Civil Liberties, Constitutional Law, Coronavirus, Criminal Justice, Criminal Law, Human Rights, Politics, Scots Law

The lockdown and public protest

On 25th May 2020 the world was shown a video of a 46-year-old black man, George Floyd, being restrained on the ground by a number of police officers in Minneapolis. That video showed one police officer kneeling on the back of his neck for almost nine minutes. Mr Floyd died and the police officers involved have been charged with a range of offences, including one officer being charged with murder. The footage has rightly caused anger around the world. This anger has resulted in riots happening in various places around the United States of America and protests have been held around the world in support of the Black Lives Matter campaign. Protests have been planned for the forthcoming weekend in Scotland.

The first half of 2020 has seen governments across the world try to deal with COVID-19, a novel coronavirus first seen in the Wuhan province of China in late 2019. Figures available at the current time place COVID-19 as the leading cause of death globally in 2020 so far. Governments throughout the world have been responding to the virus by placing varying degrees of restrictions on those who live within their jurisdiction in an effort to try and contain the virus. Whether these restrictions are the best way to go about achieving this aim is something that has been debated since the restrictions started to come in, but this post is not going to consider that question. What this blog post aims to do is consider how the right of assembly in Article 11 of the ECHR interacts with the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 (“the lockdown regulations”).

The lockdown regulations were made by Scottish Ministers on 26th March 2020 under powers conferred upon them by the Coronavirus Act 2020; they came into effect immediately. The Scottish Government has also published guidance on the lockdown and I have considered the interaction between the law and the guidance before (mainly in the context of the powers of the police and the approach to policing adopted in some parts of the United Kingdom). The lockdown regulations are what is known in law as “subordinate legislation”; that is, they are laws that have been made not by Parliament itself, but by government ministers exercising powers delegated to them by Parliament; in this case, it is power delegated to Scottish Ministers by the United Kingdom Parliament. When ministers are making subordinate legislation they cannot exceed the authority given to them by parliament. That is to say, if subordinate legislation made by Ministers includes something which Parliament has not given them the power to do then the courts can strike down the subordinate legislation to the extent that it exceeds Ministers powers (i.e. it is outside the Minister’s competence)

In Scotland, under section 57(2) of the Scotland Act 1998, Scottish Ministers do not have the power to make any subordinate legislation where it is incompatible with the rights under the European Convention on Human Rights (i.e. those rights listed in Schedule 1 to the Human Rights Act 1998). That includes both the right to freedom of expression (Article 10) and the right to freedom of assembly (Article 11). The lockdown regulations therefore always have to be read in a way that is compatible with the convention rights and where they cannot be read in compatibly with them, they will be outwith the competence of Scottish Minisers and “not law”.

Regulation 6 of the lockdown Regulations prohibits all gatherings in a public place of more than two people except in a list of specific circumstances. None of which would reasonably apply to a public protest. It is an offence to fail to comply with Regulation 6; however, Regulation 8(4) of the lockdown regulations provides a defence to an infringement of a Regulation 6 where the person has a “reasonable excuse”. Most will, by now, be familiar with the “reasonable excuse” provisions, but mainly in connection with Regulation 5, which provides that no person may leave the place that they are living except with a reasonable excuse. In respect of a public protest there are two parts of the lockdown regulations in play: there is Regulation 5, which comes into play when a participant leaves the place that they are living and then there is Regulation 6, when the arrive at the place where the protest is to take place.

In this post, I am only going to focus on the relationship between Regulation 6 and Article 11. That is because, if the protest would be lawful under Regulation 6 then it would follow that a person leaving the place where they live to attend the protest would be a reasonable excuse. To say otherwise, would be an absurd reading of Regulation 5 in the context of the lockdown regulations as a whole.

Article 11

This Article provides that everyone has the right to freedom of peaceful assembly and to freedom of association with others. However, as with nearly all of the convention rights it is not an absolute right and can be subject to restrictions which are “prescribed by law” (for example Regulation 6 of the lockdown regulations) and which are “necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others”.

The European Court of Human Rights has held that the exceptions in Article 11 are to be construed strictly and that only convincing and compelling reasons can justify restrictions. The restrictions must be in the pursuance of a legitimate aim and must be proportionate to that aim. The government has to be able to show a rational connection between the restrictions and the legitimate aim being pursued.

The lockdown regulations have been made for a specific purpose, which is set out in the preamble to the lockdown regulations which states that they have been “made in response to the serious and imminent threat to public health which is posed by the incidence and spread of coronavirus in Scotland.”

The Government has been clear throughout that large public gatherings of people pose a particular risk in respect of the spread of coronavirus. However, there are a number of things that need to be consider. Is the complete ban on public gatherings as included in Regulation 6 proportionate to the legitimate aim being pursued? Is there a less severe restriction that could be placed upon people? Also, there is, I would suggest, a difference between indoor and outdoor gatherings (indeed, the Government’s own guidance draws that distinction on meeting family members). Another relevant factor, I would suggest, is that a public protest is different in nature to a gathering for a football match or a music concert.

I have previously expressed concern that the apparent complete ban on public protest is something that is unlikely to be compatible with the convention rights, even in the current circumstances. For example, a protest which takes place in a large open space where everyone is staying at least 2m away from people who are not members of their own household and where appropriate face coverings and other protective clothing (such as gloves) are being worn may well present a difficulty for the Government. That is not to say that it would be impossible for the Government not to show that banning such a protest is a proportionate means of meeting their legitimate aim; only, that it will be considerably more difficult than, say, defending the ban as it relates to sports fixtures. However, on balance, there is, I think, a strong basis for suggesting that the Government would ultimately be successful in defending the current position if it was forced to, but in doing so it would be facing a reasonably strong argument that its actions were unlawful.

The subject-matter of the protest also has, I think, to play a part in the balancing exercise as well. Is it a protest that could reasonably be delayed to a point where the restrictions are less stringent than they are now or would the effectiveness of the protest be undermined if it were to be delayed? Clearly, the black lives matter campaign is front and centre in the global news cycle at the moment and that is, I think, a factor which would need to be weighed into the consideration. However, equally, the campaign is one that has (sadly) been going on for a very long time and is almost certainly going to need to continue beyond now. It is a depressing reality that there continues to exist in our world a significant degree of racism and racial prejudice. On balance, I’m not convinced that an urgency argument would necessarily tilt the balance against the government.

It may also be worth noting that the High Court in England and Wales refused interim injunctive relief in a judicial review in a challenge brought to the English equivalent provisions and brought with the aim of enabling a mosque to open for Friday prayers at the end of Ramadan. That case was concerned with Article 9 (freedom of thought, conscience and religion), but it is worth of note. In that case Mr Justice Swift did not think that “there [was] any realistic likelihood that the Claimant’s case on Article 9 will succeed at trial”. There are, of course, important difference between the cases: (1) the concern different convention rights; and (2) the circumstances are quite different – one concerns indoor gatherings while the present context is concerned with outdoor gatherings. Furthermore, it deals with different (albeit substantially similar) statutory provisions, but with the same underlying reasoning. Despite his findings, the judge granted permission for the judicial review to proceed. There are a number of challenges in England and Wales to the lawfulness of the lockdown generally, or to particular sets of circumstances. Some, on a first appearance, are stronger than others.

Reasonable Excuse

One other matter that should be mentioned is the “reasonable excuse” defence to a charge of breaching Regulation 6. Regulation 8(5) provides the non-exhaustive list of reasonable excuses that we have all become very familiar with over the past weeks. None of the examples listed would cover a public protest; however, it is not a complete list. It would be open to argue that a public demonstration on a matter of public interest is something that falls within a “reasonable excuse”. Whether the court would accept that it was a reasonable excuse standing the reasons behind it is another question altogether. I’m not convinced that a court would find the protest as a reasonable excuse to be in a gathering of more than two people outside of the circumstances provided for in Regulation 6.

Conclusion

I am not going to say that the protests definitely are legal or illegal; that is not something that can be said with complete certainty and would, ultimately, be a matter for the courts to determine. However, while I have some concerns that a complete blanket ban on all public protests might not be convention compliant, the court is only going to be concerned with whether restricting the protest concerned was or was not a breach of convention rights. On balance, however, I think it likely that the protest would be a breach of Regulation 6 and that the interference with the Article 11 rights would be considered a proportionate means of pursuing the legitimate aim of reducing the spread of COVID-19 and that it is rationally connected to that aim. It is not the job of the courts to decide on policy, only whether the policy is lawful. There may be alternative ways of achieving that aim and the court may, if it were the decision maker, have favoured one of those other ways; however, that is not the test. If the policy decision is lawful, then the existence of another decision that the court would have preferred is irrelevant. I may, of course, be wrong on both of these matters. The issues are complex: the right to freedom of assembly is a vitally important right in a democracy, but the circumstances in which we find ourselves are truly extraordinary.

I am not going to say whether people should or should not participate in a protest this weekend. That is a matter for them. If people do attend a protest in Scotland this weekend they need to consider that doing in doing so it is likely that the will be committing a criminal offence. Equally there may be a defence to that offence or grounds to challenge the lawfulness of the regulations in terms of their compatibility with convention rights. There are processes for dealing with such arguments should anyone ultimately be prosecuted and wish to take the argument. However, they should also consider that there is no guarantee, or even a strong prospect, of those defences or challenges succeeding. I cannot, as a solicitor, encourage people to break the law.

The Scottish police have, generally speaking, handled the policing of the lockdown far better than their colleagues in other parts of the United Kingdom. What action they will take is, of course, something for them to consider. Whether they would try to breakup a protest that was peaceful, socially distanced and in which the participants were taking all reasonable precautions not to spread the virus is something that I wouldn’t like to express a view on, but I would hope that they would approach the situation proportionally taking into account that the issues are very different to, for example, the gatherings that were seen last weekend around Scotland. The Chief Constable indicated today at the Scottish Governments briefing that Police Scotland had been working with some of those involved in the protests this weekend; I would encourage (for what it is worth) anyone organising a protest to engage constructively with Police Scotland. I would also encourage anyone who attends a protest to approach any engagement that they have with the police (whether that be Police Scotland or the British Transport Police) in a courteous and constructive manner.

It is not just the protest itself that needs to be considered, but how people are getting there. The use of public transport and people travelling from some distance away to attend the protest is all something that needs to be factored in. An increased number of people using public transport to get to the protest is likely to increase the risk to those who work on the transport system and also to those who are using the transport system to get to work that they cannot do from home (in particular, NHS staff). People travelling from far and wide also, one would assume, comes with risk of them becoming carriers of the virus which could result in increased numbers of infections throughout the country. These are considerations that should not, in my view, simply be dismissed or minimised. They are very real concerns. The basis of the government’s restrictions on gatherings is to limit as much as possible contact which is likely to enable the virus to spread within the community.

Finally, none of the above should be taken as formal legal advice. It is not intended as such; it is merely a consideration of some of the issues that arise. If I were to write a full appraisal of the matter, fully referenced with authority, this post would be far longer than it already is. This blog post has gone through several iterations and when I started to write it I did so with no clear idea where it would end up; such are the complexity of the issues at hand.

Civil Liberties, Constitutional Law, Criminal Justice, Criminal Law, English Law, Human Rights, Legal System, Public Law

Coronavirus, guidance and the law

The United Kingdom, like the rest of the world, is in the midst of a public health emergency. COVID-19 is spreading through the world with devastating consequences for individuals, families and communities. Ministers in each of the four governments within the United Kingdom have made Regulations, either under the Public Health Act 1984 (England and Wales) or the Coronavirus Act 2020 (Northern Ireland and Scotland). Those Regulations can be found here:

England
Northern Ireland
Scotland (and the Scottish Amendment Regulations)
Wales (and the Welsh Amendment Regulations)

There is some difference in the form that the Regulations take, but there is very little difference in the substance of the Regulations applicable in each of the four constituent parts of the United Kingdom. I don’t intend on dealing in this post with the differences in substance that do exist between the Regulations in each of the four nations. Instead, my focus in this blog will be on something different. It will be on the difference between the guidance issued by the governments and the Regulations made by Ministers.

On social media there has been a large amount of concern expressed at the way in which the public health emergency is being policed. We’ve already seen examples of one police force arrest, detain and charge someone with an offence that didn’t even exist (the judge presiding over the case didn’t come out of it smelling of roses either) and of overly-restrictive interpretations of the law (such as only being permitted to buy “necessary” items when in the shops or only being permitted to make necessary journeys) and other examples of the law seemingly being made up on the spot (such as the South Yorkshire Police officer filmed telling people, contrary to the express words of the English Regulations, that they couldn’t be in their front garden).

I will say this before I go any further: of course there will be plenty of police officers applying the law diligently and fairly, having sensible and proportionate conversations with people in their communities; however, their good work is being over-shadowed by the poorly worded and inaccurate communications coming out from official police sources (such as social media accounts and websites). It won’t be the good work that determines the way in which the police will be viewed in light of this pandemic. What people will ultimately look at is the poor decisions, the unlawful actions and how wide-spread they were. Every poor decision, every unlawful action (no matter how well intentioned) will reflect badly on the police.

The Chief Constable of Northamptonshire Police was in the press this week declaring that the public had now had enough time to get used to the Regulations. Well, the same is true for the police. If police officers are unfamiliar with the Regulations then they should spend more time reading them and less time listening to press conferences by politicians.

There has been a considerable conflation between the guidance and the law. That doesn’t just extend to the Police, the Government has been equally unhelpful in this regard. I am not objecting to the police publicising the guidance nor am I objecting to the Police having conversations with people in their communities about the guidance. What I am objecting to is the conflation of the two. They are not interchangeable. The guidance contradicts the law in a number of areas; the guidance is far more restrictive than the law actually is. This has been known for some weeks and the law has gone uncorrected, we can therefore deduce that these difference were probably not a mistake and that the “gaps” in the law are not mistakes; instead, we must work on the basis that they were as a result of deliberate policy decisions taken by Ministers. It is not for the police, nor is it for the courts to attempt to fill perceived gaps in statutory provisions.

An example that keeps being used when the difference between guidance and law is brought up is the Highway Code. That, however, is a fundamentally misconceived comparison. The Highway Code was originally made under section 45 of The Road Traffic Act 1930. Section 38(1) of the Road Traffic Act 1988 expressly retains the Highway Code. The remainder of Section 38 makes provision for the updating of the Highway Code, including for scrutiny by Parliament of proposed amendments which are not made in consequences of the enactment, amendment or repeal of statutory provisions. Finally, the legislation expressly permits the Highway Code to be used to help prove or disprove liability in both civil and criminal cases. It is therefore a statutory code and is not an appropriate comparator for non-statutory guidance.

The guidance issued by Ministers in relation to coronavirus is non-statutory, indeed Ministers could have sought powers from Parliament when passing what is now the Coronavirus Act 2020 in order to issue statutory guidance or codes and made provision for how they should be treated. However, they did not. Where the guidance contradicts the express words of the Regulations, it will be entirely ignored by the Courts and it should also be entirely ignored by the Police when they are working out what powers the Regulations do and do not give to them.

While there are no cases from the appellate courts interpreting these Regulations we do not start from scratch when it comes to interpretation. There are clear rules, built up over a very long time, as to how statutory provisions are to be interpreted. These rules are well known to lawyers; Parliament will be deemed by the courts to have known them when passing the primary legislation and Ministers will also be deemed to have known them when making the Regulations. The phraseology used in the Regulations is clearly intended to be flexible rather then prescriptive. The lists of “reasonable excuses” expressly provided for in the Regulations is non-exhaustive and the list that appears in the Regulations is very different to the list that is repeated every day at ministerial press conferences. There is, for example, no prohibition in the Regulations on buying non-essential items (including luxury food items). Neither is there a prohibition on making “unnecessary journeys”.

Also, the UK Government has recently updated parts of its guidance in response to pre-action correspondence challenging the lawfulness of aspects of its guidance. That is a clear reminder that although the Government can issue non-statutory guidance it is constrained by the law as to what that guidance contains. It is therefore necessary to not simply look and see what the guidance says, but also to consider whether it is lawful (e.g. does it discriminate on the grounds of a protected characteristic). The courts will also, rightly, reject any part of the guidance which, while not contradictory to the coronavirus regulations, is otherwise unlawful.

The Human Rights Act 1998 still applies, it has not been amended or modified by any of the Coronavirus legislation. The Act does permit flexibility; however, legislation will always be sought to be read compatibly with it. Indeed, Secondary legislation (such as the Regulations linked to at the start of this post) is even more vulnerable to it than Acts made by the UK Parliament. It is almost certain that the appellate courts will seek to interpret the coronavirus laws as narrowly as possible given their considerable infringement upon our rights and liberties. It is unlikely to interpret it in a way that is wider than what is absolutely essential for the purpose that it was made for. Proportionality in the interpretation will be key; the courts will certainly not accept the more extreme interpretations given to them by some police officers.

I’m not just going to criticise the police in this post. I hope to provide some possible solutions to these problems; my ego doesn’t stretch to me assuming that anyone will pay the blindest bit of notice to them, but nevertheless it is important that I seek to balance the criticism with some suggestions of what the police could start doing.

The Police could help by starting to clearly differentiate between the guidance and the law in their public communications. Where they taking action in respect of criminal offences then they should leave out all mentions of the guidance and instead only refer to the law. Where they are encouraging compliance with the guidance they should leave out all references to enforcement.

Those mostly responsible within the police for public communications are not police officers, but the senior leadership of the police forces should get involved. They should be taking steps to establish protocols to ensure that confusing and inaccurate things are not published. Perhaps a senior officer with a good understanding of the Regulations could be appointed to work with the corporate communications team within the force? They could be a point of contact for the PR team so that they can run things past them before they’re published, someone who can field enquiries by the press and be the face of the local response to the policing of these Regulations. That would help to ensure clear, accurate and consistent messaging. If there isn’t a senior officer with a good understanding of the Regulations the Chief Constable could perhaps task one to spend time getting up to speed with what the Regulations say, how they differ from the guidance and where the guidance contradicts the law.

The conflation between the guidance and the law will not be helping the police logistically either. No doubt the police are being inundated with reports of conduct which, while not in compliance with the guidance, is not actually an offence. The police could probably do without unnecessary contact from the public. However, their current strategy is most likely going to be encouraging that contact by not adequately differentiating between things that they have powers to deal with and things that they are powerless to deal with. As police resources become stretched they will require to direct those resources towards people actually breaking the law (whether that be the coronavirus laws or other offences such as assaults, sexual offences, thefts etc.). So, changing their communications strategy is also in their interests from a resources perspective.

Finally, there is no contradiction at all in saying that people should seek to follow the governments’ guidance and apply common sense while at the same time the police should not be confusing the law with the guidance and should only seek to enforce the law. As an asthmatic who is entitled to the flu vaccination on the NHS each year I am in the “high risk group” (although I don’t fall into the very high risk category as my Asthma is generally well controlled). I’ve been following the government’s guidance. I’ve not left my property since Monday (when I went to buy food from the shops). I’ve been engaging in social distancing since before the laws were made. Indeed, by the time the Scottish Regulations were made (which are the ones that directly apply to me and to my life) I had already been in “lockdown” for over a week. Personally, I would quite like it if everyone just stayed at home so as to reduce the risk to me of contracting this virus. However, as a lawyer I am a firm believer in and supporter of the rule of law. It is sacrosanct; especially in emergencies. The rule of law is what makes us a democratic society rather than a totalitarian one.

Civil Law, Civil Liberties, Constitutional Law, Criminal Justice, Criminal Law, English Law, Human Rights, Legal System, Scots Law

A quick defence of legal aid

The debates around legal aid in Scotland earlier this year and in England over the last year have been characterised by a number of clear misconceptions by the public at large.  There is a view that legal aid exists only to make ‘lawyers rich’ and that the vast majority of those receiving legal aid are in some way ‘undeserving’.  These views are of considerable concern as the simply enable Governments in Edinburgh and London to press ahead with legal aid ‘reforms’ that will substantially damage the country.

Legal aid seems to get lumped in with job-seekers allowance, housing benefit, council tax benefit and such like (I have even, on more than one occasion, seen comparisons drawn between legal aid and the NHS); these comparisons are illogical and ignore fundamental aspects of legal aid which set it apart from any other government spending.

Equality before the law is fundamental to ensuring access to justice.  The ability of all (and not just the rich) to access the legal system is of fundamental constitutional importance.  The ability of individuals to defend themselves against the power of the state (whether in civil or criminal proceedings) and to challenge the state through Judicial Review are essential to our constitution.  Without this ability we are not a liberal democracy.  The issue of access to the law isn’t only confined to making it possible to bring or defend a claim, but it has to create a realistic ability to access the law.  That means providing good quality representation (and importantly permitting those bringing or defending a claim to select their own law agent).  Without client choice you are left in a situation where the State is selecting the representatives of those who it is brining a claim against or whom it is defending a claim against.  If you were suing your mobile phone provider and had to use the solicitor that they selected for you, you would instantly see a conflict of interest.  However, that same conflict does not seem to be as apparent when the State is involved (although it is there and just as important).  There has to be equality between the parties in the legal system and for those who cannot afford to pay their own legal fees it is left to the State to ensure fair access to legal representation.

In criminal cases, it is about defending yourself against serious accusations made by the State.  The consequences of conviction are, quite rightly, serious.  Conviction can lead to a loss of employment and a loss of liberty.  Not everyone who gets legal aid in criminal cases is guilty, a great many people are innocent and it is important that they are able to robustly challenge the State who has to prove their allegation.  It’s about ensuring fairness in the system; an individual against the might of the State (with the police and a professional prosecution service for back-up) is not a fair fight.  Legal representation is essential to ensure fairness (whether they are guilty or not).  It might be unpopular to see guilty people get vast sums of public money to defend themselves, but isn’t that a price worth paying to ensure that we have a fair and balanced system ensuring that, as far as is possible, only the guilty are convicted?

Judicial Review is very much disliked by the Government, as should be expected.  Judicial Review is the citizen challenging a decision made by the Government; it’s about ensuring that the Government only takes decisions which are legal.  It is an area under attack by the Government and it is vitally important.  Without effective access to judicial review, the State can go unchecked and be able to take decisions which are illegal.

The need for access to legal aid does not just extend to cases which involve the State.  Individuals seeking to enforce their contractual rights against a company or gain compensation when a company is at fault and they have lost out as a result or to enforce their consumer rights need to have the ability to seek recourse in the courts when pre-litigation action fails to achieve a result.  Without the ability to go to Court and seek a legally enforceable court order to enforce their rights, the rights that they have are effectively meaningless.  The threat of litigation can prevent litigation.  The knowing that an individual can seek recourse to the Court in order to give effect to their rights can be enough to make people comply with their obligations.  Without that effective recourse, people will be free to ignore their obligations with impunity.

Legal aid and access to justice go to the very heart of our constitution and democracy.  It’s not a benefit; it’s a constitutional right  Legal aid is much more important and serious that housing benefit or job seekers allowance (as important as those are); it’s fundamental to our society.

Civil Liberties, Criminal Justice, English Law, Human Rights

Criminal record checks, Article 8 and fairness

On Tuesday the Court of Appeal issued an important judgment on the disclosure of criminal records and its relationship to the right to a private and family life; protected by Article 8 of the European Convention on Human Rights (ECHR) as incorporated into domestic law by the Human Rights Act 1998.

The main question before the Court was whether the requirement for applicants to certain types of job to disclose all previous convictions was incompatible with the ECHR.  The Court of Appeal held that the requirement to disclose all convictions was disproportionate to the aims of the policy; consequentially it found that there was a breach of Article 8.  Yesterday, the Government announced that it intended to appeal that decision to the United Kingdom Supreme Court.

The decision by the Government to appeal the decision to the Supreme Court is a disappointing one.  It demonstrates a lack of commitment to their so called “rehabilitation revolution”.  Not so long ago the Prime Minister gave a major criminal justice speech which promised a “tough but intelligent” approach to criminal justice from his Government.  The decision to appeal this Court of Appeal seems to fly in the face of the promise of an intelligent approach to justice.

Clearly there is a legitimate aim in ensuring that those who are genuinely unsuitable to work with children or other vulnerable people are prevented from doing so.  No sensible person is suggesting that this shouldn’t be the case.  However, the current approach is really rather ridiculous.

Each and every single one of us gets things wrong; we make bad decisions and that can have consequences for us.  If we commit a criminal offence and that is detected then quite rightly there will be a consequence: a fine, community service or even a prison sentence.  Those who break the law are punished by the Court in the way that the Court; taking account of all the circumstances of the case, decides is appropriate.

Once a person has served their sentence; the punishment for the crime that they have committed, they should be able to get on with their lives.  There should be no restrictions placed upon their life unless absolutely necessary for the protection of the public.  Rehabilitation requires that people are able to get jobs and when whole professions are closed off to them because of some minor convictions (some of which may well be extremely old) then this becomes significantly harder; it may even act as a disincentive for a person to desist from crime.

There were some fantastically stupid examples of criminal convictions that were so old that they may as well never have existed preventing people from standing as candidates for the Office of Police and Crime Commissioner in their area.  Some of these convictions were40 years old and the individuals in question had dedicated their life to public service.  How can it be right that convictions that old can still be considered relevant when the individuals have clearly demonstrated that they have been successfully rehabilitated?  It just seems to be part of a never-ending punishment that our society largely considers it acceptable to place upon those who transgressed the law in their past.

It is entirely possible to devise a system which ensures that vulnerable groups are protected from those who pose them harm whilst also ensuring that those who have changed their lives or have simply made a few bad choices in their past can get on with life and not be forever reminded of and plagued by their past.  It’s not easy to do, but that shouldn’t stop the Government from devising such a system; it might well take them some considerable time.  However, if we want to progress as a society and ensure that those who want to be rehabilitated can actually be so; then we need to ensure that we provide an environment in which that can be achieved.  The present system cannot facilitate that and the Court was quite right to find that there was an unjustified interference with a person’s Article 8 rights as a consequence.  The Government should be spending time and money on a replacement system rather than appealing to the Supreme Court.

Carloway Review, Civil Liberties, Criminal Justice, Criminal Law, Human Rights, Legal System, Protest For Justice, Scots Law

Criminal Legal Aid Contributions, Professional Representation and Justice in Scotland

Yesterday evening the Scottish Parliament voted by a majority of 9 to pass into law the Scottish Civil Justice Council and Criminal Legal Assistance Bill into law.  The Bill will now be submitted to the Queen for Royal Assent.  It was a disappointing end to a hard fought campaign by a wide range of people to try and prevent Part 2 of that Bill being passed.  However, it was always going to be an impossible task with the Government having a majority in Parliament.

The first part of the Bill; the establishment of the Scottish Civil Justice Council, was generally uncontroversial and was the result of a lengthy piece of work submitted to the highest levels of scrutiny.  The Scottish Civil Justice Council came as a consequence to the review of civil justice in Scotland carried out by the now Lord President, Lord Gill.  It is a shame that this element of the Bill was overshadowed by the second part of the Bill.  Had the two been separate it is likely that the Scottish Civil Justice Council part would have received unanimous support in the Scottish Parliament.

The significant expansion of contributions to criminal legal aid as a result of this legislation will have a profound impact on justice in Scotland.  I’m not going to write at great length on the merits of the Bill as I have done that in a number of posts (and others have written elsewhere much more eloquently than I have).  The proposals will undoubtedly lead to a number of appeals under Article 6 of the European Convention on Human Rights (the right to a fair trial).  The Government and Presiding Office (presumably with legal advice) are both happy that the contents of the Bill are compliant with the European Convention on Human Rights; however, there is the very real possibility that the contributions system will begin to give rise to “devolution minutes” once it begins to take hold in the system.  That will certainly be something to keep an eye out on to see what happens in that respect.

It is clear from speaking to practitioners in person and through social media that there is a very real anger over yesterday’s result.  It is just one of many things to have arisen over the last few years that have caused anger.  Some of that anger is directed towards the Law Society of Scotland; particularly in their representation of the profession in these matters.

It has been reported that there was to be a challenge lodged to the Society’s position as the sole representative body of Solicitors in Scotland which will be founded upon Article 11 of the European Convention on Human Rights.  I am not a solicitor and I have not had many dealings with the Law Society of Scotland.  I only know what others have told me (and I’m not inclined to make my own decision purely upon the basis of third party complaints).  However, it has always been something that has intrigued me about the legal profession.  I’m a supporter of Trade Unions and the representative functions that they undertake.  However, I’m equally supportive of a person’s right to choose their representative body (and to elect not to belong to such a body).  That goes not just for lawyers, but for others who have a single statutory representative body with no choice as to who they have representing them.

I think it is only right that if people want a different representative body that this is a choice that they have.  It will be interesting to see if this case goes ahead and what the outcome of it might be; it could have a profound effect on the United Kingdom extending beyond the legal profession.

The fight to ensure justice in Scotland will no doubt continue as the programme for reform of the criminal justice system continues over the coming years.  There are proposals in the pipeline that will likely gain similar; if not greater, reactions from the legal profession (corroboration and contracting to name two).  It’s an unsettling time in the criminal law for Scotland; but it’s an equally interesting one.

Civil Liberties, Human Rights, Politics

Prisoners’ Votes and the Rule of Law

The row over prisoners’ voting trundles along at Westminster with Justice Secretary Chris Grayling MP announcing that Parliament had a clear right to ignore the judgment of the European Court of Human Rights.  The European Court of Human Rights found that the current position in the UK, which bans all convicted prisoners from voting, is incompatible with the European Convention on Human Rights.  The United Kingdom has been given until November 2012 to comply with the judgment, but the UK Government is continuing in is defiance.

This defiance raises a fundamental question about the rule of law.  There is a constitutional convention in this country that says Parliament is supreme.  Our legislature is, in theory, not subject to any restrictions or authority which dictates what it can and cannot do.  However, over the years Parliament has voted to limit its sovereignty and one of the ways in which it did this was to agree to be bound by the decisions of the European Court of Human Rights.  In 1966 the United Kingdom accepted the right of individuals to petition the European Court and its jurisdiction.

The fact that the United Kingdom has accepted the jurisdiction of the European Court of Human Rights means that it is bound to implement its judgments, even the ones that it disagrees with.  Litigation carries with it the very real risk that at least one party will be left disappointed by the decision of the Court; that at least one party will dislike the decision of the Court.  However much a person disagrees with the judgment of a court they are bound to accept it, unless there is a route of appeal.  If there no longer exists a route of appeal then the matter is final and the discontented party will simply have to live with the decision.

If people began to disregard the decisions of a court which they did not agree with the existence of the court would be rendered pointless.  There would exist no effective remedy for people who have seen their rights infringed in some way.  A court exists to act as independent arbiters of disputes between two parties.  In the context of the European Court of Human Rights those disputes are between the State and the citizens of that State.  Once all domestic avenues have been utilised a citizen can take an alleged infringement upon their “Convention Rights” to the European Court of Human Rights for adjudication.  That is waht John Hirst (and others) have done over the issue of prisoners’ votes.  The European Court of Human Rights has found that the blanket ban on prisoners voting is incompatible with the Convention.  As a result of this the United Kingdom is under an international and legal obligation to amend the law so that it becomes compatible with the Convention.

You may or may not agree with the Government’s stance on the issues, but that does not negate the serious implications for the United Kingdom if it ignores this judgment and does not amend the law on prisoners not having the right to vote in UK elections.  The first consequence is that the United Kingdom will be liable to pay compensation to prisoners whenever they are denied their right to vote.  That could be expensive.  The UK prison population is probably just under 100,000 over all the UK jurisdictions.  It could cost the UK hundreds of millions of pounds each time an election occurs (based on compensation of around £2,000 per prisoner).  This is money that the UK simply doesn’t have and would mean that funding would be taken out of essential services.

Aside from the financial implications of the United Kingdom failing to adhere to the European Court’s ruling is the reputational damage to the United Kingdom.  The UK does not have a perfect record on human rights (no State does), but it does generally have a good reputation internationally for upholding the rights of its citizens.  The UK isn’t slow in telling other States that their human rights record is unacceptable.  A decision by the United Kingdom Parliament to specifically ignore the decision of a body established to protect the rights of citizens would significantly damage the United Kingdom’s standing in the world and could cause tensions between the United Kingdom and other nations.

Furthermore, the ignoring of this judgment would set a precedent.  This would be, I suggest, a dangerous precedent to be set.  It would set the precedent that if Parliament doesn’t like future decisions of the Court that it can simply ignore those decisions.  What if the decision was a lot more fundamental than this one?  What if the United Kingdom decided that it simply did not agree with a decision relating to the deportation of an individual to a country where they would be executed or tortured?  The precedent would be there for the Government to simply ignore the decision of the European Court and go ahead with the deportation anyway.

Some might argue that this is an entirely different situation.  It may well be a different situation, but the precedent it sets is no less serious.  Human Rights belong to all human’s by virtue of their status as a human being.  When we begin to deny rights to groups of people we have disdain for we enter a dangerous path.  If we look at some of the worst examples of human rights abuses in the modern world they all have one thing in common.  The stripping of the rights of people who the State did not like.  It’s not entirely analogous and is an extreme example, but if one considers Nazi Germany and the model employed there.  Basic and fundamental rights were denied to humans simply because they belonged to a particular group of people.  Some may say that such abuses cannot and will not happen again, but today around the world people are denied basic rights because of the part of society they happen to belong to.  Women are denied education simply because they are women, homosexuals are executed simply because they are homosexual and adherents of certain religions also face execution because of their religious belief.  It has happened in Europe before and if we believe that it cannot happen again in Europe then we have not understood the lessons from the first half of last century.

The issue of prisoners’ voting (or the wider prisoners’ rights movement) may not be on the same scale as the genocides of Nazi Germany.  However, the precedent of abandoning human rights principles and of stripping groups of people of their rights based solely on their status in society is a dangerous one.  It is one that we should not permit.

Parliament has to do the right thing and accept the judgment of the European Court of Human Rights on this issue even though it may not agree with it.  Parliament has to extend the franchise to some prisoners removing it on much more objective criteria than simply the fact that a person is a convicted prisoner.

Civil Liberties, Human Rights, Legal System, Leveson Inquiry, Politics

Culture, Practice and Ethics of the Press

Lord Justice Leveson was appointed in the summer to chair an inquiry under the Inquiries Act 2005 into the “Culture, Practices and Ethics of the Media”. The inquiry came after the extraordinary revelations of illegal practices at one particular weekly newspaper. That newspaper, the News of the World, is no longer in publication after it was revealed that the paper was involved in regularly breaking the criminal law by way of hacking into the private voicemail messages of people in order to get stories. Initially it was asserted that the practice was confined to one rouge journalist and one private investigator, both of whom were prosecuted for offences relating to phone hacking.

Since the fresh revelations over the summer various investigations and inquiries have been taking place. The Metropolitan Police are investigating the wider issues of phone and e-mail hacking, Strathclyde Police are investigating similar matters in Scotland at the direction of the Lord Advocate, House of Commons select committees have heard evidence on the matter, including from Rupert and James Murdoch, and much has been said and written in other forums.

The inquiries by Lord Justice Leveson and the House of Commons select committee have had to tread very carefully in order to safeguard any potential future prosecutions that result from the investigations by the Metropolitan Police and Strathclyde Police. The Police have suffered their own criticism though. The Metropolitan Police suffered some quite high profile casualties as a result of its failure to investigate the issue properly and fully in 2006 when it first came to light and Glenn Mulcaire was given a custodial sentence for phone hacking.

At the time the News of the World insisted that it was confined just to one journalist and to a private investigator therefore limiting the scandal to the Royal Family. However, as time has passed it transpired that the practice was, at the News of the World at least, quite widespread. It is understood that the paper hacked into the voicemail of Milly Dowler deleting messages from it when it became full. This gave the police and more importantly her parents, family and friends a false sense of hope that she might still be alive. The public, quite rightly, condemned this particular use of phone hacking and were quite clearly disgusted by it.

The evidence that has been given to the Leveson Inquiry has been rather interesting and has raised some important points and issues. It has, however, given us an insight into the mind-set of the tabloid press. Some of the most controversial evidence given to the Leveson Inquiry to date came from a former News of the World journalist, Paul McMullan. It’s hard to select just a few of the things that Mr McMullan said during his evidence that caused one to raise an eyebrow as there are so many examples from which to choose. However, as I have identified above the hacking of Milly Dowler’s phone I believe that this would be a good starting place to look at Mr McMullan’s evidence.

In respect of the hacking of Milly Dowler’s mobile telephone voicemail messages Mr McMuallan appeared to argue that the hacking was in fact a good thing. His argument was based upon the premise that the police can get nothing right and that their inability to investigate properly means that journalists need to fill the gap and investigate for them. This, I submit, is a false presupposition to have made. Yes, there are times in which the police do not investigate things properly. Indeed it probably happens fairly frequently. Senior officers can get drawn down lines of inquiry that they believe are the correct ones and ignore others resulting in innocent people being caught up in the wake of the investigation, or  the investigation stalling, evidence being lost and the police without any further direction to take the investigation in. However, I would suggest that failings on such a grand scale, particularly in high profile cases, are really quite rare.

The press, no matter how well meaning they might be, should not be engaging in any activity that frustrates a police investigation. The Milly Dowler example is a good one for illustrating this point. The actions of those involved in the hacking were not only illegal, but because the messages were being deleted it brought a false sense of hope to the family and friends that Milly might still be alive, after all he voicemail messages were clearly being listened to.

Mr McMullan’s evidence to the inquiry was, in general, just as shocking as it was revealing. It appeared that he had no moral or ethical compass whatsoever and took the view that anything that was necessary to get a story was acceptable. Mr McMullan also failed to appreciate that there is a significant difference between what the public are interested in and the public interest. Simply because the public are interested in something doesn’t mean that they should in fact be given it on the pages of a newspaper.

There are some really quite perplexing problems to deal with here. It is clear that the press need to be ethical in the way that they carry out their duties. While the rule of law is important it is not inconceivable that a story of such great public interest cannot be obtained by any legal means. It would therefore be, in my view, appropriate to act outside of the law in order to obtain the evidence needed to reveal it. It should not, however, be a regular practice and should be reserved for only the stories which carry the gravest public interest considerations. The principle question in my view should be that in all the circumstances was the infringement of the law fair, reasonable and justified?

The word “regulation” has been bandied about an awful lot since the fresh revelations of phone hacking over the summer months. Principally it would seem that the argument that as the press has failed to self-regulate itself that an external regulator must now take over this role is becoming a somewhat popular one. I would fundamentally disagree with this proposition for two main reasons. Firstly, what is really meant by “the press” is “certain sections of the press, in particular the tabloid press”. As has been pointed out much of the press is more than capable of abiding by and upholding basic moral and ethical standards. Not all newspapers, for example, have been involved in the interception of voicemail messages, not all newspapers regularly engaged in “blagging” information, not all newspapers regularly employed the services of private investigators. We are, in effect, looking at one small section of the press and it is important to bear this in mind. My second reason for disagreeing with this proposition, and it is by far and away the most important, is that in a free and democratic society it is both necessary and desirable to have a free press.

Countries of whom the UK is often critical in terms of their adherence to commonly understood standards of democracy and human rights will often be ones where the press is heavily regulated or censored. It would be highly undesirable to follow those countries down the routes of licencing journalists and subjecting them to regulatory regimes.

There are, of course, laws in place to protect the morals and decency in society. It cannot be the case that journalists have a “get out of jail free card” by virtue of their chosen profession when it comes to breaking the civil and criminal laws of this country. Indeed the same would be applicable to the organisations that employ journalists.

When a journalist breaks the criminal law there is a balancing test that must be carried out. That balancing test is essentially looking at two competing elements of the public interest. First is the public interest of the story which they had written as a result of obtaining evidence by unlawful means. This then has to be balanced against the public interest in upholding the rule of law and prosecuting those alleged to have broken the criminal law. It is for prosecutors to decide, in the first instance, whether the public interest in prosecuting the journalist for their alleged infringement of the law outweighs the public interest surrounding the story that they broke.

Of course there are other factors that would need to be considered in any prosecution decision. Firstly, it would have to be considered whether the evidence obtained illegally could have reasonably been obtained in a way that was legal? Have all reasonable attempts been made to obtain the evidence legally?

The issues are not just strictly confined to the auspices of the criminal law. The issues surrounding press practices, conduct and ethics find themselves in the territory of the civil law also. Perhaps most acutely in terms of civil law areas are those of defamation and privacy. The latter of these two has proved to be rather controversial in recent years.

There is a fundamentally understood right to privacy. All people are entitled to a private and family life and there are elements of our lives that we all wish to keep private. That is not necessarily because, as Mr McMullan would have us believe, we are paedophiles or are up to no good. Privacy is not, as Mr McMullan would have us believe, only the space needed for people to do bad things. Yes, undoubtedly some people do get up to bad things in their private life. However, very few of us would be happy with, as an example, a copy of our full medical records published with nothing redacted.

There is a need, therefore, to consider carefully when to begin publishing details of a person’s private life for anyone to read. I remain entirely unconvinced that much of what has been published under the guise of being in the public interest in relation to people’s private life is indeed within the public interest. I rather suspect that it is more likely to fall into the category of things that the public are interested about (although I personally fail to understand why).

There are of course innocent people to consider in these situations. Anyone who has experienced the breakdown of a relationship because of an unfaithful partner will know the pain and suffering that it causes not only the other partner but any children who also happen to be involved. Imagine for a moment that your partner has an affair with another and the way in which you discover is by seeing it on the front page of the Sun. Imagine for a moment an incredibly painful and emotional time in your personal life being splattered across the pages of the Daily Mail. What if you opened the pages of the Daily Record and saw your partner kissing another person? Nobody wants that to be in public domain for everyone to read.

When we talk about privacy in these cases we are often talking about not only the privacy of the celebrity who has allegedly had the affair but also the privacy of their wider family. There appears to me to be little thought given to that dimension by certain sections of the British press.

I remain entirely unconvinced that a person’s apparent hypocrisy as portraying themselves as a faithful family orientated person necessitates the divulgence of the details of an alleged affair into the public domain. There might be, on some occasions, a public interest in such situations being divulged into the public domain, but I suspect that they would be few and far between and cannot think of any of the recent “kiss and tell” stories that have been divulged this year that would be sufficiently serious enough to justify their being published.

I am not suggesting that people’s private lives are completely off limits. There must be a public interest in interfering with that right though. An example might be the revelation that former Home Secretary Jacqui Smith had claimed for adult-rated films on her expenses. On its own the nature of what was claimed for might not have been in the public interest but in the wider scandal in which it came to light that might well have, and in my view did, shift the public interest balance in favour of identifying them as adult-rated.

I have written on this site before on the question of super-injunctions (those posts can be read here and here) and I do not want to spend much time considering them here other than to say that they are somewhat of an anomaly given the way in which social media is influencing the way in which people get their news. There are also jurisdictional issues to consider.  An example would be the case of CTB and how a Scottish newspaper could openly name CTB while those in England could not.

Injunctions, or in Scotland interdicts, clearly do have their place. They are granted only after careful consideration of the evidence placed before a court. Evidence which people openly flouting them and breaking them on Twitter, or indeed on the floor of the House of Commons, probably have no knowledge.

It will certainly be interesting to see what Lord Justice Leveson proposes in his final report and just what will come to light as he continues his inquiry and as the police investigations continue. However, I would lament proposals for regulation of the press by way of an “independent regulator” as that would begin to take us down a path that endangers free speech and expression. Perhaps, as has been suggested by some already, that tough financial penalties for those press organisations who wilfully flout privacy rules in their quest for a story without good justification. The idea of punitive damages may not be such a bad one if it were to avoid going to down the path of regulating the press. I am only glad that it is not I who has been tasked with brining proposals forward on this issue because if the wrong proposals are brought forward it could have seriously damaging and long-lasting effects on our democracy.

Civil Liberties, English Law

Tomlinson Inquest verdict

On 1 April 2009 London saw protests and demonstrations in relation to the G20 summit taking place the following day in London.  Following those protests a video was made publically available by the Guardian newspaper which showed a man being struck by a police officer and then violently pushed to the ground.  That man was Ian Tomlinson who collapsed and died shortly after.  Ian Tomlinson was walking away from the police, had his back to them and his hands in his pockets and posed no real threat or danger to the police.  Today, the inquest into his death concluded with a verdict of unlawful killing.  The jury decided that Police Constable Simon Harwood had used “excessive and unreasonable” force in striking Ian Tomlinson.

At the time the incident raised serious concerns about the conduct of the police when it came to policing demonstrations and those concerns have only grown as the years have passed.  Less than a month ago the High Court held that the police use of kittling at the same protest had been unlawful.  Last week there were reports of somewhat dubious “conspiracy” arrests ahead of the Royal Wedding on 29 April 2011.  A video of one such arrest can be found here.  There were also arrests of peaceful demonstrators in Soho Square, London on 29 April 2011 and a video of those arrests can be found here.

In relation to the death of Ian Tomlinson the Crown Prosecution Service are conducting a robust and thorough review into whether PC Harwood should be prosecuted or not and the Metropolitan Police Service has advised that PC Harwood will be the subject of internal misconduct proceedings.  It is of course for the CPS to decide whether PC Harwood should be prosecuted and if so what the charge should be.  However, I would have thought a charge of manslaughter would be a very likely option.  The question of whether PC Harwood remains a Police Officer or not is in the hands of the Metropolitan Police, but I find it hard to see how they could do anything other than dismiss PC Harwood following the result of the inquest.  Of course, any decision by the MPS may well be delayed until after the CPS decide what to do and the conclusion of any criminal proceedings.

Of course, not everyone agrees with the verdict.  An anonymous Police Inspector writing under the name of Inspector Gadget has suggested that the verdict may result in a reluctance for the police to get involved and lay hands on anyone.

The Police must be able to use reasonable force in order to prevent significant violence and disorder.  However, I find it difficult to believe that anyone looking at the video of the incident involving Ian Tomlinson could be of the view that the force used by PC Harwood was in anyway reasonable and justified.  Other video evidence of PC Harwood’s actions on that day suggest that he is either wholly unfit to be a police officer or at the very least unfit to be involved in any public order policing.

At least one comment on Inspector gadget’s post has me a little bit annoyed.  It goes as follows:

“SORRY !!!!!!!!!!!!!!!!!

Same old same old yet AGAIN, people have this officer hung drawn and quartered on the basis of what ?????

A ” BIT OF A VID “……………………AGAIN !”

I’m sorry but don’t the police use CCTV on a regular basis as a significant part of their case against people accused of assault?  What is the difference between moving images of a police officer using unreasonable and unjustified force against a member of the public and moving images of a member of the public using unreasonable and unjustified violence against a police officer or another member of the public? I fail to see any difference whatsoever between the two.

Due process should be allowed to continue with the MPS internal misconduct proceedings, the review by the CPS and any subsequent criminal proceedings.

Civil Liberties, Human Rights, International Law, Legal System

Should the UK withdraw from the ECHR?

Many times before on this Blog I have considered the Human Rights Act 1998 (HRA), the Convention upon which it is based, the United Kingdom’s relationship with that Convention and its institutions.  In a week where we hear arguments proposing that the United Kingdom should withdraw from the European Convention on Human Rights and Fundamental Freedoms 1950 (ECHR) I find myself once again giving thought to the situation and how we might have arrived here.

In the past I have largely been critical of the media and its selective or in some cases its misreporting of cases relating to Human Rights issues.  Generally I have been of the opinion that this is somewhat a deliberate act by certain sections of the popular press, but have been given cause to reconsider this position.  I had a discussion with a news agency recently regarding an article they had written in which they specifically blamed the European Union for a Human Rights matter.  What I discovered was, what appeared to be, genuine ignorance of the fact that the ECHR is entirely separate from the European Union and not only that but ignorance of the Council of Europe.  Whether this was a genuine ignorance or a pretend ignorance is something I would not wish to speculate on.  Furthermore, I would not wish to speculate as to whether any genuine ignorance in this case is something that is widespread across the various media companies within the United Kingdom.

The ECHR was drafted following the atrocities that were seen within the Nazi regime that had spread across a significant section of Europe.  It was drafted out of a desire to never again allow such atrocities to take place.  It was an important treaty at the time and its importance is equally as great, if not more so, today.  It guarantees the citizens of the 47 Nations who have signed the treaty fundamental rights and freedoms.  The rights contained within are ones that most people would consider to be fundamental: the right to life, the right to be free from torture, the right to a fair trial, freedom of expression and such like.  They are rights and freedoms which anyone in a western democracy would consider as being essential elements of a democracy in the sense that without them there would not be democracy.

A treaty is a powerful statement of intentions by a State.  When signing up to such a treaty it sends out a message from the state to its citizens and other nations around the world.  It clearly illustrates the basic values and principles which that State believe in.  However, a treaty is nothing other than a statement.  Without an institution by which member states can be held accountable it lacks a bite.  This was the feeling at the time and resulted in the birth of the European Court of Human Rights (ECtHR).  Without such an institution the treaty is almost meaningless, but through the ECtHR the citizens of all 47 member states have a right of recourse to hold their Government accountable to the promises they have made by being signatories to the treaty.

Simply having an institution in place where arguments can be made and judgments pronounced is not enough.  That institution must have the ability to enforce the decisions it has made.  The Court is an unelected body and that gives it an independence and freedom that national Governments and Parliaments simply do not.  The United Kingdom has voluntarily agreed to submit to the jurisdiction of the ECtHR and as a result has to apply judgments made in relation to cases against it and take note of other judgments that may impact upon the UK Government’s policy.  If the Government was simply able to ignore the judgments it did not agree with then the institution would be entirely useless and result in the situation of a country signing up to a meaningless document.

The United Kingdom is an international proponent for Human Rights and advocates less democratic states to adopt many of the ideals set out within the ECHR.  The United Kingdom, along with others, has been very vocal about Human Rights abuses in countries such as North Korea, Iraq, China and Saudi Arabia.  To pull out of such a prominent international treaty on Human Rights while advocating the adoption of the very ideals set out in that convention by other countries would seem odd, not to mention the diplomatic headache it would create.  The United Kingdom would come under pressure from its European allies, all of whom are signatories to the ECHR.  However, these reasons are not the ones that we should be focusing on when defending our membership of the institution that is the ECtHR and being a signatory to the ECHR.

When defending the ECHR it must be remembered exactly where its roots lie, not one of us in this country is ignorant of the horrors of the Nazi regime in the 1930s and 1940s.  The Holocaust is taught to every single pupil to some degree in our schools prior to their leaving.  The atrocities perpetrated by the Nazi regime lead by Adolf Hitler and uncovered in the post war period and trials at Nuremberg shocked to the core those who had not experienced it.  The stories from those who lived in those areas and experienced the terror are truly shocking and hearing them should make anyone with any human decency want to do all they can to prevent such atrocities happening again.  It is here where we find the routes of the ECHR.

In the United Kingdom we have suffered the largest assault on our civil liberties and fundamental democratic rights and freedoms since the Second World War.  The rights and freedoms contained within the ECHR and enshrined into domestic law by the HRA are the very the UK went to war in 1939 to protect. It is important that we are not cavalier in the way we treat and view these rights and freedoms.

It would be possible to withdraw from the ECHR and have our own domestic legislation setting out what our rights and freedoms are.  However, there is a significant problem in this.  Currently, if the Government is defeated in the Supreme Court on a Human Rights issue it has no real choice other than to carefully consider the legislation in question and seek to pass an alternative.  Without the International element to Human Rights the United Kingdom’s constitutional arrangement would mean that there is nothing at all to prevent the Government simply ignoring the fundamental freedoms and rights guaranteed.  It is always open to the United Kingdom to withdraw from the ECHR and go down this route, but the accountability comes not only from the ECtHR, but the United Kingdom’s allies.  The diplomatic situation that would be created by withdrawing from the ECHR is one that no Government would want to face, especially one such as the United Kingdom which is so very loud on matters of Human Rights in relation to other countries.  It is these combined factors that keep not only the United Kingdom accountable, but the other nations who have signed up to this treaty.  It is the combined force of the other member states and the ECtHR that helps to ensure that a situation similar to that seen develop pre 1945 from happening again.

Not one international treaty is without some form of institution monitoring compliance.  Some of these institutions comprise unelected officials (e.g. The European Court of Justice, The European Court of Human Rights and The International Criminal Court) while others comprise elected officials from the member states (e.g. The United Nations Security Council and elements of the European Union) and some are directly elected by the people within the member states (e.g. The European Parliament).  The nature of the institution dictates the form it must take. For example, a court which is to consider disputes between a State and its citizens should not be one made of political appointees or officials elected by the citizens. Such an institution has to maintain its independence from the parties who will be appearing before it if it has to have any credibility.

The role in which the media plays in informing the public and by extension forming public opinion is one that I have covered on a number of occasions before on this blog and so I do not intend to discuss it in this blog post, partly because I would simply be repeating myself and partly because this is already a rather lengthy blog post.  I will however say this: the European Convention protects each and every individual within the 47 member states who have signed it, it can and is utilised by ordinary people out with the context of criminal matters.  It is not and never has been a document protecting criminals and the decisions made based on the ECHR affect every single person in the United Kingdom in some way.  The protections won in previous cases are available to anyone who should ever need them.

Should the UK withdraw from the ECHR?  The simple answer is No.  The ECHR and the ECtHR are essential elements of our lives, our judicial system and our politics.  Their existence is essential, along with the collective responsibility of the member states, to ensuring a repeat of the terror experienced across much of Europe in the 1930s and 1940s does not occur again.

Civil Liberties, Human Rights, Legal System, Politics

A UK Bill of Rights?

The Prime Minister has been a prominent proponent of repealing the Human Rights Act 1998 and replacing it with a British Bill of Rights.  This has won approval from many within the wider society and more pertinent to him the grassroots of his own party.  Such a move could be problematic for their partners in the Government who are well known supporters of the Human Rights Act.

The Human Rights Act 1998 was introduced by Tony Blair’s Government in his first term as Prime Minister and was heralded as a huge step forward in legal history.  The Act fully came into force in October 2000, but cases had come before the courts in Scotland under the Human Rights Act due to sections of the Scotland Act 1998 forcing Scottish Ministers to act in a way that is compatible with the legislation.

There have been some very high profile cases brought under the legislation such as slopping out and access to solicitors while in police custody.  Some have caused public outrage as being unpopular and has lead to sections of the population calling for its abolition and viewing it as something that protects the criminal and forgets about the victim.  The less contentious decisions don’t often reach the wider media which has resulted in a very one sided and rather biased view of the effect of the Human Rights Act.  Decisions that lack a contentious element aren’t headline news and this would go some way to explaining the biased reporting of the Human Rights Act, but doesn’t excuse it.  As the main source of information for the public the media is somewhat bound to given an accurate picture of the things they report, but inevitably editorial bias and the desire to sell as many papers, have the largest share of the viewing figures and such like get in the way and prevent sensible and accurate reporting.

We have seen some blatant misreporting of Human Rights decisions.  One example that comes to mind was the decision not to deport the individual convicted for murder Philip Lawrence.  The UK Human Rights Blog ran by the Barristers at 1 Crown Office Row published a very good article on the misreporting of this case.  The article they wrote rightly pointed out that this was not a decision based on Human Rights.  While the case had a Human Rights element to it; it was a secondary element to the case.  The main thrust of the argument was the EU freedom of movement principles.   Had the Human Rights arguments failed the outcome would not have been any different as the Freedom of Movement rules of the European Union would still have been successful resulting in the same outcome.

It is this kind of blatant false reporting and misrepresentation by the UK media that has somewhat contributed to the wider public view of the Human Rights Act.  It’s not the sole reason, but the other main reasons are largely down to editorial decisions taken by the UK media.  In my view the UK media have a lot of questions to answer in relation to much of their correspondence on legal matters, including Human Rights matters.

This year the UK Government will setup a commission to look at the issue of Human Rights in the UK and specifically whether to repeal the Human Rights Act and replace it with a UK Bill of Rights.  I see no sense in this other than to appease the right wing media and many within the Conservative Party.  Such a commission will come at public expense at a time where we are suffering huge budget deficits and significant cuts to public expenditure.  What will the commission achieve?

The Human Rights Act 1998 gives domestic effect to important elements of the European Convention on Human Rights and Fundamental Freedoms 1950.  This is a treaty that the United Kingdom is a signatory to and as such has certain obligations under the treaty.  Any Bill of Rights introduced by the UK Coalition Government will not change these elements, and indeed, will have to include the same aspects as included within the current legislation.  Essentially it will be largely the same piece of legislation with a different name.  Governments should never be wasting public money with such pointless exercises, but at a time where the UK Government is swinging the axe over Government spending it seems odd that they would pursue a policy that they must be well aware will result in no real change.

Simply repealing an Act of Parliament and replacing it with another almost identical piece of legislation will not change things in any great way.  It’s unlikely to change the way in which the UK Courts interpret the issue of Rights in the United Kingdom as they often look to the judgments of the European Court of Human Rights when coming to their decisions.

I really do find this as being a pointless exercise in the pursuit of popularity at a time when money is tight.  The UK Government often level allegations of seeking headlines that would make them popular against the previous Administration and have often said they are about making real decisions for the long-term benefit of the whole country.  I fail to see how such a decision would be anything other than seeking popularity within certain sections of the UK media and their readerships.

The Ministry of Justice offered no comment on the allegations levelled against the Government within this article.