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.

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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