Raptor Persecutions & Prosecutions Take 2: How investigatory powers legislation read with human rights requirements might explain recent COPFS decision-making

This post is by Dr Phil Glover.

As an academic opposed to wildlife crime and with no ‘huntin/shootin/fishin’ interests (or indeed abilities) to declare, I have penned this article as a follow up response to my colleague Professor Peter Duff’s recent contribution to this blog relating to the correctness of recent Crown Office and Procurator Fiscal Service (COPFS) decisions not to prosecute in some recent wildlife crime cases. His piece stimulated robust debate on the emotive issue of wildlife crime and the admissibility of evidence pertaining to it, an issue that I wholeheartedly agree is crying out for greater legal (and legislative) certainty in Scotland and the UK. A number of the comments posted on the Raptor Persecution Scotland blog following Professor Duff’s article reflect complex research issues currently vexing me and on which I am seeking comments. As the academic responsible for Professor Duff’s references to the Regulation of Investigatory Powers (Scotland) Act 2000 (RIP(S)A) and the Data Protection Act 1998 (DPA) I feel it is necessary to expand upon them in light of some of the comments they have received.

The comments reflected questions I believe the COPFS would have to address in their decision-making. Some of them were partially (but in my view incompletely) addressed in a very helpful COPFS letter (PDF) of 30 May 2017 to Graeme Dey MSP (in his capacity as Convener of the Scottish Parliament’s Environment, Climate Change and Land Reform Committee). This article provides my arguably fuller answers and a suggestion or two as to how the current impasse or inconsistency in achieving successful prosecutions might be achieved.

Assuming no disingenuousness as to their purposes on the part of the Royal Society for the Protection of Birds (RSPB), it appears settled that its conduct in the controversial cases involved covertly placing and subsequently monitoring video-recording (data capturing) equipment adjacent to vulnerable wildlife sites for the (laudable) purpose (sole or otherwise) of processing the recorded film so as to provide Police Scotland and the COPFS with evidence identifying persons committing crimes against wildlife. On my admittedly skim reading of the cases referred to it appears that it is the RSPB, rather than Police Scotland, who undertakes the covert investigatory conduct. If not, disregard much of the analysis that now flows.

What are the legal implications of the RSPB’s conduct?

The legal implications of the RSPB’s conduct depend on the interpretation of two distinct legislative regimes that arguably apply.

The older, clearer, obviously applicable regime is that within the DPA. My PhD thesis concluded, inter alia, that virtually all forms of covert surveillance as commonly understood can be deconstructed to be reconceptualised as covert investigative data acquisition. Data acquisition and subsequent processing includes video recording of camera images and their subsequent use-  (Peck v United Kingdom, (2003) 36 EHRR 41 at [59] ) An excellent synopsis of the applicability of the DPA 1998 as regards the acquisition and processing of video recorded personal data in Scots law can be found in the recent case of Anthony & Deborah Woolley v Nahid Akbar or Akram [2017] SC Edin 7 (at paragraphs 72-74). For present purposes however, evidence suggests the RSPB are self-declared registered data controllers and data processors within the meaning of section 1 of the DPA insofar as they manage members’ personal data (defined in Section 1 of the DPA as … data which relate to a living individual who can be identified—(a) from those data, or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller. Their role as controllers mandates them (DPA, s4(4)) to comply with all the data protection principles (DPA, Schedules 1-4 according to context).

Initial inspection suggests that the first principle has the most relevance:

(1) Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless

(a) at least one of the conditions in Schedule 2 is met, and (b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.

In the context of the present analysis, the relevant Schedule 2 conditions are:

  • that the subject of the personal data has consented to the processing (not realistic in investigative covert information acquisition) OR
  • the data processing is necessary for the administration of justice OR
  • for the exercise of any functions of the Crown, a Minister of the Crown or a government department, OR
  • for the exercise of any other functions of a public nature exercised in the public interest by any person.

Schedule 3(6) additionally provides that sensitive personal data may be processed where such processing is necessary for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), and 3(7) replicates the permissions in Schedule 2 regarding administration of justice etc.

On this reading, the registered data controller (here the RSPB) can lawfully obtain and process personal data tending to identify a living wildlife offender for these purposes under the DPA and its principles. Added weight to this assertion can be given by the fact that section 29 of the DPA provides, inter alia, that personal data processed for (a) the prevention or detection of crime or (b) the apprehension or prosecution of offenders are exempt from the first data protection principle (except to the extent to which it requires compliance with the conditions in Schedules 2 and 3).

If it is lawful, necessary and proportionate to the legitimate aim pursued (prevention of wildlife crime)  it is also ECHR compliant. Within the DPA regime therefore, all looks rosy for evidence of wildlife crime obtained and processed by the RSPB using covert investigative technical measures.

My view however, is that a second, more modern legal regime applies, namely that within the RIP(S)A. (HOLD THAT ‘PUBLIC AUTHORITY’ ARGUMENT, I WILL DEAL WITH IT!) The RSPB’s conduct directly equates to ‘directed surveillance’ as defined in RIP(S)A 2000, s1(2), namely covert, non-intrusive surveillance undertaken for the purposes of a specific operation or a specific investigation in such a manner as is likely to result in the obtaining of private information about a person. The same section (at s1(8)(a)) additionally provides that ‘surveillance is covert if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place’. Meanwhile, ‘Private information in relation to a person, includes any information relating to the person’s private or family life’ (s1(9).

The term ‘equates to’ is not chosen lightly. This is because the RIP(S)A further provides that conduct amounting to directed surveillance shall be ‘lawful for all purposes if authorised’ (s5(1)) and that such an authorisation can only be issued by a ‘designated person’ (s6) within a ‘relevant public authority’ (s8). Inspection of s8 reveals that ‘relevant public authority’ does not include the RSPB. The RIP(S)A definitions for conduct amounting to covert directed (and intrusive) surveillance clearly state that such definitions apply only for the purposes of that Act (s1). Covert investigative conduct outside the RIP(S)A is not ‘surveillance’ within the meaning of the Act.

One initial view therefore might be that the RSPB’s covert investigative conduct as a ‘non-public authority’ takes place outside any statutory regime and therefore outside any European Convention on Human Rights (ECHR) safeguards. This view would mean that all the purportedly ECHR-compliant provisions of the RIP(S)A 2000 vis a vis ‘directed surveillance’ do not apply and are non-enforceable against the RSPB, meaning that their acquisition of private information about persons via covert video recording (in these cases the images enabling the identification of the alleged offenders) did not require to be authorised and would ultimately be admissible under the Scots law of evidence as no more than ‘irregularly’ obtained. This cannot in my view be correct, and I infer from their reference to ‘not authorised’ in their letter that the COPFS agree with me. Here’s why.

Strict adherence to this view creates the anomaly, indeed absurdity, that if it were Police Scotland covertly placing the video data-capturing equipment in identical circumstances to the RSPB for the same purpose (prevention of crime), an authorisation under s6 of the RIP(S)A, issuable only after strict considerations of the investigation or operation’s necessity and proportionality would be required, with the very real risk that if not issued, the evidence would be rendered unlawfully obtained and therefore inadmissible. Police Scotland have not been immune to severe censure for failure to adhere to RIP(S)A’s authorisation matrix (David Moran & Others v Police Scotland, IPT/15/602/CH, IPT/15/603 CH, IPT/15/613/CH, IPT/16/263/CH, IPT/16/264/CH, IPT/16/387/CH) It seems unthinkable therefore, that even before reading the Human Rights Act 1998 alongside the RIP(S)A, evidence obtained via covert investigative activity outside the RIP(S)A mechanism and safeguards would be considered lawfully acquired. If it were, Police Scotland would simply be able to ‘contract out’ of their ECHR-compliance obligations regarding covert surveillance by allowing non-State actors such as the RSPB to undertake it for them when it suited.

European Human Rights Expectations

Unsurprisingly, the European Court of Human Rights (ECtHR) has made decisions that acknowledge this potential circumvention. Simon McKay, author of Covert Policing Law and Practice (OUP, 2011) outlines in Chapter 10 (Private Surveillance) the decisions in MM v The Netherlands (2004) 39 EHRR 19 and Van Vondel v The Netherlands (Application No 38258/03, 25 January 2008) holding that investigating authorities cannot evade their ECHR responsibilities by the use of evidence obtained by non-State or ‘private’ agents. Crucially, in MM the police and the public prosecutor ‘made a crucial contribution’ to the eventual criminal proceedings, thus engaging the responsibility of the State. It is highly likely that the COPFS, as Scotland’s public prosecutor, would be held as being similarly engaged and therefore responsible for flaws in the human rights compliance of surveillance undertaken outside the RIP(S)A. It is this consideration of the implicit failure of the RSPB to adhere to the RIP(S)A, by seeking authorisation from Police Scotland to undertake ‘directed surveillance’ on an agency basis, that may have influenced the COPFS decision not to prosecute in the recent cases referred to. In my view the COPFS would be correct to consider this, as it seems unacceptable that public authorities are bound by the RIP(S)A compliance safeguards whilst bodies such as the RSPB remain currently exempt.

In the absence of a rapid amendment to the RIP(S)A, a simple solution to this problem, if no one has already thought of it, would be for the RSPB to engage Police Scotland in the practical implementation of covert investigative conduct, with Police Scotland taking all the relevant requisite steps under the RIP(S)A to ensure ECHR compliance and thus the lawfulness of the conduct. This might involve no more than the secondment of a Police Scotland operative to ‘supervise’ the RSPB investigation teams, but with the necessary RIP(S)A authorisations in place.

When considering the notion of amending legislation, a question arises as to whether the RSPB could or should be added to the ‘relevant public authority’ taxonomy in the RIP(S)A, s8(3) so as to enable them to authorise their conduct in ECHR-compliant terms. Regrettably, due to my favourite bugbear (legislative drafting), this could be problematic: section 8(4) provides that the Scottish Ministers may by order amend section 8(3) by adding or removing a ‘public authority’, but there is no provision for adding entities such as the RSPB that fall outside the ‘public authority’ definition.

At this point it can be noted that nailing down a set definition for ‘public authority’ appears beyond the UK and Scottish legislatures and is purpose-dependent.

The RSPB does not constitute a public authority for the purposes of the Freedom of Information (Scotland) Act 2002, Schedule 1, but can be designated as such under that Act (s4 and s5(2)). This point is worth expanding upon: s4 empowers the Scottish Ministers to amend Schedule 1 by adding or removing particular ‘bodies’, with s5(2) further empowering them to ‘designate as a Scottish public authority for the purposes of this Act any person mentioned in subsection (2) who (a) is neither for the time being listed in schedule 1 nor capable of being added to that schedule by order under section 4(1); and (b) is neither a public body nor the holder of any public office’. Subsection 2 provides that such persons include, inter alia, those who ‘appear to the Scottish Ministers to exercise functions of a public nature’. It seems strange that legislative drafting has enabled this here, but not in the RIP(S)A.

A further argument for applying the RIP(S)A – Domestic Human Rights Expectations

The arguably overarching Human Rights Act 1998 mandates: that courts and tribunals must take into account, inter alia, any judgment, decision, declaration or advisory opinion of the European Court of Human Rights (s2); that so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights (s3) and that “public authority” includes—(a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature (s6(3)(b)).

The first point therefore is that the RIP(S)A must be read and given effect in a way that is compatible with the Article 6 right to a fair trial and the presumption of innocence and the Article 8 right to respect for private and family life, home and correspondence. One possible outcome of this is that the RIP(S)A cannot be read in such a way as to render directed surveillance by bodies not designated as relevant public authorities and that a section 4 declaration of incompatibility might be required. Another is that section 8 could be ‘read down’ to include all bodies exercising functions of a public nature.

Examples abound of jurisprudence and associated academic commentary on what constitutes ‘functions of a public nature’. To my knowledge, and subject to the caveat that airing a hasty academic legal opinion can leave gaps in analysis, covert investigative information acquisition equating to covert directed surveillance under the RIP(S)A conducted by a registered charity has not yet been the subject of domestic or European legal challenge. Given the Strasbourg jurisprudence already mentioned however, I am of the view that such conduct would be construed as ‘of a public nature’ and would render the RSPB a ‘public authority’ for RIP(S)A purposes. Put another way, I believe that the RIP(S)A would be ‘read down’ to incorporate conduct amounting to covert directed surveillance on the part of any body undertaking conduct amounting to covert investigative information acquisition that assists the State (in this case the COPFS) in bringing a prosecution. This would undoubtedly require the RSPB and similar bodies to seek an authorisation under the RIP(S)A by involving Police Scotland as outlined previously.

Conclusions

What we are left with then, is that the COPFS, when weighing up whether or not to lead evidence comprising recorded video data acquired covertly for investigative purposes by an organisation not currently recognised in law as a public authority, have to consider the effect of two distinct regimes. The first, ‘older’ regime is that within the DPA, in which the RSPB as a lawful registered data controller, processes data acquired covertly for a purpose exempted under s29 from a requirement to be fair and lawful and which will therefore be processed lawfully in the course of prospective legal proceedings and appears admissible. The second, ‘newer’ regime is that framed by an inadequately drafted RIP(S)A read, as it must now be read, with the relevant provisions of the Human Rights Act 1998. On this reading, the RSPB cannot currently lawfully undertake conduct amounting to lawful directed surveillance.

Having revisited the limited available published information surrounding the Colin Marshall case (heard in 2006), I am of the view that the Sheriff erred in admitting evidence of what may have started out as a nest surveillance, but what ended up as being directed surveillance of Marshall over 3 nights in 2003. There is no indication that the RIP(S)A was even considered. The second case, that of Mutch, similarly involves no recorded discussion of the RIP(S)A or the Sheriff’s view on its applicability. It is my respectful view that the Sheriff’s decision here was courageous and taken for public policy reasons, but that it either ignored or circumvented the applicable law (the RIP(S)A) albeit for laudable reasons. It is a disingenuous and ultimately untenable position to assert that an ‘RSPB investigation team’ (their description, not mine) monitors nests as part of a survey and captures/processes video evidence of criminality as a ‘by-product’ of that survey. It is my belief that the COPFS feel the same and are therefore unfortunately bound to discount video recorded evidence if it has been obtained by investigation teams not listed as public authorities in RIP(S)A s8. Consequently, in my view, the answer lies in ‘contracting’ directed surveillance of vulnerable sites back to Police Scotland, seconding Police Scotland personnel to supervise RSPB investigation teams, or in the longer term amending the RIP(S)A after suitable public consultation.

It is understandable that champions for wildlife protection will feel frustrated at inconsistencies in the bringing of criminal proceedings and that courts represent the best and most transparent arbiter on matters of admissibility. However it is not the role or function of Scottish courts to decide whether or not to prosecute. That thankfully wholly independent decision is for COPFS. Having weighed the evidence that has been obtained outside the requirements for lawful, authorised, directed surveillance conduct and therefore outside the guaranteed ECHR compliance, the COPFS are probably right to err on the side of caution and avoid risking widespread public censure for abuse of process. Bodies such as the RSPB, in the short-term absence of them being added to the RIP(S)A mechanisms, should engage with Police Scotland to ensure lawful RIP(S)A and Human Rights Act 1998 compliance. In the mid- to longer term, those in government entrusted with wildlife protection should be lobbying vigorously to have the RIP(S)A amended to incorporate the RSPB, in the same manner as SEPA. Wildlife crime is too serious not be prosecuted, but the overarching requirement under ECHR Article 6 that proceedings be fair mandates that evidence acquisition must be lawful, on a legal basis, necessary and proportionate.

Legal Analysis: Factually Analysing Theresa’s Tough Talk on Terrorism, ‘Disruptive and Investigatory Powers’ and Human Rights.

This post is by Dr Phil Glover.

The recent tragic upsurge in terrorist activity in England has been accompanied by significant media and social media hyperbole. Stripping away the regrettable politicking and naked electioneering underpinning this is part of the exasperated academic lawyer’s job.

This short piece outlines and comments on current UK law as it stands surrounding one particular Theresa May statement made shortly after the dreadful terrorist murders in Manchester and London:

‘I’m clear: if human rights laws get in the way of tackling extremism and terrorism, we will change those laws to keep British people safe.’

Examples of the hyperbole that followed include the Guardian headline May: I’ll rip up human rights laws that impede new terror legislation and the Express headline I’ll ditch human rights laws to KICK OUT jihadis, says Theresa May in fight against terror. Election fervour meant the Prime Minister’s ‘if’ relating to ‘human rights laws’ became a manifesto-esque commitment to rip them up or ditch them.

We dull law scholars (I’m speaking for myself) prefer facts proven by evidence. A fundamental rule of evidence is that oral evidence tendered by the original source carries more weight than hearsay tendered by third parties. Hence the reason Theresa’s original statement is reprinted above. What she said was that ‘if human rights laws get in the way…’ not that they do.

For legal analysis purposes however (that’s what we do at Aberdeen), we firstly ask, ‘What laws tackle extremism and terrorism?’ We then ask, ‘What did Theresa May mean by ‘human rights laws?’ The legal question can then be framed as, ‘Do human rights laws get in the way of counter-extremism and counter-terrorism laws?’ A final question might then be, ‘Can Theresa May change human rights laws?

UK law ‘tackling extremism and terrorism’

If students were asked in an examination question along the lines of, ‘Describe the UK legislation that tackles extremism and counter-terrorism’, a good answer would be lengthy. Successive UK Governments since at least the era of IRA terrorism and the pre-internet incitement to hatred and violence era have generally been voted in on the back of tough political rhetoric about tackling these issues. This has seen an exponential mutation in the legislative frameworks regulating counter-terrorism, surveillance/information acquisition and prejudice-crime prevention. An examination-standard ‘statute by statute’ exposition is inappropriate for this forum, but thankfully the recent useful work of ‘jargonistas’ means that these huge State national security resources can be summarised as ‘disruptive and investigatory powers’ and ‘hate crime’ measures. The debatably equally useful ‘Transparency’ agenda also means that summaries of the relevant frameworks can be found in the Home Office, Disruptive and Investigatory Powers Transparency Report 2017.

It is somewhat surprising to law scholars to read of even an inference from a long-serving Home Secretary and latterly Prime Minister that human rights laws might ‘get in the way’ of terrorism legislation. Such legislation has largely been subject to robust independent review since 1978 and this has been enshrined in statute since 2005.

Although not explicitly tasked with assessing the tensions between ECHR considerations and counter-terrorism provisions, it is unthinkable that any of the senior legal counsel appointed to the role thus far has not advised successive governments and Home Office personnel as to where the correct balance requires to be struck. No independent reviewer has ever received public criticism from any government of any persuasion in this regard.

Indeed, such was the reputation for independence and quality of advice provided by David Anderson QC (Independent Reviewer between 2011 and 2017) that he and his team were additionally asked to review (and now continue to review on a statutory basis) UK surveillance legislation following the 2013 Edward Snowden disclosures. His 2015 report ‘A Question of Trust’ was universally acclaimed and informed the drafting of the Investigatory Powers Act 2016 (IPA). There is no little irony in the fact that this Act constituted a ‘transparent’ consolidation, expansion and entrenchment of all the previously disparate and occasionally secret state surveillance powers that Snowden et al sought to roll back. There is further irony in the fact that the IPA 2016 (heartily sponsored and endorsed by Theresa May) faces a significant legal challenge on the basis that it disproportionately infringes ECHR rights, yet may now constitute part of the counter extremism and counter-terrorism framework she feels is constrained by human rights considerations! This may be because of the nascent (and somewhat ill-informed) policy of attaching blame for terrorism and extremism on internet service providers, despite the existence of huge internet surveillance powers in the IPA 2016 and its inherent compelled compliance requirements placed on those companies controlling communications infrastructure.

Counter-terrorism and extremism legislation is reinforced by CONTEST, the UK Government Counter-terrorism Strategy (available here).  It is extremely difficult to see how, in legal terms, any aspect of UK human rights legislation impedes this use of ‘soft power’.

UK ‘Human Rights laws’

Law students at Aberdeen soon become au fait with the factual reality of the UK being a signatory to the 1950 European Convention on Human Rights [ECHR] which, since October 2000, has legal effect in the UK via the Human Rights Act 1998 (HRA). This requires that ‘so far as it is possible to do so, [UK] primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights’. Where it cannot be so read, declarations of incompatibility may be made.

This generally means that UK residents can potentially rely on the UK courts to protect their individual rights, and where disruptive and investigatory powers (discussed above) such as the infamous, post 9/11, Anti-Terrorism, Crime And Security Act 2001 (ATCASA) section 23 (powers enabling indefinite detention of terrorist suspects) are brought to judicial review, as in A & Others v Home Secretary (2004), UK courts have not held back from doing so.

Yet sections 3 and 4 of the Human Rights Act are open to potential criticism in that they deal with a retrospective approach to ensuring that UK law, as enacted, complies with the ECHR. Indeed the example above meant that the ATCASA 2001 had been in place for three years before the House of Lords declared s23 incompatible. Politicians behind the enactment of such powers (like Mrs May) might therefore feel justified in criticising the HRA for enabling the retrospective undermining of their parliamentary sovereignty and legislative scrutiny (other public law student favourites) as part of the separation of powers.

Closer scrutiny of the HRA however, shows that it also places a prospective approach to Parliamentary procedure, in that section 19 mandates (without exception) a Minister of the Crown in charge of a Bill passing through both Houses of Parliament, before second reading of the Bill, to (a) make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights (“a statement of compatibility”); or (b) make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill.

On the surface therefore, given Theresa May’s roles in successive Governments since 2010, she has presided over the enactment of all counter terrorism and counter extremism legislation in that period, all of which has been signed off as human rights compliant in accordance with the HRA 1998, s19. Only surveillance legislation has been subject to significant retrospective human rights challenges from the privacy and civil libertarian lobby and this on the basis that, despite her Government signing the pre-Act Bill off as ECHR compatible and it receiving Royal Assent, the final Act infringes ECHR rights such as Article 8. There has never been a challenge on the reverse basis, i.e. that human rights considerations actually impede the efficacy of an Act of Parliament.

I am not alone in finding no evidence whatsoever that human rights laws in any way get in the way of UK measures (statutory or otherwise) to counter extremism or terrorism. Given the strong chance of success of a legal challenge seeking to roll back some of the powers within the IPA 2016 on the basis of EU jurisprudence to date, only a fool would consider altering the single human rights law we have (the HRA 1998) to somehow ensure that counter extremism or counter terrorism powers can bite harder. Brexit means Brexit, but the UK remains in the ECHR. Mrs May appears no fool in the eyes of academic scrutiny, but although her remarks quoted herein may undoubtedly have been embellished by others for their own purposes, she may yet come to feel somewhat foolish for having made them in the first place. Politicians attack the laws they themselves drafted and enacted at their peril.

Burkini Ban: Violating both facets of religious freedom

This blog post is by the undergraduate LLB (Hons) candidate Shanardra Fadhilah. It is based on the presentation she gave at the recent Lawyers Without Borders conference hosted at the University of Aberdeen, which she was selected to give after winning a competition amongst her fellow students.

Take a deep breath and focus on your thoughts. At your core, what guides your actions? Your moral compass? Your conscience? The values instilled in you since young? For a lot of people these all fall under one umbrella – religion. It serves as a compass for the right and wrong, a conscience to guide them through the grey area and a set of values to uphold throughout life.

Religion continues to be fundamentally important in society. Hence why it is still maintained as a human right – a right one has for simply being human. As a human right, freedom of religion is enshrined in various international instruments, including Article 18 of the Universal Declaration of Human Rights and the two international human rights covenants (on civil and political rights and economic, social and cultural rights) as well as Article 9 of the European Convention of Human Rights.

In the mentioned instruments, freedom of religion is captured as a 2-dimensional right that may be exercised alone and in community with others. The first aspect speaks of the right to freely choose one’s own religion. This is absolute in nature and cannot be circumvented. The second aspect is the right to manifest religion, which on the other hand can be limited. Even so, rule of law requires the limitations be necessary and legitimate. The main reasoning for the constraint is because the right to manifest religion bleeds into the public sphere. In order to safeguard the rights and freedoms of others, this limitation is needed so that human rights do not conflict with each other.

But as with most things, a simple categorical division on paper does not accurately reflect the reality. Religion is not something that is only practiced in private or can be separated from the public sphere. This is reflected in the second strand of religious freedom: the right to manifest religion. However, the fundamental freedom to choose one’s religion is intrinsically connected with the right to manifest it. A person chooses their religion because they agree with its teachings and want to practice it. Thus, it follows that the right to choose one’s religion is only as useful as its right to manifest it.

Religious manifestation includes religious expression, which is where religious clothing stems from. This brings us to the issue at hand: the burkini ban in France.

In 2016, mayors in about 30 French coastal resorts banned the burkini. Although not expressly stated, the clothing banned is indicative of a burkini and mainly target female Muslims who wear them in beaches. In late August of last year, the Council of State held that the ban in one of the towns was a serious and manifestly illegal attack on fundamental freedoms. Local authorities could only curb individual freedoms if there was a “proven risk” to public order. Significantly, it was ruled that, “the emotion and the concerns arising from terrorist attacks” was not legally sufficient to justify a ban.

While this ruling may set a precedent for the other French towns, which have implemented the burkini ban, after the ruling some mayors have said they would refuse to lift the decree. There are several arguments put forward in favour of the ban. The burkini is allegedly an affirmation of political Islam in the public space and incompatible with the French concept of secularism. Furthermore, it is argued that the ban will allow for social and cultural integration; ultimately, serving to empower women.

A similar development is the burqa or face veil ban in France that was introduced in 2010. It makes it illegal for a person to conceal their face in a public place. This has also been criticised as targeting Muslim women. In the case SAS v France (reported at (2015) 60 EHRR 11) the European Court of Human Rights upheld the ban and accepted that the French are seeking to protect social interaction between people.

But, at a closer glance, this argument is actually counterintuitive. How does criminalizing a deeply significant form of religious clothing serve to improve social interaction when it will only further segregate them from society as they opt not to go to public spaces?

Furthermore, note that the ‘margin of appreciation’ allowed for the qualified right to manifest religion displays that the different national contexts require for varying implementation of the right. If we extract this line of reasoning – we can apply it to the conception of human rights in general.

Why do we so easily ignore the fact that there are various frameworks for human rights and favour the ‘universal’ conception? Setting aside pragmatism for a moment, it seems strange that Court allows for a wide margin of appreciation for enforcement of the right to manifest religion but no consideration is given to the different cultural conceptions of human rights. This is significant because the different conceptions result in different understandings of human rights. It is connected to the degree of importance attached to the right to religious manifestation and expression by various faiths that is not reflected in most international human rights documents.

These stances against specific styles of dressing are not at all uncommon. When you look at the development of society, there were various cases when the introduction of novel fashion trends have been met with opposition as it does not fall in line with the societal values of the time. But this current move in Western culture towards wearing as little clothing as possible being equated to the emancipation of women is misleading as empowerment actually comes from choicenot a certain style of dressing.

For Muslim women, it is the act of dressing modestly which reflects their choice to submit to Islam. This is the root for wearing the burkini. It is a cultural interpretation of modesty as mandated by religion. So when this dress is banned – the consequences are not only literal but transcends to the constraint of the fundamental exercise of the religion. It is the criminalisation of being a Muslim woman who wants to go to the beach but also maintain her modesty.

Essentially, here the State is enforcing how strictly a woman can follow their religious teachings. The state has criminalized a form of religious expression and in doing so constrained the overall religious freedom in general. Religious clothing is highly important to Muslim women who choose to manifest modesty in such form. The burkini ban was enacted to respond to the terrorist threat in France. But placing the blame for such terrorist attacks on the whole Muslim community, especially the female Muslims does not make sense. Human rights should not be curbed discriminatorily – let alone as a method to punish a large group of people for the actions of a few.

Syrian Refugees in Europe: what’s happening?

The following is the text of remarks made by our Dr Justin Borg-Barthet at a panel discussion organised by the Aberdeen University Yad’am Society on 6 February 2017.

Introductory remarks

To begin with, it is worth considering why we in Europe should be concerned about the Syrian refugee crisis.  Syria, after all, is not a European state and Syrians do not traditionally consider Europe to be their most immediate cultural hinterland.  It is arguable, therefore, that Syria and Syrian refugees are not European problems.

But let’s be clear that since the end of the Second World War, at least, we have all embraced the principle of a common humanity.  This is not merely a political statement, but is a principle entrenched in international law – like the 1951 Refugee Convention – and in the human rights law of the European Union and the European Convention on Human Rights (ECHR).

In the spirit of a broader humanity, I will not confine my comments to matters solely pertaining to the Syrian crisis.  That crisis is simply the most recent in a series of developments which have seen the European Union fall short of its humanitarian and human rights obligations in respect of refugees and asylum seekers.  It illustrates, in stark terms, an ongoing systematic and systemic problem in the EU’s relations with its neighbourhood.

In these brief remarks, I will address two main points.  First, I wish to highlight a failure to comply with obligations.  Secondly, I will consider briefly the constitutional policy implications of this failure, and make modest recommendations about how the Union could seek to address persistent problems.

Humanitarian and human rights obligations

EU human rights law has come a long way since the first steps towards European integration in the 1950s.  This is most clearly seen in recent judgments of the Court of Justice of the European Union (CJEU) regarding relocation of asylum seekers.  In the NS case, Afghan asylum seekers in the UK were to be returned to Greece, which was their point of entry into the EU.  Under the Dublin Regulation, Greece was responsible for processing the asylum claim.  It was found, however, that the applicants’ right to be free from inhuman and degrading treatment would be at risk due to systemic problems in Greece.  It followed that the UK could not return the asylum seekers.

The decision of the CJEU is, of course, to be applauded.  It demonstrated a shift in emphasis from the rights of states to those of individuals.  However, that judgment did nothing to alter the facts on the ground for most asylum seekers in Europe.

Reception conditions

Greece, Italy and Malta are the main ports of entry for refugees and asylum seekers from Africa, the Middle East and further afield.  Each of those states has been found to be in breach of the European Convention on Human Rights due to their inadequate treatment of refugees (e.g. M S S v Belgium and Greece (2011) 53 EHRR 2; Aden Ahmed v Malta ECHR App No 55352/12 (23 July 2013); Hirsi Jamaa v Italy (2012) 55 EHRR 21).  In particular, reception conditions have been found to breach the prohibition of the right to liberty (due to forced detention) and, consequently, the prohibition of torture (due to the adverse effects of detention on mental health).

The problems in these three states are compounded by the fact that they bear the brunt of responsibility for dealing with migration to the EU.  Whatever lofty declarations are made in the north and west of Europe, and despite images of hundreds of people trekking across a continent, the fact remains that pressures are concentrated in a small number of member states, which brings us to another problem of so-called burden sharing.

Burden sharing

A number of EU member states have long argued that there should be a system of compulsory burden sharing.  In other words, the responsibility for hosting and processing asylum seekers should be shared between the Member States rather than being concentrated in border-states.  The Geneva Convention arguably requires burden sharing as a matter of international law.  EU law itself is founded on the principle of solidarity between states and people.

But still, wealthier states which are geographically insulated from the crisis have resisted compulsory burden sharing.  Instead, they initially accepted a voluntary system.  Latterly, a system of agreed relocation has been put into place, but the Member States have been very slow in taking any practical steps to ensure that pressures are distributed.

This is important to member states which face significant financial and social burdens.  And because of those burdens, it is also important to asylum seekers.  No member state is able single-handedly to accommodate and welcome the numbers that have been crossing the Mediterranean Sea.  In the absence of collective action, asylum seekers remain vulnerable to the inadequacies of ill-equipped states.

Relocation to third countries

Following repeated failures in seeking compulsory burden-sharing within Europe, southern EU member states have changed their strategies.  Rather than advocating relocation of asylum claimants within the EU, they have successfully argued for the externalisation of problems through so-called reception centres in Turkey and Libya.  An agreement with Turkey is now fully operative.

Of course, there is nothing wrong, in principle, with supporting Turkey in its own efforts to provide reception to migrants, or in discouraging dangerous sea-crossings.  But the fact is that, for all the failures of EU member states, the treatment of asylum seekers in Turkey and Libya leaves far more to be desired.

You may recall that I mentioned the judgment in NS earlier.  In that case, it was decided that Member States could not return migrants to other EU States if there were systemic problems in the destination state.

There is no logical reason why that principle should not be applied between the EU and third countries in the same manner as it is applied within the EU.  Fundamental rights, after all, bind the member states whether they are acting unilaterally or collectively.  The principle of non-return in the judgment in NS should preclude the return of asylum seekers to Turkey.  Yet, just last week, the informal council meeting in Malta concluded that the Turkey agreement should be replicated in Libya.  Far from questioning the strategy, the Member States are seeking instead to entrench and extend it to ever more questionable destinations.

Tellingly, humanitarian corridors were not addressed in the council conclusions, but were determined to be a matter for the future.  We will deal with that once we have secured the border.  Now where have we heard that before?

Constitutional observations

The refugee and migrant crises expose cracks in the institutional architecture of the European Union.  There has been a consistent failure to act according to constitutional principles due to the stranglehold that the member states hold over law and policy-making processes.  If they refuse to act, the Union’s principles are meaningless in practice.  While the EU rightly baulks at President Trump, its own record of treatment of refugees has not been pristine.

Of course, it is difficult for the Union and Member States to act when public opinion is unsupportive.  But let’s not forget that public opinion is divided.  It is far from unanimous in its opposition to migration.

And there is equally a great danger in failing to uphold and defend principles.  If constitutional principles are not upheld, this lends an air of legitimacy to the ideologies that are threatening the EU’s collective model itself.  By reducing the stranglehold of states, and focusing instead on representation of people and rights of people, the Union could ensure that collective action remains possible, and that it is given further effect in future.

In other words, far from the answer being less Europe; far from the answer being the dismantling of Schengen; and far from the answer being border fences between states; the answer is a more principled Europe – a more meaningful European Union that is capable of acting internationally in accordance with its founding principles.

Dr Borg-Barthet is the co-author (with Carole Lyons) of an analysis article in the 2016 Edinburgh Law Review. ‘The European Union Migration Crisis’ is currently the ‘Most Read’ article online.

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The poster for the recent event hosted by the Yad’am Society

Exploring and combining the Human Rights Act 1998, intellectual property and EU competition law – while we still can

This blog post is by Dr Abbe Brown, Reader.

The prospect of the UK leaving the EU has, as already explored elsewhere on this blog, significant legal implications. So too would the possible repeal of the Human Rights Act 1998, perhaps to be replaced by a Bill of Rights.  One implication relates to proposals I put forward in my 2012 monograph Access to Essential Innovation and Technology: Intellectual Property, Human Rights and Competition.

These three legal fields of intellectual property (“IP”), human rights and competition were combined in the book as they can be relevant to questions of access to technologies from different perspectives.

Taking access to medicines as an example:

  • IP encourages the developing of new medicines by conferring exclusive rights and the ability to charge licensing fees;
  • the right to life indicates that there should be access to medicines, without money being an obstacle; and
  • competition law, in its prohibition on abuse of a dominant position, objects to an IP owner having too much power.

It is of course possible for these three fields to co-exist and complement each other: IP develops medicines to further the right to life and rewards the activities of innovators, and the ultimate goal of both IP and competition has been argued to be to encourage innovation. Yet conflict is possible; and this can be entrenched by the fact that within the UK jurisdictions there are significant differences in the extent to which each field can be the base of an action.

The book developed a means of enabling these three legal fields to be combined in judicial decision making in the UK, to deliver greater access to technology while still respecting the contribution which IP can make to developing innovation. At the heart of the book’s proposals are firstly a Human Rights Emphasis, which is a framework for enabling courts to consider the wide range of human rights relevant to a dispute to establish what is meant by delivering decisions (in light of the Human Rights Act 1998 and also EU fundamental rights) which are “consistent with human rights”; and secondly there is a new, human rights influenced, approach to the “Euro-defence” (a term explored in this resource from the law firm Slaughter and may (PDF)) and the case law on when refusal to license IP could be an abuse of a dominant position.  These two approaches could lead to courts, in some cases, finding that what seemed to be IP infringement from a pure IP law perspective was not in fact so.  The book then went on to argue that this approach was consistent with UK’s responsibilities to IP owners under the European Convention on Human Rights, and also obligations to protect IP under TRIPS, the IP element of the World Trade Organization  (“WTO”) Agreement. As a result, the approach and the UK would not be vulnerable to challenge at the European Court of Human Rights and through WTO dispute settlement.

The book develops its arguments through several scenarios, across health, communications, and the environment, with a range of outcomes depending on the facts. The proposals have been well reviewed (and also termed “possibly heretical” (Stothers 2013)) and stimulated wide interest among lawyers and IP owners, notably at the Licensing Executive Society International Conference in 2011.

Looking forward it does seem possible that there will be some sort of a Bill of Rights and also be some sort of competition law framework in post-Brexit UK, yet  in these new regimes human rights and competition may not have their present special legal status that has enabled the societal objectives (other than short term reward of innovation) to prevail.

My ongoing work (including blog posts of 26 November 2015, 2 May 2016, and 26 July 2016) explores how the interaction between legal fields can be further developed, including by looking beyond the Human Rights Act 1998 and EU competition law. (This could be serendipitous, given the current political situation.)  For now, the arguments developed remain a valuable tool for experimentation by lawyers and activists who are faced with IP obstacles to using technologies to pursue important goals.

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