (“Baby killers” “Rapists” “Murderers”) about the war in Iraq at a homecoming for British troops and the continued place in the armoury of aggravated trespass. The case against those 145 members of UK Uncut who “occupied” Fortnum and Masons in March 2011 would be a prime example, as would the sit-in protests at the Ahava store in Covent Garden, based on its connections to the Occupied Palestinian Territory on the West Bank, in Nero v DPP. All of this against a backdrop of continuing disquiet at aspects of policing practice: the revelations about undercover surveillance and embedding officers in environmental groups; Kent police paying out £5.3m to all those it subjected to blanket (and so arbitrary) stop and search at the Kingsnorth Climate Camp; and allegations of excessive force as police kettled student protesters on Westminster Bridge in December 2010.

In short, it is hard to think of anything particularly positive from the last few years. Following last year’s consultation (and indeed a recommendation of the Joint Committee on Human Rights in 2009), reform of s.5 of the Public Order Act 1986 is back on the political agenda courtesy of Peter Tatchell last week. Even if there is movement there, restoring the right to peaceful protest will not be achieved simply by tinkering with demonstrations around Westminster and making it no longer an offence to utter “insulting” words. One of the problems – as I argue in an article to be published in Public Law next year – is the increasing use of private law to control and contain protesters. This subverts the more transparent and accountable public law framework: arrests for crimes and conditions imposed on marches and assemblies. Not only are protesters subject to the grace and favour of private landowners – which explains why Occupy LSX were outside St Pauls not the Stock Exchange, over which Paternoster Square Holdings had obtained an injunction – creating what we might call a “differentiated reality” of protest, but we are witnessing an increasing reliance on anti-harassment and libel injunctions (or SLAPPs, a transatlantic import) by target companies. This is what lies behind the second limb of the Lib Dem manifesto commitment.

So, what should the immediate future hold? Two years ago, just before the general election, I called for a Royal Commission into Peaceful Protest. The need appears to have become no less pressing in the intervening period. We need to turn the focus away from the UK’s historic attachment to order maintenance; we have several Public Order Acts but no Peaceful Protest Act. First we need to eradicate the concept of “unlawful” assembly from both law and policing practice. The right to protest peacefully is an individual right not something defined out, and so lost, simply because others are violent or intend serious harm. Seeing protesters as an amorphous mob lies behind the legitimising of kettling, treating everyone as a potential threat on the basis of suspicions of perhaps a handful. Any Peaceful Protest Act would provide criteria to assess whether or not a protester is “peaceful”; its antonym is violence, not disruption or inconvenience. We should – and indeed must – accept as legitimate forms of protest that disrupt and obstruct us, as part and parcel of a vital democracy. This echoes Michael Sandel’s concerns about markets: that they reduce our shared experiences and so diminish democratic life. It is what David Feldman calls “coerced toleration” or as Lord Scott out it in Pro Life: we simply do not have the right to be offended by certain forms of speech. For too long protest NIMBYism has dominated; without respecting the views of others, why should I be able to demand my own be heard? Worse, we think nothing of the inconvenience caused by all-night queues outside the Apple store or the disruption at 5:00 on Saturdays as football crowds disperse yet we clamour for a clamp down when a march causes temporary street closures. The wider public social utility of my right to dissent needs re-affirmation. Furthermore, we should be prepared to accept the political legitimacy of certain forms of non-violent direct action. Where it is obstructive or disruptive but is so only temporarily, or incidentally or symbolically, a pressing case is needed to justify restricting it, the more so perhaps for views which run counter to the mainstream and so will never otherwise reach the political agenda. There is a world of difference between a few protesters linking arms outside an arms factory for five minutes to prevent workers entering and a group which tries to dismantle an entire fighter plane. That would allow us properly to distinguish intentional intimidation or obstruction aimed at stopping an activity itself done as a supplanting of the democratic process by effecting change directly.

Other key elements in any new legislative framework would be that a protest impact statement is required for all future proposals. This would explain why a new, bespoke offence is needed to capture whatever discrete anti-social activity is being carried out. History shows that knee-jerk laws in this area are prone to misuse or, perhaps as worse, massive under-use. The need for new laws may not be down to any substantive gaps but to evidential difficulties under existing laws, which a new offence simply would not solve. A Peaceful Protest Act would provide for two more pressing reforms: codifying and constraining the common law power to take preventive action on grounds of breach of the peace, containing containment so to speak, and creating a limited right of access to quasi-public land for the purposes of protest – as Tom Watson unsuccessfully endeavoured to do in the course of the Protection of Freedoms Bill becoming law last year. Last, it would respond better to the need to balance the legitimate rights of businesses to be free from activities designed directly to obstruct its trade and the rights we all have to persuade employees, suppliers and customers not to buy from, sell to or work for that company. There have been enough instances where injunctions have been granted to prevent free speech and dissent: disconcerting and ill-judged perhaps, hostile and unwelcome certainly but peaceful protest nonetheless.

Maybe it’s not the broken society that the coalition needs to worry about, but broken promises?

David Mead is a Senior Lecturer in Law at the UEA Law School. 

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Helen Fenwick: An appeasement approach in the European Court of Human Rights?

This piece asks whether, in the light of UK proposals for the reform of the ECtHR, and in the wake of the outcry in the UK over the Qatada decision (Othman v UK), the Court is taking an approach that looks like one of appeasement of certain signatory states.  Two very recent decisions will be looked at which, it will be argued, contain appeasement elements. Each can be compared with a previous counter-part decision against the same member state which adopts a more activist approach; and each is not immediately obviously reconciliable with the previous decision. Is the Court revisiting the ‘true’ scope of the ECHR in a more deferential spirit?

British proposals for reform of the Strasbourg Court

This is not the place to discuss the proposals for reform of the ECtHR in detail and most readers will be aware of their general drift in any event. The idea of ‘greater subsidiarity’ has been raised at various levels, and accorded various meanings in advance of the imminent High Level Conference at Brighton on the future of the Court. The reform process began in 2010 with the Interlaken and Izmir declarations. Members of the Bill of Rights Commission, which has a second brief regarding its advisory role on reform of the Strasbourg court, linked to British chairmanship of the Council of Europe, take the view that both declarations reflect a desire for greater subsidiarity. Anthony Speaight, Commission member, has indicated that it will look into the question of creating an enhanced margin of appreciation, allowing for greater subsidiarity, on the basis that that would be in accordance with the Interlaken and Izmir Declarations since “one finds in each of them a statement of wish and aspiration for greater subsidiarity”. When the Commission provided its interim advice to Ministers on Strasbourg reform in 2011, it accompanied it by a letter which raised the perception of some, either expressed to the Commission or of some Commission members, that the Court is at times “too interventionist in matters that are more appropriate for national legislatures or courts to decide”. Areas that the Commission has stated it is inquiring into are those of including a democratic override in the ECHR along the lines of s33 of the Canadian Charter and that of introducing ‘subsidiarity reviews’ by analogy with the EU treaty, on the basis of according a power to the Committee of Ministers to resolve that a judgment should not be enforced if it infringed the principle of subsidiarity. The Commission Chair said in the letter that that “would arguably reflect the Izmir Declaration”.

The government’s plans for reform of the Strasbourg Court have been extensively trailed in the run up to the Brighton Conference in April 2012. It was stated in 2011 (according to Parliamentary written answers and statements, 18th March 2011) that the government would use the Chairmanship to press for placing the primary responsibility for protecting the ECHR rights on states, rather than the Court. Intervening in Scoppola v Italy No. 3, Grieve made a further statement indicative of this plan for reform of the Court. He said that a number of states have restrictions or complete prohibitions on prisoners voting, and “this is, and should be, a political question – by which I mean a question for democratically elected representatives to resolve, against the background of [their state’s] circumstances and political culture”. He considered that acknowledging the doctrine of the margin of appreciation in that way would result in the EtCHR intervening only when “the decision of the national authorities is manifestly without reasonable foundation”.

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 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 2012 Qatada case (above), as illustrating the need for reform, he said “we have gone through all reasonable national processes…including painstaking international agreements about how they should be treated …and scrutiny by our own courts…and yet we are still unable to deport [or detain] them”. The members of the assembly voted unanimously to agree that the court should be “subsidiary” to national authorities – governments, courts and parliaments – in guaranteeing human rights. Clearly, the effect of that decision will depend on the precise reforms agreed upon at Brighton. A draft declaration for that conference was ‘leaked’ on 23 Feb 2012, and published in various forums. It focuses on the grave problem of the back-log of cases facing the Court and makes proposals intended to create greater acceptance of the ECHR at national level, to allow the Court to focus on the more significant claims, and to avoid it being faced by persistent claims that should be dealt with at national level. But among laudable proposals for dealing with the back-log, it includes the following – at para 19(a): “The conference therefore welcomes the development of the Court within its case-law of principles such as subsidiarity and the margin of appreciation doctrine…and encourages the Court to give great prominence to these principles in its judgements; (b) Concludes that the transparency and accessibility of the principles of the margin of appreciation and subsidiarity should be enhanced by their express inclusion in the Convention, and invites the Committee of Ministers to adopt the necessary amending instrument within one year”. Para 23(b) on options for amending the admissibility criteria proposes that an application should be declared inadmissible if it is the same in substance as a matter that has already been determined by the national courts unless the Court considers that the national court “clearly erred in its application or interpretation of the Convention rights or the application clearly raises a serious question concerning the application and interpretation of the Convention”.

Austin v UK and Von Hannover v Germany (No 2)

It is in this context that the cases of Austin v UK and Von Hannover (No 2) are considered, in order to argue that certain of the proposals currently being put forward are echoed in dominant themes within the judgments.

The decision in the House of Lords in Austin v The Commissioner of the Police of the Metropolis, finding that ‘kettling’ peaceful protesters and bystanders for 7 hours did not create a deprivation of liberty, has been heavily criticised; it was expected that the ECtHR would take a different stance. In the House of Lords, the key question was whether such entrapment of persons via ‘kettling’ amounted to a deprivation of liberty under Article 5(1). Lord Hope considered that in making a determination as to the ambit of Article 5(1), the purpose of the interference with liberty could be viewed as relevant; if so, he found that it must be to enable a balance to be struck between what the restriction sought to achieve and the interests of the individual (at para. 27). Having found that purpose was relevant to the ambit given to Article 5(1), Lord Hope found that the purpose must take account of the rights of the individual as well as the interests of the community, and therefore any steps taken must be resorted to in good faith, and must be proportionate to the situation which made the measures necessary. If these requirements were met, however, he concluded that it would be proper to find that measures of crowd control that are undertaken in the interests of the community will not infringe the Article 5 rights of individual members of the crowd whose freedom of movement is restricted by them if the measures are proportionate to the aim pursued (at para. 34).

When this decision was challenged at Strasbourg (Austin v UK (2012)), the Grand Chamber took a stance towards the deprivation of liberty question which was very similar to that taken by the House of Lords, finding: “the context in which action is taken is an important factor to be taken into account, since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good….The Court does not consider that such commonly occurring restrictions on movement, so long as they are rendered unavoidable as a result of circumstances beyond the control of the authorities and are necessary to avert a real risk of serious injury or damage, and are kept to the minimum required for that purpose, can properly be described as “deprivations of liberty” within the meaning of Article 5(1)” (at para. 59).

Applying these findings, and affirming that “subsidiarity is at the very basis of the Convention, stemming as it does from a joint reading of Articles 1 and 19” (at para. 61), the Court went on to find that in accordance with the Engel (Engel v Netherlands (1976)) criteria (for determining when a deprivation of liberty occurs), the coercive nature of the containment within the cordon, its duration, and its effect on the applicants, in terms of physical discomfort and inability to leave Oxford Circus, pointed towards a deprivation of liberty. However, the Court found that, relying on the context of imposition of the ‘kettle’, the purpose of its imposition must be taken into account – to “isolate and contain a large crowd, in volatile and dangerous conditions”. The Court found no reason to depart from the findings of fact of the first instance judge as to the dangerousness of the situation. Although the Court did not refer expressly to proportionality, it clearly adverted to that concept in finding that the measure taken appeared to be the “least intrusive and most effective means to be applied” (at para. 66).  On that basis no deprivation of liberty was found, meaning that it was not necessary to consider the exceptions to Article 5. Thus, in essentials, the Grand Chamber’s judgment did not differ from that of the House of Lords.

A strong joint dissenting opinion trenchantly criticised the findings of the majority on the basis that its position could be interpreted as “implying that if it is necessary to impose a coercive and restrictive measure for a legitimate public-interest purpose, the measure does not amount to a deprivation of liberty. This is a new proposition which is eminently questionable and objectionable…”. It was found to be objectionable since if in the public order context liberty-depriving measures were deemed to lie outside Article 5 if claimed to be necessary for any legitimate/public-interest purpose, “States would be able to “circumvent the guarantees laid down in Article 5 and detain people for a whole range of reasons going beyond the provisions of Article 5(1) (a) to (f), as long as they could show that the measure was necessary”. They pointed out that in A and Others v the United Kingdom (2009), the Court refused to accept the Government’s argument that Article 5(1) allows a balance to be struck between the individual’s right to liberty and the State’s interest in protecting its population from terrorist threat, finding: “If detention does not fit within the confines of the paragraphs [Art 5(1) (a)-(f)] as interpreted by the Court, it cannot be made to fit by an appeal to the need to balance the interests of the State against those of the detainee” (at para. 171).

The decision in Austin can indeed be critiqued, as in the joint dissenting opinion, on the basis that it in effect creates a new, very broad, exception to Article 5, while purporting to avoid doing so by relating the public interest argument to the issue of ambit. Given that the Court relied on “context” to determine the application of Article 5, and given the need to interpret the ECHR as a whole, the fact that the protesters were seeking to exercise Art 10 and 11 rights, could have been viewed as creating differentiation between the crowd control situations mentioned by the court and the context of protest: the Grand Chamber considered the public order context but not – as a determining factor – the public protest one. A new amendment to Article 5 may be needed to clarify this position, but in the meantime the creation in effect of an exception to Article 5 on broad public interest grounds, represents a worrying trend.

The Grand Chamber reiterated, on the basis of a principle of subsidiarity, that it should only interfere in a domestic decision as to facts on very cogent grounds. But it is suggested that impliedly it went further: it applied the principle of subsidiarity not to the findings of fact only, but to the interpretation of Art 5(1). The House of Lords had found that public interest considerations were relevant to ambit, subject to a test of proportionality. The Grand Chamber, as the joint dissenting opinion pointed out, accepted that analysis in effect – though without overtly referring to proportionality – despite the fact that it ran counter to the findings in A v UK on the interpretation of Art 5(1). The result was consistent with the proposition that the Grand Chamber came very close to accepting that it would require very compelling reasons to depart from the decision of a superior national court that had applied the Convention, taking a particular view of its interpretation, to a set of facts – even where that court could not point to ECHR jurisprudence bearing closely on the matter before it. That stance would be in accordance with both para 19(b) and 23(b) of the leaked Brighton declaration. Obviously 23(b) refers to admissibility, not substance, but para 23(b) in effect demands subsidiarity not merely in relation to fact-finding, but also in relation to interpretation of the Convention.

There is a wider message to be drawn from this narrow approach to the right to liberty which, it is argued, was lost in the pursuit of subsidiarity. In an age of Anti-Social Behaviour Orders,  Serious Crime Prevention Orders, and of a range of state powers that interfere with liberty in the contexts of both counterterrorism[1] and public protest, the question whether a “deprivation of liberty” refers to literal physical restraint as in prison, or to something much more amorphous, is of especial importance, and resonates far beyond the public protest context. The varied ways of interfering with liberty now available to the state, render the traditional idea of focusing on physical restraint outdated (this point is touched on in H Fenwick and G Phillipson McGill Law Journal 56(4): 864-918 at 889-890). Had the police arrested the 4 applicants in Austin and detained them for 7 hours, rather than kettling them, there would have been no question as to whether Article 5 applied – the only issue would have been as to the applicability of the exception under Art 5(1)(c). Thus the Court has impliedly accepted that if a non-paradigm case of interference with liberty arises, but there appears to be a pressing need to employ the measure in question on public interest grounds, the “deprivation of liberty” concept should receive a narrow interpretation, placing the measure outside it, even if the Engels criteria appear to apply.

If Austin v UK appeared to rely on an enhanced principle of subsidiarity, Von Hannover v. Germany (no. 2) (2012), also in the Grand Chamber relied, it appeared, on an enhanced application of the margin of appreciation principle (arguably reflecting para 19(a) of the draft Brighton declaration), this time in the context of a clash between protection for private life and for freedom of expression. Relying on the Court’s 2004 Von Hannover judgment, in the first applicant’s case, the applicants had subsequently brought several sets of proceedings in the civil courts in Germany seeking an injunction against any further publication of photos that had appeared in German magazines. They did not obtain relief, however, in relation to an article, partly about the Prince’s illness, accompanying photos of the applicants’ skiing holiday, nor in relation to the photos themselves.

The Grand Chamber noted that after the 2004 Von Hannover decision, the German courts had altered their approach and had sought to balance Articles 10 and 8 against each other in accordance with the Strasbourg stance. The Court accepted that the photos and article fell within the concept of private life under Article 8(1). Thus Articles 8 and 10 had to be balanced against each other. However, the Court found that where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (relying on MGN Limited v. the United Kingdom, no. 39401/04, at [150] and [155]). Although the photos were of the applicants on a skiing holiday, the national courts found that they could be linked to and supportive of the article, which did concern a matter of public interest – the Prince’s illness. The Grand Chamber accepted this finding, even though the pictures made little or no contribution to the matter of the illness.

This decision re-confirmed that Articles 8 and 10 are of equal value. But, under the margin of appreciation doctrine, it made it clear that the Court will require “strong reasons” to substitute its view for that of the domestic courts where a balancing exercise between Article 10 and 8 has been undertaken at the domestic level. The Court appears to be contemplating an expanded version of that doctrine, one under which the role of its own assessment of the extent to which paparazzi photos are deemed of value in Article 10 terms is marginalised. The acceptance that the photos in question added something to the article was clearly open to question. The photos were of the same nature as those at stake in the 2004 Von Hannover case which were found to contribute virtually nothing to any significant debate as to public affairs.

The danger may arise that a balancing exercise between Arts 8 and 10 may be apparently carried out domestically, but in a tokenistic manner, allowing flimsy public interest arguments to prevail. In other words, the arguments may be rehearsed by courts without any real attempt to probe the values at stake on either side. The argument accepted by the Court in Axel Springer v. Germany (2012) that since the actor applicant had been arrested and had also played a police officer, the public’s interest in knowing of his arrest was increased, could be applied in broad brush manner domestically, as could the argument that his expectation that his private life would be protected had been reduced since he had placed details of his private life in the public domain.

Conclusions

The suggestion of this piece is that the cases considered may be indicative of a very recent reversal of certain trends in the reasoning of the Court, and may be intended to deflect the criticism that the Court has been too interventionist. The Court in highlighting the role of the margin of appreciation and the principle of subsidiarity in these cases may be seeking to demonstrate that it is receptive to ‘reform’, and softening towards it, rather than being coerced into it. Under the banners of “margin of appreciation” and “subsidiarity” – without creating clear differentiation between those terms – both cases rely on deferring to the nationally created balance between public interest and individual liberty on the one hand, and between two competing rights on the other. The current debate on reform of the Convention system must consider how far pursuit of enhanced subsidiarity can and should represent a welcome attempt to constitutionalise the Convention more fully at national level without relinquishing its role as a means of delivering individual justice, with consequent changes at that level. That debate might also usefully consider the reality behind the desire for reform of senior Conservatives. How far does that desire relate to seeking to create greater respect for the Convention across all member states at national constitutional level, and greater convergence in terms of respecting Convention standards, to reduce the pressure on the Court? In reality, is the key concern to return autonomy in human rights matters to the Westminster Parliament by reducing the likelihood of Strasbourg intervention?

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


[1]             Eg the new stop and search power not dependent on reasonable suspicion under Part 4 clause 61 of the Protection of Freedoms Bill 2011 (currently the Terrorism Act 2000 (Remedial) Order 2011 introduced, on an interim basis, replacement counter-terrorism stop and search powers, exercisable without reasonable suspicion), and powers under TPIMs, replacing control orders.

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David Mead: The Right To Protest Contained By Strasbourg: An Analysis of Austin v. UK & The Constitutional Pluralist Issues it Throws Up

The last few days have proved to be eventful for anyone interested in free speech and protest. First, Cambridge PhD student Owen Holland was rusticated for seven terms for reading out a poem that disrupted a speech being given by universities minister, David Willetts. Had this fallen to the magistrates, under say s.5 of the Public Order Act 1986, rather than to the university’s disciplinary “court”, it is hard to see how the sentence meted out would not have been significantly less. The case it most closely resembles is DPP v Percy where a conviction under s.5 was overturned by the Divisional Court. Mrs. Percy unfurled a banner onto the ground outside a USAF air base in Norfolk, proclaiming “Stop Star Wars” to great consternation of serving personnel. Hallet J concluded that the magistrates had paid too little attention to the defendant’s rights to freedom of speech under Article 10 of the ECHR. In fact, charges may never have been brought. Under the new guidelines for public protest, published last week by the CPS, it is far likelier he would not even have been prosecuted. Various factors point to the public interest not being served: the protest was peaceful and was essentially only a minor infringement – though militating factors against were that it was probably not instinctive or done in the heat of the moment. All of this is aside from the potential liability of the university, as a “public authority under s.6 of the Human Rights Act, imposing what by any standard was a disproportionate penalty.

The other, more significant, event was the decision by the European Court of Human Rights in Austin v UK. This was the challenge to the decision by the Metropolitan Police decision to “kettle”, or contain, a group of some several thousand at Oxford Circus during the May Day protests in 2001. The police, perceiving a risk of violence and disorder (which did eventuate), imposed a cordon under the common law power to keep the peace. The applicants – comprising one protester and three innocent bystanders caught up in the containment – lost their case in the House of Lords in 2009. Their Lordships held that the cordon, that lasted for up to seven hours, did not constitute a deprivation of liberty within Article 5 of the ECHR. That decision was subject to uniform critical comment (by David Feldman in the CLJ, by Helen Fenwick in Public Law and my own piece in the EHRLR), specifically the idiosyncratic reasoning that was – in our collective view – clearly out of line with the great weight of Convention jurisprudence. Those who followed the case through the domestic courts were convinced that Strasbourg would see legal sense and reject the idea, propounded largely by Lord Hope and Lord Neuberger, that issues of proportionality were relevant to the question whether Article 5 was even engaged. Previous case law determined it played a role only at a later stage, when it came to deciding whether any deprivation was arbitrary, and so unlawful.

Sadly, we were all mistaken. While the Court in Strasbourg did not adopt the analysis of the House of Lords wholesale there is in truth little to discern between the two. Strasbourg does not specifically advert to proportionality as being part and parcel of Article 5 at the engagement stage – and we must be grateful for that. Instead, because of its emphasis on considering the whole context in which the supposed deprivation occurred, the result is much the same. Certainly the analysis by the House of Lords, that intention and motive should be one of the factors in determining whether there had been a deprivation, comes to play centre stage at Strasbourg. Despite its view that “an underlying public interest motive…has no bearing on the question of whether that person had been deprived of their liberty” (para 58), the approach it then adopted – that the type and manner of containment and the general context – effectively did that. Where the police impose a cordon as the least intrusive and most effective means “to isolate and contain a crowd, in volatile and dangerous conditions” (para 66) that would not involve depriving someone of their liberty. If we temporarily put pure legal analysis to one side, it is hard not to see how being held for up to seven hours without access to food or water, without shelter or perhaps suitable clothing on a wet, windy day was not depriving someone of their liberty. In common sense terms, what more was needed?

While the Court was keen to highlight the specific and exceptional facts, it has promulgated – wittingly or not –  a revision of the scope of the guarantee contained in Article 5, something it was at pains to stress elsewhere as a fundamental human right. It is hard to see why, or how, the various traditional factors that have historically underpinned the Court’s analysis should suddenly come to encompass “the specific context and circumstances” (paras 59 and 60). Three points seem to be worth making. First, those traditional factors – type, duration, effects and manner of implementation – tend to be the ones that are either capable of objective determination or in fact are viewed from the perspective of the putative detainee. Nothing in the Court’s history indicates that we should view deprivation through the eyes of the state or putative captor. Neither does “type and manner of implementation” mean “context” as well (para 65). Secondly, one factor that swayed the Court was the analogy drawn with other “commonly occurring restrictions on movement”: containment of away fans after football matches or becoming trapped with nowhere to go after an accident on a motorway. These examples also informed the outcome in the House of Lords but do they stand up? Many football fans might well see themselves as having been deprived of their liberty. In any event, would an officious bystander not think that those “deprived” of liberty in those situations would be seen as implicitly consenting to such restrictions when they set off for the match or on their holidays? The same is far from true of those who are kettled, and certainly not those three applicants who were innocently caught up in the indiscriminate police action. Last, from a conceptual point of view, Strasbourg’s analysis is problematic. It places the burden of arguing that containment was not for public protection purposes or was for longer than necessary on the citizen. This is a reverse from the usual approach under the qualified articles 8-11.

The judgment in other parts speaks with a different voice: the Court noted of Articles 10 and 11, which did not form part of the applicants’ case, that “it must be underlined that measures of crowd control should not be used by national authorities directly or indirectly to stifle or discourage protest.” It is hard to square this with its decision on Article 5. As I have written elsewhere this edges us towards the hitherto unknown concept of an illegal gathering, dealing with protesters en masse based on suspicions of a few. This is clearly out of line with the well-known principle, stemming from Ezelin v France, that no one should lose their right to protest peacefully simply because others are violent.

Austin does not provide the police with a carte blanche to contain when it is no longer necessary in order to prevent serious injury or damage; the Court could not exclude “that the use of containment and crowd control techniques could, in particular circumstances, give rise to an unjustified deprivation of liberty in breach of Article 5§1”. That though provides little guidance for future development. If the Court is keen to preserve its subsidiary role, some better indicia for national courts and police would have been of greater assistance. Presumably those set out by Lord Neuberger in the House of Lords (at [57]) take on greater resonance? It is something of an irony that if the prescribed by law test were applied to the Court’s own judgments, many would be found wanting. This is no different: could an officer know with sufficient certainty as to foresee the consequences of imposing a cordon? It’s doubtful, surely?

The decision was not unanimous. There is much greater and sounder strength to the dissent of Judges Tulken, Spielmann and Garlicki. It is they, for example, who point out that in its decision two years before, Gillan v UK, the European Court seems to be firmly of the view (though it decided the case under Article 8) that a stop and search for no more than half an hour could well be enough to constitute a deprivation of liberty. It is hard to see how Austin could be distinguished, given the clearly greater coercion and (we must assume) similar feelings on the part of those contained that they were entirely deprived of the ability freely to move. It is the dissenting judges too who highlight that the decision – and its implication of context, proportionality and purpose – is not limited to pressing cases of public order such as those in the instant case. It would apply to all detention and incarceration claims unless in future the Court can be prevailed upon to see Austin as an exception. That simply means that the law as it stands is even more opaque.

There are entirely plausible reasons – though not necessarily good ones – for the holding in Austin but they point to wider (inter-)institutional concerns. The Court was betwixt Scylla and Charybdis. If they found for the applicants on what was in effect the preliminary question, and held that the kettling constituted a deprivation of liberty, the UK and so the police would have lost. None of the justifications in Article 5(1)(a)-(f) would have held up: there was no specific obligation that any of them needed to fulfil and neither was any being detained on suspicion of having committed a crime. It would necessarily mean that any operation for the policing of large-scale disorder and protest would have had the power to contain removed from its “toolkit”. Whether this is good or bad is not the point, though we might simply pause to note that the Toronto police have recently foresworn its use so there must be alternatives. The Court will not have been unaware of the recent public and political reaction following Othman v UK, holding that Abu Qatada could not be deported to Jordan. Interim, we have had the leaking of the Brighton Declaration on the future of the Court (discussed on this ‘blog by both Mark Elliott and Noreen O’Meara). Is it surprising then that the narrowing of protection in Austin arose at a time when the Court and its judges might feel under heavy threat from politicians in member states – and indeed from leading judges? It would explain why it felt it could (should?) depart from A v UK, the Belmarsh case in 2009, which the three dissenting judges highlighted. There, the Court stated (para 171) that it did not accept the Government’s argument that

Article 5 § 1 permits a balance to be struck between the individual’s right to liberty and the State’s interest in protecting its population from terrorist threat. This argument is inconsistent not only with the Court’s jurisprudence under sub-paragraph (f) but also with the principle that paragraphs (a) to (f) amount to an exhaustive list of exceptions and that only a narrow interpretation of these exceptions is compatible with the aims of Article 5. If detention does not fit within the confines of the paragraphs as interpreted by the Court, it cannot be made to fit by an appeal to the need to balance the interests of the State against those of the detainee.  

We see dotted around the judgment many references to the idea of deferring to national decision makers, in particular courts, and positively acknowledging the subsidiary nature of the Strasbourg institutions.

The problem though is this. Strasbourg has done the very thing that those on the Tory right, such as Dominic Raab, normally accuse it of when it rules in favour of applicants: illegitimately usurping democratic decision-makers and unjustifiable expansionism on a grand scale. Austin is very clearly a judgment predicated on its “living instrument” approach (see para 53), something decried by Raab in his Daily Telegraph piece, but with one eye on its reception. In Raab’s view “the Court’s judges [have] assumed the power to extend human rights into uncharted areas. Courts should interpret the law, but leave elected lawmakers to create it.” Aside from the fact that Austin is not an extension of human rights but a narrowing, all that is true here. There is no warrant in any previous decision for the balancing that the Court adopted. Indeed as is clear from A v UK, it flies in the face of precedent, such as it is at Strasbourg. Nor was there any need. As the three dissenting judges pointed out, as indeed did the applicants’ counsel, the drafters felt the correct balance between individual rights and community security had been struck by expressly limiting the purposes which a deprivation of liberty might legitimately pursue. The fact that holding against the UK would have thrown public order policing into disarray is no reason for what Raab would no doubt in any other context have called a “shifting of the goalposts” and “subverting democracy”. If proportionality and purpose were properly to be part of Article 5, shouldn’t that be a decision for Council ministers? Sauce for the goose indeed.

David Mead is a Senior Lecturer in Law at the UEA Law School. 

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