Human Rights Act 1998 – Seán Crossan's Scots Law

Been there, done that, got the T-shirt …

Match Day at Celtic Park, Glasgow (Photo by Amadej Tauses on Unsplash)

Author’s note dated 17 March 2021: the Appeal Court of the High Court of Justiciary has since reinstated the convictions of the three men involved in this case. Please see the link below to the High Court’s judgement:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2021hcjac20.pdf?sfvrsn=0

A debate I’ve been having this last week with both my First and Second Year students has concerned the tension between the rights to free speech and freedom of expression and the right not to suffer discrimination – all of which are protected under the European Convention on Human Rights.

Can you say and do what you want even if such actions cause offence to another person? Up to a point, yes, but there are limits to freedom of speech and freedom of expression even in a democratic society which highly prizes such important examples of human rights. If you cross the line which divides acceptable from unacceptable behaviour you may well find that you are accused of a public order offence or, more seriously, hate crime.

To some extent, a case heard last week by the Criminal Division of the Sheriff Appeal Court in Edinburgh indirectly touched on some of these issues (see the Appeals of Daniel Ward, Martin Macaulay and Ryan Walker v Procurator Fiscal, Glasgow [2020] SAC (Crim) 006).

The appeals were submitted by three men who had attended a European Champions’ League qualifying tie at Celtic Park, Glasgow on 19 July 2017.

The background

Celtic FC, which has a predominantly Roman Catholic fan base, was playing against Linfield from Belfast, a Club which is mainly supported by Protestants in Northern Ireland. The men had worn T shirts with Irish Republican imagery to the match – undoubtedly a provocative gesture on their part.

To say that the potential for sectarian unrest at this fixture was very high would be something of an understatement. There had, in fact, been trouble between the opposing fans at the first leg of the tie in Belfast the week previously.

Proscribed not prescribed

The complaint issued by the Procurator Fiscal against Messrs Ward, Macaulay and Walker was set out in the following terms:

“On 19 July 2017 at Celtic Park Football Stadium, Glasgow G40 3RE you
MARTIN MACAULAY, DANIEL WARD and RYAN WALKER did conduct yourselves in a disorderly manner within said Celtic Park Football Stadium in that you did attend at a regulated football match there whilst wearing a shirt which displayed an image of a figure related to and in support of a prescribed (sic) terrorist organisation namely The Irish Republican Army (IRA) and commit a breach of the peace.“

It is worth highlighting a particular error in the above Complaint issued by Glasgow Procurator Fiscal’s office: there is a very important difference between the words prescribed and proscribed (the correct term which denotes an organisation e.g. a terrorist group which is banned by the State). Whether this error was a typo or ignorance on the part of someone at the Fiscal’s office, I’m unsure.

At the conclusion of their trial at Glasgow Sheriff Court in February 2020, Messrs Ward, Macaulay and Walker were convicted of a breach of the peace.

A large part of the prosecution’s evidence against the trio relied on the testimony of three Police Officers who were on duty at the match. Two of the officers (Constables Stirling and Taylor) served with Police Scotland and the third officer (Constable Nixon) served with the Police Service of Northern Ireland.

Now, you would have been forgiven for thinking that the Crown had met the requirement of corroboration – which is a fundamental principle of Scots criminal law. Corroboration is the duty placed on the Crown prosecutor to produce at least two independent sources of evidence which will prove beyond reasonable doubt that the accused is guilty.

The Sheriff at Glasgow certainly thought so as all three officers were able to describe the imagery displayed on the T-shirts worn by the three co-accused i.e. a man with aviator sunglasses wearing a black beret and a camouflage scarf with the Irish tricolour as a background.

As one of Scotland’s leading criminal defence lawyers, Donald Findlay QC interviewed as a participant in BBC Scotland programme Too young to die – Crime Scenes Scotland: Forensic Squad (first broadcast in 2014) observed:

“The trial system that we have – whether you like it or not – is an adversarial system and it is for the Crown to overcome every legitimate hurdle that we put in the way of them proving their case. Thereby we hope that, if someone is convicted, the conviction is justified.”

Mr Findlay goes on to remark that:

“My part in the law is to say to the Crown that if you want to prove guilt, you’ve got to prove it beyond a reasonable doubt and we’ll do our best to make sure that you do. I can live with that – whatever the outcome.”

Appeal against conviction

The three co-accused appealed on a point of law in terms of Section 160 of the Criminal Procedure (Scotland) Act 1995 that the Sheriff had been wrong in his failure to consider their arguments, namely:

1. That the T-shirts did not convey support for a proscribed terrorist organisation (the IRA); and

2. Their behaviour at the football match was not a breach of the peace.

The testimony of each of the officers on the question of the imagery displayed on the T-shirts was highly consistent, but was it safe to say that the value of the evidence presented by each witness should be treated equally?

Alas for the Crown, this is where a major problem emerged. Absolutely no disrespect to the two Scottish Police officers, but they were not in a position to speak with authority on whether the three men by wearing these T shirts were expressing support for a proscribed terrorist organisation.

Significantly, the Sheriff Appeal Court drew specific attention to the decision in Smith v Donnelly 2002 JC 65 which emphasises that “it has been clear beyond doubt that a charge of breach of the peace requires to specify the conduct involved.”

Only Constable Nixon with his direct experience of policing in the febrile environment of Northern Ireland was capable of validating the charges laid out in the complaint. Unfortunately, Constable Nixon’s testimony alone was not sufficient to meet the requirements of corroboration. In a criminal trial, the prosecution case requires certainty not probability.

Reference was made specifically to Lord Kirkwood’s remarks in Fox v HM Advocate 1998 JC 94:

“It is a cardinal principle of our common law that no one can be found guilty of a crime upon the uncorroborated evidence of a single witness, however credible or reliable that witness may be. There must be evidence from at least two separate sources which is capable of establishing the facta probanda beyond reasonable doubt.”

Consequently, the Sheriff Appeal Court quashed the convictions of the three men. This does not mean that the Sheriff Appeal Court is giving the green light to football fans to display such imagery on T shirts and other garments. Far from it: as the judges commented:

“In the particular circumstances which pertained in this case, we would have regarded the wearing of a T-shirt which depicts an image in support of a proscribed organisation, such as the IRA, as so flagrant that the necessary inference could be drawn from it, in the absence of evidence of alarm or annoyance. It is difficult but to conclude that the wearing such T-shirts amounted to a deliberately provocative gesture directed towards the Linfield support. The wearing of such T-shirts in near proximity to the opposing supporters within or around a football stadium is conduct which, if proved, would in our view present as genuinely alarming and disturbing, in context, to any reasonable person.”

Had the prosecution focused on corroborating the element of the charge which emphasised support for a proscribed terrorist organisation, the convictions of the three men might well have been upheld.

Football fans would do well to remember that their right to freedom of expression or freedom of speech could be severely restricted by the Authorities in order to prevent the commission of a crime, such as hate crime or public order offences. If you are still in any doubt, let me point you in the direction of the decision in an earlier appeal judgement of the High Court of Justiciary which reminds us that wearing a T shirt with paramilitary imagery can constitute a breach of the peace (see Maguire v Procurator Fiscal, Glasgow [2013] HCJAC).

A link to the judgement of the Sheriff Appeal Court can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/saccrim006.pdf?sfvrsn=0

Copyright Seán J Crossan, 29 November 2020

Bad hair day

It never ceases to amaze me that employers and service providers fall foul of arbitrary codes or policies which they impose on employees and service users. Regular readers of this Blog will be aware of previous articles covering discrimination or less favourable treatment which arises because employers or service providers issue generalised guidelines which discriminate against individuals because they happen to have certain hairstyles or wear beards or jewellery.

It is this lack of awareness that often leads to legal action in terms of the Equality Act 2010. By imposing a policy, criterion or practice (PCP) across the board, employers and other organisations could be setting themselves up for a fall specifically in relation to Section 19 of the Equality Act 2010. This part of the Act makes indirect discrimination unlawful i.e. it is an example of prohibited conduct by reason of a person or a group possessing a protected characteristic such as race or religion (Sections 9 and 10 respectively)

Since the introduction of the Race Relations Act 1976 (now repealed by the Equality Act 2010), we have seen a number of well known cases involving indirect discrimination being determined by Courts and Tribunals. So, you would think by now that employers and other organisations would have learned the lesson by now – apparently not as we shall see shortly.

In short order, such bans or generalised restrictions may infringe religious and cultural expression and may not only be a breach of the Equality Act, but could also represent a breach of human rights laws under the Human Rights Act 1998 and Article 9 of the European Convention on Human Rights.

Over the years, groups such as Jews, Muslims, Orthodox Christians, Sikhs and Rastafarians have brought successful legal actions for indirect discrimination on grounds of race and/or religion (see Mandla v Dowell–Lee [1982] UKHL 7). Being Jewish or Sikh can be both a religious and a racial identity.

Taking all of the above on board, I was really interested to read a story in The Independent this weekend which highlighted the problems of schools imposing dress codes on pupils. I thought: haven’t we been here before and why does no one seem to learn?

The story in question involves Ruby Williams who was “repeatedly sent home from Urswick School in Hackney, East London because she had Afro hair”. The school seems to have reacted with gross insensitivity to the youngster by informing her that her hairstyle was a breach of school uniform policy and that it could “block other pupils from seeing the whiteboard”.

Ruby and her family took legal action against the school (with the support of the Equality and Human Rights Commission) and she has since been awarded an out of court settlement of £8,500. The settlement figure clearly reflects the distress which she has suffered and the fact that all this trouble took place when she was studying for her GCSE exams (remember the Vento Guidelines anyone?). Ruby’s father is a Rastafarian and he has often stressed to his daughter the cultural, racial and religious significance of Afro hairstyles.

Apart from indirect discrimination which the school’s policy has caused to Ruby Williams, she may well also have had a claim in terms of Section 13 (direct discrimination) and Section 26 (harassment) of the Equality Act 2010 for being singled out in this way by the school authorities.

Perhaps the staff and Governors of the school might find it appropriate to undertake an equality awareness course at the next in-service day?

It is always open to an employer or service provider to show that although indirect discrimination has taken place, it can be objectively justified e.g. on national security grounds or health and safety reasons (e.g. Singh v Rowntree MacKintosh [1979] ICR 554 and Panesar v Nestle Co Ltd [1980] IRLR 64 CA).

Each attempt to justify a provision, criterion or policy (PCP) will, of course, turn on its facts and it would be very foolish for organisations to think that there is some sort of magic bullet or get out of jail card which can be used in every situation to justify or excuse conduct which would otherwise amount to unlawful discrimination. Organisations should review policies on a regular basis and, if need be, this may necessitate the carrying out of an equality impact assessment.

A link to the story on The Independent’s website can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.080220/data/9323781/index.html

Related Blog Articles:

https://seancrossansscotslaw.com/2019/07/09/boxing-clever/

https://seancrossansscotslaw.com/2019/08/20/beardy-weirdy/

https://seancrossansscotslaw.com/2019/02/21/indirect-discrimination/

https://seancrossansscotslaw.com/2019/04/10/everyday-experiences-of-racism/

https://seancrossansscotslaw.com/2019/02/14/hurt-feelings/

Copyright Seán J Crossan, 9 February 2020

Rehab (or I can change)

Photo by Ross Findon on Unsplash

Unlike the fantastic Amy Winehouse track, in the case that I’ll discuss shortly, it was the prisoner who wanted to go to rehab. His perception that the Prison Service had said “no” was the basis of a petition for judicial review.

Yes, we’re barely into 2020 and the human rights’ bandwagon for prisoners rolls on yet again.

Last month, I wrote two Blogs about petitions for judicial review submitted by prisoners to the Court of Session in respect of Article 8 of the European Convention on Human Rights (i.e. the right to family and private life). Both applications were unsuccessful (see William Frederick Ian Beggs v The Scottish Ministers [2019] CSOH 95; and Petition of David Gilday for Judicial Review of the actions of the Scottish Ministers [2019] CSOH 103).

The Scottish Government (or Ministers) are legally obligated in terms of both the Scotland Act 1998 and the Human Rights Act 1998 to ensure that public bodies and agencies comply with the State’s obligations under the European Convention on Human Rights. Regular readers of this Blog site will be very familiar with this state of affairs.

In a recent case before Lord Ericht in the Court of Session, a third inmate of one of Her Majesty’s penal institutions fared no better than his fellow hoodlums when he raised a claim for damages of £10,000.

In the Petition: Michael Glancy for Judicial Review of the actions of Scottish Ministers [2020], Michael Glancy [the prisoner] claimed that the alleged failure by the Scottish Prison Service to provide him with proper rehabilitation opportunities represented a breach of his right to liberty in terms of Article 5 of the European Convention on Human Rights. In essence, Glancy was arguing that the lack of such opportunities was in effect turning his imprisonment into an ongoing period of arbitrary detention with very little prospect of him meeting Parole Board criteria for his release on licence.

The background to the prisoner’s circumstances were as follows:

“In June 2015, at the High Court in Edinburgh, the petitioner was sentenced to a period of imprisonment of 4 years with an extension period of 2 years. He had been convicted of assault to injury, two charges of assault, a contravention of the Criminal Law (Consolidation) (Scotland) Act 1995, section 52 (vandalism), two charges of assault (domestic) and assault to injury, permanent disfigurement and danger of life. The petitioner had had previous convictions …”

At a Parole Board Hearing in 2016, it was noted that:

“In light of the current circumstances, behaviour and attitude of Mr Glancy it is not possible to positively recommend his release on licence. It would appear that he is so engaged in extreme, violent and anti-authority type behaviour there is no possibility of his risk being managed in the community subject to licence conditions.
There are significant concerns as to how Mr Glancy will be managed in the community, not least where he will live.”

Glancy’s main bone of contention seems to have centred around his belief that he was denied the opportunity to participate in the Self-Change Programme (“SCP”).

As Lord Ericht noted:

“This [SCP] is a high intensity cognitive-behaviour programme that aims to reduce violence in high risk adult male offenders. It is for prisoners with a persistent and persuasive pattern of violence. It is for violent offenders who present the highest risk and is used for the top 2% to 5% of offenders in terms of risk.”

While serving his sentence, Glancy had refused certain opportunities to address his criminal offending and, furthermore, he had been the subject of 13 misconduct reports (overwhelmingly connected with fighting and assault). As Lord Ericht observed [at paragraph 50] it was the repeated failures of Glancy to engage with meaningful offers of rehabilitation during his periods of incarceration that led to his exclusion from SCP.

In dismissing Glancy’s Petition, Lord Ericht made the following observations:

“Moreover I find that the respondents have not failed to provide information about when rehabilitative work might be offered in terms of article 5, or acted irrationally in failing to provide him with this. The minutes of the various case management meetings show that there was extensive discussion with the petitioner throughout the period of his incarceration about the courses available to him. In response to his complaint, the prisoner was informed that the SCP course for non-protection prisoners was not running at that time but he would be notified of the date of the course applicable for his category of prisoner. No date for such a course has since been fixed.”

A link to Lord Ericht’s Opinion in respect of Glancy’s Petition can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2020csoh001.pdf?sfvrsn=0

Related Blog Articles:

https://seancrossansscotslaw.com/2019/12/04/red-letter-day/

https://seancrossansscotslaw.com/2019/12/23/serious-drugs/

Copyright Seán J Crossan, 24 January 2020

Presumption of innocence?

Photo by Kay on Unsplash

A deeply embedded principle?

Should the accused in a criminal trial enjoy the presumption of innocence?

This is a long established principle of criminal law in the Western World that I have taken for granted since my first days at university. I always remember Professor Kenny Miller (of Strathclyde University’s Law School) correcting students who spoke in error about the ‘guilty’ person in a Scottish criminal trial. They were quickly admonished and reminded of the maxim that everyone is innocent until proven guilty.

Indeed, Article 11 of the United Nations’ Universal Declaration of Human Rights takes the view that the presumption of innocence is a fundamental human right.

Furthermore, Article 6 of the European Convention on Human Rights establishes the right to a fair trial and this includes the presumption of innocence. In the United Kingdom, this very important right has been incorporated into Scots, English and Northern Irish law via the Human Rights Act 1998. In Scotland, we, of course, have an additional layer of protection with the Scotland Act 1998.

Article 48 of the EU Charter of Fundamental Rights also echoes Article 6 of the European Convention.

Going back to the historical record, the Byzantine or Roman Emperor Justinian I emphasised the presumption of innocence for the accused as part of codification of Roman Law between 529-534 CE. Admittedly, Justinian was building on previous Roman legal practice as the Emperor Antoninus Pius (he of the less well known Wall for our Scottish readers) had introduced the principle during his reign between 138 and 161 CE.

The Romans would say Ei incumbit probatio qui dicit, non qui negat; translated as Proof lies on him who asserts, not on him who denies.

Jewish and Islamic scholars have, historically, also placed huge importance on the presumption of innocence as a cornerstone of their legal practices. Both the Jewish Talmud and Islamic Hadiths (sayings or practices of the Prophet) testify to this.

The Carlos Ghosn Affair

So, why am I reflecting on this area this dull and rainy second day of the New Year?

The escape from Japan of Carlos Ghosn brought the principle forcibly to mind this New Year. Mr Ghosn is the former Chief Executive of Nissan who has been accused of defrauding his former employer.

Mr Ghosn was under effective house arrest in Japan until a few days ago. Allegedly, with the help of his wife, he escaped from that country to the Republic of Lebanon (of which he is a citizen) The escape reads like something from a Hollywood movie script (the Mission: Impossible series anyone?) with Mr Ghosn hiding in a musical instrument case (presumably not a violin case) in order to make good his unauthorised exit from Japan.

A link to an article about Mr Ghosn’s escape in The Independent can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.020120/data/9266461/index.html

A link to a YouTube film about the Affair can be found below:

https://youtu.be/BAxwWW5Ldqo

What is Mr Ghosn’s motivation for leaving Japan in this dramatic way? He claims to have no faith in Japanese justice in that the legal system of that country presumes his guilt.

The Japanese criminal justice system

Not possessing a great deal of knowledge about Japanese criminal practice, I admit that I was somewhat intrigued by Mr Ghosn’s assertions.

I had also just finished reading Owen Matthew’s excellent biography* of Richard Sorge, probably the most successful spy in modern history (and a possible role model for James Bond). Sorge had been spying for the Soviet Union in Japan in the 1930s and 1940s until he was unmasked and arrested in 1941. The treatment of Sorge at the hands of the Japanese criminal justice authorities forms part of the climax to the book.

As Owen Matthews notes:

‘Japanese justice, surprisingly, for an authoritarian state, turned out to be both thorough and scrupulous. The three volumes of investigative documents prepared by the Tokko [the Japanese Police] are exhaustive, far more professional than the cursory evidence which the NKVD [the forerunner of the Soviet KGB] assembled to convict hundreds of thousands of suspected spies in the 1930s.’ [p345]

Does the Japanese criminal code presume the guilt of persons on trial, as opposed to their innocence?

I decided to investigate …

… what I discovered was something rather more subtle.

The Japanese legal system does recognise the right of the accused to be presumed innocent until proven otherwise – despite Mr Ghosn’s claims. The burden of proof rests on the prosecution to demonstrate the guilt of the accused (as in Scotland, England, the United States etc).

There are indeed criticisms of the Japanese legal system that could be made (but no legal system is immune from criticism). In particular, the practice of not allowing suspects to have access to a lawyer during Police interrogation has been highlighted as a weakness of the system.

Before Scots lawyers get too smug, we would do well to remember the Peter Cadder case which led to an overhaul of Scottish criminal practice (see Cadder v HMA [2010] UKSC 43).

Another criticism of the Japanese legal system seems to centre around the practice of prosecutors rearresting an accused when s/he has been acquitted by a lower court. The accused is then taken before a superior criminal court for a further trial and, possibly, conviction.

That said, in Scotland (and in England), we have abolished the double jeopardy rule, but this does not mean that prosecutors have free range to do what they like.

Finally, an accused who maintains his/her innocence under the Japanese legal system, is often not granted bail and can therefore be expected to undergo a lengthy period of detention until the case is brought to trial (Mr Ghosn was perhaps luckier than most being under house arrest). Critics of this aspect of the legal system have pointed out that it puts suspects under duress making them more likely to make an admission of guilt. Mr Ghosn had apparently spent 120 days in detention before bail (with very strict conditions) was granted last year.

Links to articles about the Japanese legal system from the local media can be found below:

https://www.nippon.com/en/japan-topics/c05403/at-the-mercy-of-the-system-criminal-justice-and-capital-punishment-in-japan.html

https://mainichi.jp/english/articles/20190109/p2a/00m/0na/015000c

https://www.japantimes.co.jp/community/2003/12/09/issues/burden-of-proof-impossible-to-bear/#.Xg456i-nyhA

https://www.japantimes.co.jp/news/2019/01/05/national/media-national/international-scrutiny-japans-criminal-justice-system-fair/#.XhUY0S-nyhA

Conclusion

The principle of presuming the innocence of the accused in a criminal trial until proven otherwise is a deeply rooted one in the Western World. It is a cornerstone of our justice systems. The United Nations regards it as a fundamental human right in terms of the Universal Declaration of Human Rights.

Yet, to assume that it is a Western concept alone, would be a monstrous conceit. Jewish and Islamic legal scholarship have both emphasised the importance of this principle.

Japan, as a member of the United Nations, also recognises the importance of the principle – which makes some of Mr Ghosn’s claims somewhat misjudged. Yes, the operation of the Japanese criminal justice system can and is the subject of criticism, but this observation also applies to every other legal system in the World.

* “An Impeccable Spy – Richard Sorge – Stalin’s Master Agent” by Owen Matthews (Bloomsbury Publishing: 2019)

Civil partner? I do!

Photo by Jason Leung on Unsplash

As of today (31 December 2019), heterosexual couples in England and Wales will be able to enter civil partnerships as an alternative to marriage.

This change does not yet extend to Scotland: the Scottish Government has introduced its own Bill to introduce civil partnerships for heterosexual couples.

An info graphic showing the current progress of this Bill in the Scottish Parliament (Stage 1) can be seen below:

When the Labour Government of Prime Minister Tony Blair originally introduced civil partnerships across the UK (as a result of the Civil Partnerships Act 2004) such legal unions were open to gay and lesbian couples only.

It was the first time in the history of Scots and English family law that gay and lesbian couples were entitled to enter a legally recognised relationship.

Fast forward a decade or so and we now have same sex marriage in Scotland, England and Wales – but not yet Northern Ireland (although the clock may be ticking here on this issue). Admittedly, same sex couples can enter civil partnerships in Northern Ireland, but since the Republic of Ireland made same sex marriage legal in 2015, pressure has been mounting for change in the North.

The case which started the ball rolling was Steinfeld and Keidan v Secretary of State for Education [2016] EWHC 128 (Admin).

In Steinfeld and Keidan, an unmarried, heterosexual couple brought a claim for unlawful less favourable treatment against the UK Government on the basis that the law (contained in the Civil Partnership Act 2004) discriminated against them by forcing them to enter marriage as opposed to their preferred option of a civil partnership arrangement. The couple had strong “ideological objections” to marriage (irrespective of whether it took a religious or civil form) and argued, amongst other things, that the failure by the United Kingdom to give them the option of entering a civil partnership was a potential breach of their Article 8 rights (the right to privacy and family life) in terms of the European Convention on Human Rights. The ban on civil partnerships for heterosexual couples was also a potential breach of the Equality Act 2010 in the sense that it represented direct discrimination on grounds of a person’s sexual orientation.

Initially, the English High Court rejected the challenge brought by Steinfeld and Keidan, whereupon the case was allowed to proceed to the English Court of Appeal. Although expressing sympathy for Steinfeld and Keidan’s predicament, the Lord Justices of Appeal refused to overturn the ban (see Steinfeld and Keidan v Secretary of State for Education [2017] EWCA Civ 81).

The couple were then given leave to appeal to the UK Supreme Court.

On 27 June 2018, the Supreme Court issued its decision: R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32.

Lord Kerr gave the leading judgement (with which his fellow Justices concurred) and allowed Steinfeld and Keidan’s appeal:

“I would allow the appeal and make a declaration that sections 1 and 3 of CPA [Civil Partnership Act 2004] (to the extent that they preclude a different sex couple from entering into a civil partnership) are incompatible with article 14 of ECHR taken in conjunction with article 8 of the Convention.”

Following the Supreme Court’s decision, the UK Government of former Prime Minister Theresa May initiated steps to amend the Civil Partnership Act 2004 in respect of the law for England and Wales.

A link to an article about the change to the law in England and Wales on the Sky News website can be found below:

Civil partnerships: First mixed-sex couples celebrate union http://news.sky.com/story/civil-partnerships-first-mixed-sex-couples-celebrate-union-11898759

Enemies of the people?

Photo by Fred Moon on Unsplash

Have British judges become too politicised?

Michael Howard, former UK Conservative Party Leader from 2003 until 2005 (and now, somewhat ironically, an unelected member of the House of Lords) certainly thinks so – and he hasn’t been afraid to make his views known on the subject during the last few days.

A link to an article in The Independent discussing Mr Howard’s remarks can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.291219/data/9262576/index.html

In an interview on the BBC’s Today programme, Mr Howard posited the question as to whether the law should be made by “elected, accountable politicians, answerable to their constituents and vulnerable to summary dismissal at election, or by unaccountable, unelected judges who can’t be removed”.

Sour grapes?

To some extent, we could accuse Mr Howard of sour grapes or dissatisfaction with a number of recent legal judgements which have gone against the express wishes of the previous UK Conservative Government (2017-19) which wished to prioritise the exit of the UK from the European Union (Brexit).

It is also worth remembering that Mr Howard’s tenure as British Home Secretary (the Minister of the Interior) from 1993 until 1997 was characterised by conflicts with judges who often ruled against Government policy when making decisions about applications for judicial review.

Brexit

As a long established Eurosceptic (and as one of the prime suspects for membership of the group of “3 b*stards” in former Prime Minister John Major’s cabinet (1992-97), you would not really have expected Mr Howard to be terribly happy about the lack of progress on Brexit (some three and a half years on from the Referendum of 23 June 2016).

In R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, the former Prime Minister, Theresa May was forced to concede that she personally could not trigger Article 50 of the Treaty on European Union in order to begin the process of the UK’s withdrawal from the European Union. Brexit wasn’t going to ‘get done’ without first having undergone a series of confirmatory votes in both Houses of the Westminster Parliament. The use of the Royal prerogative (the ancient powers of the Monarch) by the then Prime Minister to ignore Parliament was not an appropriate legal action in a modern democracy.

In Wightman and Others (Notification by a Member State of its intention to withdraw from the European Union – Judgment) [2018] EUECJ C-621/18 (10 December 2018), the Court of Justice of the European Union, in a preliminary ruling, stated that a member state which had initiated Article 50 proceedings to leave the EU could reverse its decision unilaterally without first seeking the consent of all the other member states.

The request for the preliminary ruling (in terms of terms of Article 267: Treaty on the Functioning of the European Union) had been submitted by the Inner House of the Court of Session; but critically the action had been initiated by a group of democratically elected politicians (in the main).

In R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland) [2019] UKSC 41 (On appeals from: [2019] EWHC 2381 (QB) and [2019] CSIH 49), the proverbial really hit the fan when the UK Supreme Court ruled (unanimously) that the decision by current UK Prime Minister, Boris Johnson to suspend or prorogue the Westminster Parliament for 5 weeks was nothing less than unlawful.

As Baroness Hale, President of the Supreme Court, stated:

“It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.”

The Human Rights Act 1998

The mask really slips from Mr Howard’s face (possibly revealing something of the night about him?) when he turns his ire upon the effect of the Human Rights Act 1998. He begins by acknowledging that the UK Parliament conferred powers on senior judges to determine whether UK legislation was human rights compliant and then blames the judges for this situation! As a former barrister, Mr Howard really should know better.

Opponents of human rights legislation have always beaten the drum that the discretion given to (unelected) judges to attack or strike down laws which are deemed not to comply with those parts of the European Convention are a threat to British democracy. In the febrile atmosphere of Brexit, judges are now acutely aware that they can and will be accused of meddling in politics.

As I have previously remarked, statements such as Mr Howard’s recent remarks are factually incorrect when viewed through the prism of Westminster legislation. It soon becomes apparent that his arguments are highly misleading because all that superior court judges can do is to issue a declaration of incompatibility if a particular law or legal provision is found not to comply with the Human Rights Act 1998.

The declaration of incompatibility is like a football referee issuing a yellow card: foul play is being acknowledged, but the player remains on the field … for now. It will then be over to the Westminster Parliament (as the highest legal authority in the land) to bring in corrective measures to ensure that the law is changed, but this is Parliament’s decision alone

The consequences of declaring UK parliamentary legislation incompatible with the European Convention on Human Rights can be fully appreciated if we refer to the Supreme Court’s decision in R (Nicklinson) v Ministry of Justice (CNK Alliance Ltd intervening) [2014] UKSC 38:

“An essential element of the structure of the Human Rights Act 1998 is the call which Parliament has made on the courts to review the legislation which it passes in order to tell it whether the provisions contained in that legislation comply with the Convention. By responding to that call and sending the message to Parliament that a particular provision is incompatible with the Convention, the courts do not usurp the role of Parliament, much less offend the separation of powers. A declaration of incompatibility is merely an expression of the court’s conclusion as to whether, as enacted, a particular item of legislation cannot be considered compatible with a Convention right. In other words, the courts say to Parliament, ‘This particular piece of legislation is incompatible, now it is for you to decide what to do about it.’ And under the scheme of the Human Rights Act 1998 it is open to Parliament to decide to do nothing.”

Judicial Review

It is also apparent that Mr Howard is not a big fan of judicial review: he obviously thinks that this area of the law has expanded. True, it has but this is because the role of Government across the UK has dramatically expanded since the Second World War. This is due to a large part with the expansion of the Welfare State. Government policies which affect education, employment, health, immigration, taxation etc can be challenged by members of the public via an application for judicial review before either the Court of Session (Scotland); the High Court (England and Wales); and the High Court (Northern Ireland).

Conclusion

The UK has an unwritten Constitution – unlike other countries which have written constitutions (France, Germany, Italy and the USA). In political systems with a written constitution, there are often very clear rules governing the conduct of elected politicians.

This does not mean that, in political systems with written constitutions, the courts have no role to play. Of course they do.

It is an accepted part of the political culture of these countries that a Supreme Court or a Constitutional Court will be the final arbiter of very thorny legal and political issues e.g. the role of the US Supreme Court in legalising abortion (Roe v Wade 410 U.S. 113 (1973)) or same sex marriage (Obergefell v Hodges 576 U.S. ___ (2015)). They may be controversial in nature and generate heated debate for decades to come, but very few US citizens would contest the right of the Supreme Court to make such judgements.

As a point of contrast, note the hysteria which was generated when judges of the English High Court permitted Gina Miller’s action to succeed in blocking former Prime Minister Theresa May’s attempt to trigger Article 50 of the Treaty on European Union without, first, securing UK parliamentary approval (see R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5).

The UK tabloid newspaper, The Daily Mail ran an astonishing front page on 4 November 2016 branding the judges “enemies of the people”. More prosaically, the High Court’s judgement (later approved by the UK Supreme Court in early 2017) was merely clarifying the law surrounding the Prime Minister’s use of the Royal prerogative in foreign affairs. You would not have thought this from the media and political reaction in certain quarters.

Governments, just as much as individuals, should not think themselves to be above the law. The rule of law in a democratic society is a principle worth hanging on to.