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.

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.

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

Expatriates Lose Supreme Court Bid for Right to Vote in EU Referendum

In this post Dr. Heather Green, Senior Lecturer, considers the law setting the franchise for the referendum on the UK’s membership of the European Union, which takes place on 23 June 2016.

Mrs Thatcher’s government was the first to legislate for expatriate voting rights, creating rules in the Representation of the People Act 1985 that permitted citizens overseas to continue to rely on their last UK electoral registration for up to 5 years after leaving for the purposes of voting in Parliamentary and European Parliamentary elections. The time period has since been varied: to 20 years in 1989; and then to 15 years in 2000. The European Union Referendum Act 2015, section 2 adopts this scheme. This was challenged in the courts by expatriates disenfranchised by the rule.

Harry Shindler, a 94 year old Second World War veteran, has lived in Italy since the 1980s. Jacquelyn MacLennan, a partner in a law firm in Brussels, has lived there since 1987. Both are British nationals, and neither holds another nationality. Their challenge was based on EU law, arguing that section 2 of the EU Referendum Act 2015 interfered with their rights to freedom of movement under EU law by effectively punishing them for choosing to exercise those rights for longer than the 15 years during which voting rights are enjoyed. The European Convention on Human Rights could not help their claim in this case, as the Convention right to free elections (found in Article 3, Protocol 1) does not extend to referendums. The Supreme Court confirmed this reading of Strasbourg doctrine in 2014, rejecting attempts to deploy it by prisoners disenfranchised in the Scottish independence referendum. (Strasbourg is where the European Court of Human Rights sits, so it is the decisions of that court that make up Strasbourg doctrine.)

Mr Shindler has conducted a long-running legal campaign to acquire the right to vote in UK elections. In 2013, he lost an earlier case before the European Court of Human Rights arguing that the 15 year time bar breached A3P1. The Court considered that it was within the margin of appreciation enjoyed by the UK to set this cut-off point as an approximate means of measuring the likely strength of the bond between expatriates and the UK. Case by case assessments of individuals’ links to the UK were not feasible. The Convention permits states to employ “bright-line” rules such as the 15 year time bar.

The EU Referendum Challenge

The first hurdle in this case relating to the impending EU referendum was to establish that EU law is engaged by the franchise law in the 2015 Act. In the Court of Appeal the government succeeded in its argument that it is not so engaged. Article 50 of the Treaty on European Union provides that “Any Member may decide to withdraw from the EU in accordance with its own constitutional requirements.” The Court of Appeal took the view that the 2015 Act forms part of those constitutional requirements, and as such the government was free to design the electorate for the referendum without considering the constraints imposed by EU law guarantees.

That would have been enough, but the court went on to consider the position if EU law was assumed to be engaged. the Court of Appeal endorsed the reasoning of the Divisional Court that the 15 year time bar did not interfere with free movement rights: the court did not accept that disenfranchisement in a one-off referendum was a factor likely to influence the decision to settle or remain in another EU state.

Aware of the difficulties of establishing the EU law argument, counsel for the expatriates included in the case put to the Court of Appeal the additional claim that voting is a common law constitutional right which judges have a duty to protect against statutory restrictions of the sort included in the 2015 Act. The Master of the Rolls dismissed this argument as ‘hopeless’ [para. 50], considering that the Supreme Court’s dicta on common law protections of the franchise in Moohan v Lord Advocate were confined to hypothesising about political abuses by a Parliament intent passing a statute effecting mass disenfranchisements. There was nothing so contrary to principles of democracy in section 2 of the 2015 Act.

The UK Supreme Court

The case, reported as R (on the application of Shindler and another) (Appellants) v Chancellor of the Duchy of Lancaster and another (Respondents) UKSC 2016/0105, reached the Supreme Court last week. The Court held an oral hearing for application for permission to appeal. This failed. Lady Hale expressed sympathy for Shindler and MacLennan, but announced the Court’s decision that, assuming EU law to apply, it is not arguable that the 2015 Act interferes with free movement rights. As the hearing was confined to seeking leave to appeal, the Supreme Court did not engage in review of the Court of Appeal’s stance on Art 50, TEU. Nor did it accept the bold invitation of counsel for the appellants, put during the oral hearing, to declare the 15 year time bar unconstitutional on common law grounds. Aidan O’Neill QC drew the Court’s attention to the government’s plans, announced in the May 2015 Queen’s Speech, to abolish the 15 year time bar, which it has conceded to be arbitrary. The planned Votes for Life Bill has not materialised.

The difficulty for litigants invoking the common law in such cases lies in persuading a court to build on the acknowledged constitutional foundations of the franchise as a political liberty to articulate a concrete – actionable – common law right to vote. The constitutional principle the Supreme Court articulated in Moohan v Lord Advocate, echoed in the Court of Appeal in this case, indicates the potential readiness of the courts to step in to block attempts by Parliament to retract voting rights in some dramatic, discriminatory or blanket way: stripping the franchise from certain racial or religious groups for example, or setting the voting age at 45. There is little trace in the dicta on the nature of the common law right to vote indicating any willingness on the part of the judiciary to deploy the common law to police other sorts of disenfranchisements (of prisoners; of long-term expatriates) which appear less blatantly unacceptable on constitutional grounds. The common law protects a right to vote in the sense that it offers a broader constitutional assurance that judges would oppose political attempts to retreat significantly from the law’s commitment to universal suffrage. Judges are unlikely ever to be persuaded to regard the common law as a sound basis for claims seeking to recalibrate franchise laws that respect in broad terms the constitutional commitment to universal suffrage. This poses a structural obstacle for groups like prisoners and expatriates who find themselves currently situated beyond prevailing political understandings of the limits of the idea of universal suffrage. And a sceptic might think that a common law right to vote that merely tracks the statutory expressions of it which Parliament chooses to offer is not much of a legal right at all.

Another dimension of the issue that this litigation highlights (as does ongoing constitutional litigation in Canada) is the zeal with which constitutional law and politics remain committed to the idea that national citizenship is relevant to the distribution of voting rights. There is another group disenfranchised in the EU referendum: EU citizens lawfully resident in the UK. Though they enjoyed the right to vote in the Scottish referendum, they have no say in this momentous political choice concerning their rights to remain settled in their homes, jobs and lives here. Yet Commonwealth citizens residing here have the right to vote. This group includes those from Malta, who are also EU citizens. Cypriots might find themselves in a similar position. Separately, Irish citizens are in the privileged position of enjoying full UK voting rights, so they too can vote in the referendum by virtue of those laws if not in consequence of their EU citizenship.

Comment

We should consider reforming election law to endorse the principle that lawful residence, not the happenstance of the particular passport we possess, generates the right to vote. And though we may share Lady Hale’s sympathy with the expatriates who feel left out by their disenfranchisement, there are powerful arguments against including any expatriates in the electorate. Voting is not, after all, an act concerned with a person’s emotional attachments to a place they may never return to live in. It is a right related to the stake a person has presently in the polity. We should not allow respect for feelings of Britishness to dictate something as fundamental as the terms of our laws governing the franchise.

Instead of a Votes for Life Bill, how about a Votes for All Lawful Residents Bill, extending the franchise to resident non-citizens (perhaps after a one year settlement period) and retracting it from all non-resident citizens? The claims of the former to the right to vote are at least as strong as those of expatriates. New Zealand has led the way with reforms granting all permanent residents full voting rights. We should follow this model. The franchise ought not to be characterised as a lifelong free gift to privileged groups of people holding favoured passports. Perhaps one day norms will evolve that will condemn our present day willingness to disenfranchise large tracts of the population on the basis of their passport status as we now reject the historic denial of votes to women. Identity, whether tied to gender or nationality, ought not to be used to distribute or deny the right to vote. Those expatriates who have a legal right to vote on June 23rd are the beneficiaries of policies and election laws that seek to universalize suffrage extra-territorially while fencing out of the electorate many deserving domestic residents. This sort of practice is an injustice politics is unlikely to remedy soon, and one our courts are not equipped to cure.