Human rights – Page 2 – Seán Crossan's Scots Law

Enemies of the people?

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.

Copyright Seán J Crossan, 31 December 2019

Serious drugs

Photo by George Pagan III on Unsplash

Petitions for judicial review in respect of alleged breaches of Article 8 of the European Convention (right to respect for private and family life) submitted by serving prisoners seem to be very much in vogue.

At the beginning of December, we had the Court of Session dismissing a petition for judicial review submitted by William Beggs (the notorious ‘Limbs in the Loch’ killer (see William Frederick Ian Beggs v The Scottish Ministers [2019] CSOH 95).

Some weeks later, another petition has been disposed of by the Court of Session which raised many of the same legal principles. David Gilday, another inmate of Her Majesty’s penal establishments, has proved to be no luckier than Beggs.

Gilday was complaining about a breach of his Article 8 rights when correspondence (a greetings card) addressed to him was seized by the prison authorities on suspicion that it was impregnated with unlawful (psychoactive) drugs. Suspicions had been raised when a sniffer dog gave the package more than usual attention.

Article 8 of the European Convention is not an absolute right and it may be limited by State authorities (in this case the Scottish Prison Service) for:

“… the prevention of disorder or crime and for the protection of health or morals.”

Lord Pentland in the Outer House of the Court of Session noted:

“… that prison officers sometimes come into inadvertent contact with psychoactive substances in prison and the view had been taken that the SPS has a duty not knowingly to expose its officers to the risk of being exposed to such substances. That stance seems to me to be responsible and proportionate. In my opinion, a wide margin of discretion should be extended to the SPS to identify what constitutes a risk in a prison setting and to determine how best to address that risk … As I have already explained, the petitioner will become entitled to receive the card in the sealed bag at the stage when he eventually comes to be liberated from custody. I am satisfied that retention of the card until then serves the legitimate aim of controlling the use and distribution of drugs in prison.”

Consequently, the petition submitted by Gilday should be dismissed as the prison authorities had acted quite legitimately in interfering with the prisoner’s rights under Article 8 of the European Convention.

A link to Lord Pentland’s Opinion (Petition of David Gilday for Judicial Review of the actions of the Scottish Ministers [2019] CSOH 103) can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csoh103.pdf?sfvrsn=0

Related Blog Article:

For your eyes only?

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

Copyright Seán J Crossan, 23 December 2019

For your eyes only?

Photo by camilo jimenez on Unsplash

Two days running and we seem to be on a bit of a theme in this Blog about a person’s right to privacy and the limits of such a right.

If you picked up on yesterday’s Blog article (The limits of privacy), you’ll be aware that generally speaking the common law of Scotland (and indeed that of England) does recognise a person’s right to a private life. This right is also protected in terms of Article 8 of the European Convention on Human Rights (as implemented by the Scotland and Human Rights Acts 1998).

That said, privacy is not an absolute right and there may be all sorts of situations where the State (or your employer for that matter) might legitimately take in interest in your activities (whether these happen on the job or are of an extra-curricular nature).

If you’re William Beggs today, you might be feeling rather upset about this. William Beggs, for those of you who don’t know, is currently serving a life sentence for murder in a Scottish Prison. He earned the rather grim moniker, ‘The Limbs in the Loch’ killer because of he dismembered his victim (Barry Wallace).

Well, Mr Beggs – somewhat ironically many would no doubt be quick to pass comment – wished to pursue a legal action in which he alleged that his human rights had been breached by the prison authorities. Specifically, Beggs objected to the practice of the authorities in opening and reading his private correspondence from his doctors and lawyers. In his opinion, the authorities (the Scottish Prison Service and the were in breach of his right to privacy as guaranteed by Article 8 of the European Convention on Human Rights.

There were three incidents between October and November 2018 where Beggs objected to the Scottish Prison Service monitoring his correspondence: two letters with the details of hospital appointments and one letter from his lawyer had been opened. The prison official who opened the letter from Beggs’ lawyer had done so mistakenly and the authorities apologised fully for this action.

Beggs submitted a petition for judicial review of the actions of the Scottish Prison Service (and also that of the Scottish Government as the supervising state authority) to the Court of Session in Edinburgh.

Beggs also brought a claim for damages of £5,000 that he was a victim in terms of Section 6 of the Human Rights Act 1998 and the Section 100(3) of the Scotland Act 1998.

The outcome of Beggs’ petition

Unfortunately, for Beggs the Court of Session (where his application for judicial review was being heard) did not agree.

Yes, there is a general duty in terms of Article 8 for public authorities (the Scottish Prison Service and the Scottish Government to which it is answerable) to guarantee the right to privacy for serving prisoners, but it is not an absolute right.

As Article 8 makes abundantly clear:

“There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Lord Armstrong (in the Outer House of the Court of Session) was very clear, when arriving at his decision to reject Beggs’ petition, that the Scottish Prison Service had very good reasons for monitoring his confidential correspondence. According to rules 55 and 56 of the Prison and Young Offenders Institutions (Scotland) Rules 2011, such actions could be justified in situations where there was:

“reasonable cause to believe that the contents of the correspondence might endanger the security of the prison, endanger the safety of any person, or relate to criminal activity”.

Although the Prison authorities had erred when they opened Beggs’ legal correspondence, they had recognised this situation and promptly apologised to him.

Consequently, Beggs’ claim for damages was also rejected.

A link to Lord Armstrong’s Opinion can be found below:

William Frederick Ian Beggs v The Scottish Ministers [2019] CSOH 95

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csoh95.pdf?sfvrsn=0

Copyright Seán J Crossan, 4 December 2019

The limits of privacy

Photo by Tony Liao on Unsplash

Several of my previous blogs (It happened outside work … (or it’s my private life!) published on 7 February 2019; Social Media Misuse published on 11 April 2019; and Social media and dismissal published on 20 May 2019) have addressed the issue of whether employees have a right to privacy in the work-place.

The short answer is yes and no: privacy is not an absolute right.

Privacy in the work-place is becoming more of an issue thanks to the widespread use of social media by employees outwith working hours (and, of course, during the working day).

If you’re working in the public sector (and this, potentially, covers a large number of employees), Article 8 of the European Convention on Human Rights i.e. the right to family and private life could be particularly relevant to your situation.

Even if you’re employed by a private sector organisation, Article 8 rights are still relevant because they are ultimately guaranteed by the State (the United Kingdom) as a signatory to the European Convention. Furthermore, there are all sorts of situations where private sector organisations may be regarded as ’emanations/entities of the State’ because they carry out some type of work or provide a service which is beneficial to the wider public (think utilities companies or those organisations which benefit from outsourced contracts from local and central government).

Regular readers of this blog will know, of course, that provisions of the European Convention have been incorporated into Scots Law via the Scotland Act 1998 and the Human Rights Act 1998.

Employers, quite rightly, may have legitimate concerns about the type of content or statements that their employees post on social media platforms – especially if such material could cause the organisation to suffer some sort of reputational damage.

In such circumstances, it’s simply not a competent defence for employees to argue that disciplinary action (up to and including dismissal) which might be taken by their employers represents unwarranted interference in their private lives.

That said, it is very important for employers to set out clear guidelines and policies covering social media (mis)use by employees during and outwith working hours. There is a balancing exercise to be had here between the legitimate interests of the employer and the employee.

So, it was with some interest that I read about a case before the Outer House of the Court of Session during the summer which dealt with the boundaries of employee privacy (see Petition of B, C and Others v Chief Constable Police Service of Scotland and Others [2019] CSOH 48).

Lord Bannatyne rejected the Petition for judicial review lodged by a number of serving Police Scotland officers who were accused of (non-criminal) misconduct by their employer. These officers had allegedly used the WhatsApp social media platform to exchange a number of messages between them which were deemed to be offensive in nature and not in keeping with their role as serving members of Police Scotland.

Police Scotland wished to access the content of these messages in order to progress the misconduct hearings, but the officers involved in the disciplinary investigation argued that this constituted a breach of their human rights – specifically their rights to privacy Article 8 of the European Convention on Human Rights. More generally, the officers were also arguing that they had the right to privacy at common law.

His Lordship highlighted the significance of the important decision of the European Court of Human Rights: Von Hannover v Germany [2005] 40 EHRR 1 to the case before him.

Von Hannover raises three important considerations:

“… the width of the concept of private life; the purpose of Article 8, i.e. what it seeks to protect; and the need to examine the particular circumstances of the case in order to decide whether, consonant with that purpose, the applicant had a legitimate expectation of protection in relation to the subject matter of his complaint.”

The key issue which Lord Bannatyne identifies from Von Hannover, is whether the Scottish police officers “had a legitimate expectation of protection” in terms of Article 8; or to draw upon a phrase later formulated by UK Supreme Court Justice, Lord Toulson: “a legitimate expectation of privacy” (see In re JR38 2016 AC 1131).

In rejecting the officers’ petition, Lord Bannatyne focused on the existence of the Standards of Professional Behaviour contained in Schedule 1 to the 2014 Regulations to which all serving Police officers must adhere (in particular the officers had sworn an oath to uphold these Standards both while on and off duty).

His Lordship stated:

“There is a restriction on police officers’ private life and therefore their expectation of privacy. … It is only in relation to these matters that there is a limitation on the officer’s privacy it is not a whole scale intrusion into his private life. Accordingly to achieve the underlying purpose of the Standards, namely: the maintenance of public confidence in the police, police officers have a limitation on their expectation of privacy as above described.“

A link to Lord Banntyne’s judgement can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csoh48.pdf?sfvrsn=0

A link to how the story was reported by BBC Scotland can be found below:

https://www.bbc.co.uk/news/uk-scotland-tayside-central-48799289

As a point of interest, several days after Lord Bannatyne’s judgement was reported, the BBC carried a story about United States Border Patrol officers who were suspended from employment for posting offensive remarks about migrants (and other individuals) on Facebook.

A link to this story can be found below:

https://www.bbc.co.uk/news/world-us-canada-48834824

Reclaiming motion to the Inner House

Clearly dissatisfied with the judgement of Lord Bannatyne in the Outer House, the Petitioners appealed to the Inner House of the Court of Session by way of a reclaiming motion.

On 16 September 2020, the Inner House issued its judgement in this regard (see Petition of B, C and Others v Chief Constable Police Service of Scotland and Others [2020] CSIH 61). The Petitioners’ arguments (the reclaiming motion) were comprehensively and unanimously rejected by Lady Dorrian, the Lord Justice Clerk, Lords Menzies and Malcolm.

Some of Lord Malcolm’s remarks were especially striking and illuminating:

“Essentially, the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.” (Lord Nicholls in Campbell v MGN Ltd [2004] 2 AC 457 at paragraph 21) …

… All of those involved were police officers. Each had solemnly sworn to uphold certain professional responsibilities and standards in both their public and private lives, and had promised, in effect, to take action if informed of the misconduct of others. This was known to each participating officer. To take perhaps an extreme example, if a constable (or indeed any public official) writes to a colleague stating that he accepts bribes, he might hope that it will be treated in confidence; he might even have such an expectation, but if so, it is neither reasonable nor legitimate.”

Lord Malcolm also pithily disposed of an argument put forward by Counsel for the Petitioners:

“Mr Sandison submitted that police officers should enjoy the opportunity to have “off the record” communications between each other in whatever terms they consider to be appropriate. As he put it, the petitioners should be “free to be persons”, presumably as opposed to being members of the police force. The difficulty is that they are both.”

A link to the judgement of the Inner House can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2020csih61.pdf?sfvrsn=0

Human rights friendly?

Photo by Max van den Oetelaar on Unsplash

Not if you’re G4S, the British company, which has been blacklisted by Norway’s Sovereign Wealth Fund. This is the body which has the task of investing the proceeds of the country’s vast oil wealth for the benefit of Norwegian citizens.

The Norwegian Parliament, The Storting, which ultimately oversees the activities of the Sovereign Wealth Fund will not permit investments in companies or projects which fail to comply with the country’s international human rights obligations.

G4S has come under intense scrutiny by the Norwegians due to allegations of human rights abuses by the company in relation to the treatment of migrant workers in the Gulf States. The Sovereign Wealth Fund has decided to divest from G4S on the grounds that further involvement with the company may constitute a “risk” to human rights.

Like the UK, Norway is a signatory to the European Convention on Human Rights. The provisions of the European Convention on Human Rights (as implemented by the Human Rights Act 1998 and the Scotland Act 1998) are only enforceable against the British State or its institutions and organisations that carry out public functions, for example, universities, care homes, colleges, hospitals, housing associations, schools and local authorities.

Norway as a contracting party to the European Convention is in a similar, legal position in the sense that its public bodies or emanations of the State (a category which clearly the Fund falls into) will have to comply with human rights obligations.

It should be noted that a public authority or emanation of the State can have a very wide meaning in law and may cover privatized utilities companies (see Case C-188/89 Foster v British Gas [1990]3 ALL ER 897 and Griffin v South West Water Services Ltd [1995] IRLR 15) and other private contractors delivering public services.

This is not the first time that I have written about private security companies falling foul foul of human rights laws. In a previous Blog (Private Enterprise or Public Service? published on 1 March 2019), I wrote about the private company, Sodexho falling foul of the Human Rights Act 1998 in relation to the treatment of female prisoners at the privately run Peterborough Prison (see the recent English High Court judgement: Between LW; Samantha Faulder; KT; MC v 1) Sodexho Limited and 2) Minister of Justice[2019] EWHC 367).

A link to the story as reported by Sky News about the Fund’s decision to divest its 2.3% stake in G4S can be found below:

http://news.sky.com/story/g4s-blacklisted-by-top-fund-over-human-rights-risk-11861134