Hate crime?

Photo by Sharon McCutcheon on Unsplash

A famous saying about freedom of speech is often (rightly or wrongly) attributed to the eighteenth century French philosopher, Voltaire (François-Marie Aroue):

‘I disapprove of what you say, but will defend to the death your right to say it.’

Voltaire’s remark is, however, not without its problems. Freedom of speech is a contested concept. There’s no such thing as the right (in law) to say anything you like. The European Convention on Human Rights does, of course, recognise the right to freedom of expression in terms of Article 10, but European countries that are signatories to the Convention can restrict this right – quite legitimately.

Recently, in 2019, the European Court of Human Rights made it very clear that Holocaust denial is not a legitimate expression of free speech (see Pastörs v Germany ECHR 331 (2019)).

That said, the ability by signatory countries to restrict Article 10 rights are subject to very rigorous safeguards:

  • it must be prescribed by or in accordance with the law;
  • it must be necessary in a democratic society;
  • it is in pursuit of one or more legitimate aims specified in the relevant Article [of the Convention];
  • it must be proportionate.

Even in the United States of America, where lots of unpalatable things are tolerated under the free speech provisions of the First Amendment to the Constitution, there are limits (see the Miller Test formulated by the US Supreme Court in Miller v California 413 US 15 (1973)).

Our very own Miller case

In the various legal jurisdictions of the United Kingdom, there is also such a thing as hate speech (a criminal offence). No one is pretending that freedom of speech is an area of the law which is clear cut and unambiguous. It can be minefield and deciding what is legitimate (but perhaps disagreeable or offensive) expressions of free speech from hate speech can be extremely problematic.

We have just been reminded of this fact by a case which has just been decided by the English High Court.

Harry Miller, who is a former Police officer himself, was subject to Police scrutiny because he had posted a number of Tweets about proposed reforms to the Gender Recognition Act 2004. Let us just say that Mr Miller is clearly not in favour of changes to the legislation which would liberalise this area of the law e.g. by permitting individuals to decide their chosen gender by way of self-identification.

Someone complained about Mr Miller’s Tweets and the Police visited him at his work-place to discuss the matter. He was issued with a warning that his remarks could constitute a hate speech incident, but significantly the officers stated that no crime had been committed. This warning was issued to Miller in terms of the Hate Crime Operational Guidance 2014 (HCOG) issued by the College of Policing.

Mr Miller was not prepared to let this matter rest as he was strongly of the opinion that his right to freedom of expression had been violated by the actions of the Police.

He appealed to Humberside Police’s Appeals Body, but the appeal was rejected in June 2019. Mr Miller then commenced an action for judicial review of the actions of the Police.

Mr Justice Knowles sitting in the English High Court agreed with Mr Miller (see Harry Miller v (1) The College of Policing (2) The Chief Constable of Humberside [2020] EWHC 225 (Admin)). It is perhaps highly significant that Knowles J prefaced his ruling with a reference to the unpublished introduction to George Orwell’s celebrated novel, Animal Farm:

“If liberty means anything at all, it means the right to tell people what they do not want to hear.”

His Honour went on to highlight the remarks of Lord Justice Sedley in Redmond-Bate v Director of Public Prosecutions (1999) 7 BHRC 375:

Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative … Freedom only to speak inoffensively is not worth having …

It was also noted that Lord Bingham in R v Shayler [2003] 1 AC 247 had stated:

The reasons why the right to free expression is regarded as fundamental are familiar, but merit brief restatement in the present context. Modern democratic government means government of the people by the people for the people. But there can be no government by the people if they are ignorant of the issues to be resolved, the arguments for and against different solutions and the facts underlying those arguments. The business of government is not an activity about which only those professionally engaged are entitled to receive information and express opinions. It is, or should be, a participatory process. But there can be no assurance that government is carried out for the people unless the facts are made known, the issues publicly ventilated …”.

A subtle judgement?

It is important to understand that the judgement issued by Knowles J is one of considerable subtlety and it is not giving the green light to people to say what they want – even if this would cause offence.

There are still limits to freedom of speech and expression. Critically, Knowles J rejected Mr Miller’s very broad challenge that his human rights in terms of Article 10 of the European Convention had been violated merely because the Police had recorded and classified the matter as a non hate crime incident.

Such measures are necessary in a democratic society (and supported by a wealth of evidence) because, amongst other things, they can:

  • provide evidence of a person’s motivation for subsequent hate crimes;
  • provide context to what divides the cohesion of communities when hate incidents take place and how the Police can deal with these matters more effectively; and
  • prevent escalation of crime particularly with school children who might be aware of the seriousness and consequences of committing hate incidents, recording of such behaviour can be a very effective educational tool.

Knowles J found in favour of Mr Miller on the basis of his narrower challenge to the Police actions. This part of Miller’s legal action could be summed up in the following terms:

He [Miller] contends that the combination of the recording of his tweets as a non-crime hate incident under HCOG; PC Gul going to his workplace to speak to him about them; their subsequent conversation in which, at a minimum, PC Gul warned him of the risk of a criminal prosecution if he continued to tweet; and the Claimant’s subsequent dealings with the police in which he was again warned about criminal prosecution, interfered with his rights under Article 10(1) in a manner which was unlawful.

In upholding part of Miller’s challenge on the narrower grounds, Knowles J explained his reasoning:

There was not a shred of evidence that the Claimant was at risk of committing a criminal offence. The effect of the police turning up at his place of work because of his political opinions must not be underestimated. To do so would be to undervalue a cardinal democratic freedom. In this country we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society.

His Honour concluded by stating that:

“… the police’s treatment of the Claimant thereafter disproportionately interfered with his right of freedom of expression, which is an essential component of democracy for all of the reasons I explained at the beginning of this judgment.”

A link to the judgement in Harry Miller v (1) The College of Policing (2) The Chief Constable of Humberside [2020] EWHC 225 (Admin) can be found below:

https://www.judiciary.uk/wp-content/uploads/2020/02/miller-v-college-of-police-judgment.pdf

A link to an article in The Guardian can be found below:

https://www.theguardian.com/society/2020/feb/14/transgender-tweet-police-acted-unlawfully

Conclusion

Proposals to liberalise the Gender Recognition Act 2004 are, undoubtedly, causing heated debate and much controversy across the United Kingdom. There are strong opinions on both sides of this debate and Knowles J acknowledged as much in the Miller case:

The Claimant’s Tweets were, for the most part, either opaque, profane, or unsophisticated. That does not rob them of the protection of Article 10(1). I am quite clear that they were expressions of opinion on a topic of current controversy, namely gender recognition. Unsubtle though they were, the Claimant expressed views which are congruent with the views of a number of respected academics who hold gender-critical views and do so for profound socio-philosophical reasons. This conclusion is reinforced by Ms Ginsberg’s evidence [CEO of Index on Censorship] which shows that many other people hold concerns similar to those held by the Claimant.”

This case is, however, not a green light for people to say what they like – no matter how offensive their remarks may be. Freedom of speech and expression carry responsibilities and people should be mindful of this. That said, cases which have at their centre arguments over freedom of expression will turn on their facts. It is useful to realise that legitimate expressions of free speech will be protected and upheld. It’s a question of balance, but this is easier said than done – much more difficult to achieve in practice.

Related Blog Articles:

https://seancrossansscotslaw.com/2019/12/21/say-what-you-want/

https://seancrossansscotslaw.com/2019/10/08/holocaust-denial/

https://seancrossansscotslaw.com/2019/09/26/im-not-your-daddy/

https://seancrossansscotslaw.com/2019/07/17/whos-the-daddy/

https://seancrossansscotslaw.com/2019/06/25/gender-neutral/

Copyright Seán J Crossan, 16 February 2020

The only gay in the village?

The colours of Pride

Photo by Steve Johnson on Unsplash

The only gay in the village became a household phrase in the UK thanks to the long running Little Britain sitcom TV and radio series (which has been broadcast by the BBC since 2000).

Daffyd Thomas claimed to be the only gay person in a small, Welsh village (actually he wasn’t), but in some respects his catchphrase reflected the isolation that many people in the LGBTI communities experience – either in their personal or professional lives.

The reason that I mention this topic is because, last week, the LGBTI campaigning organisation, Stonewall, published research about the most inclusive LGBTI friendly employers in the UK (Newcastle City Council topped the list). That said, for many LGBTI employees, an inclusive work place is still a far off dream.

Please find a link to a story on the Sky News website about one employee’s decision to hide his LGBTI identity from his colleagues:

https://news.sky.com/story/i-felt-i-had-to-hide-my-lgbt-identity-at-work-so-i-decided-to-do-something-about-it-11920174

Links to Stonewall’s findings (and a Sky News article) can be found below:

https://www.stonewall.org.uk/system/files/2020_top_100_report.pdf

https://news.sky.com/story/stonewall-reveals-its-most-lgbt-inclusive-employers-11919950

A person’s sexual orientation is, of course, a protected characteristic in terms of Section 12 of the Equality Act 2010. Such individuals should not be subjected to direct discrimination (Section 13); indirect discrimination (Section 19); harassment (Section 26); and victimisation (Section 27).

Many years ago, I remember teaching a group of students who were studying for a professional qualification. Many of them were employed by recruitment agencies and it was my task to highlight the relevant provisions of discrimination law at that time. One evening, we had a discussion about discrimination on the grounds of a person’s sexual orientation – particularly in the context of the ban on gay and lesbian people serving in the UK Armed Forces. This ban would eventually be lifted in 2000 – following the decision of the European Court of Human Rights in Smith and Grady v UK (1999) 29 EHRR 493.

One of the students asked me what protection existed for gay and lesbian people in employment law generally. Very little was my response. Before the introduction of the Scotland Act 1998 and the Human Rights Act 1998, the work place could be very hostile for LGBTI people (see Macdonald v Lord Advocate; Pearce v Governing Body of Mayfield School [2003] UKHL 34).

Yes, admittedly, the UK was (and still is in spite of Brexit) a signatory to the European Convention on Human Rights. In particular, Article 8 of the Convention recognises the right to family and private life. It was this Article which was used to overturn extremely restrictive laws on same sex relationships which existed in Scotland, Northern Ireland, the Isle of Man and the Channel Islands. Reinforcing Article 8 is Article 14 of the Convention is Article 14 which contains a general prohibition on discrimination.

The late 1960s are often referred to as the key period of the start of gay liberation in the UK with the passing of the Sexual Offences Act 1967 which decriminalised homosexual relationships between consenting adults (aged 21 or over) and as long as such conduct was in private. What is often overlooked is that the 1967 Act applied to England and Wales only. The picture was very different (and would remain so for over a decade – sometimes longer) in various parts of the British Isles.

Homosexual relationships were decriminalised in Scotland in 1980; in Northern Ireland in 1982; the UK Crown Dependency of Guernsey in 1983; the UK Crown Dependency of Jersey in 1990; and the UK Crown Dependency of the Isle of Man in 1994. The age of consent was set at 21 for all these parts of the British Isles. Things have since moved on.

In the last 20 years, the influence of the European Union has been particularly profound regarding measures to combat sexual orientation discrimination.

In 1999, as a result of the Treaty of Amsterdam, the EU adopted two Directives which considerably expanded the scope of its anti-discrimination laws (the Racial Equality Directive (2000/43/EC) and the Employment Equality Directive (2000/78/EC). Of particular interest to this discussion is the Employment Equality Directive which made it unlawful to discriminate against a person on grounds of sexual orientation. Admittedly, this Directive was limited because it covered the areas of employment and vocational training only.

It did not extend to the provision of goods and services, so had the case of Bull and Another v Hall and Another [2013] UKSC 73 had occurred when the Directive was transposed into UK domestic law, the same sex couple who were refused a double room at the guest house in Cornwall would not have been successful in their claim for sexual orientation discrimination.

On 1 December 2003, the Employment Equality Directive would eventually become part of UK law in the form of the Employment Equality (Sexual Orientation) Regulations 2003. The Regulations were repealed and replaced by the relevant provisions of the Equality Act 2010 (which came into force on 1 October 2010).

Shortly afterwards, the Civil Partnerships Act 2004 would give legal recognition (and protection) to gay and lesbian people who chose to enter such relationships. These rights would be further underpinned by permitting same sex couples to marry (in England and Wales in 2013 and in Scotland in 2014). Currently, Northern Ireland is the only part of the UK not to permit same sex marriage – although this will change from next week onwards (see link below):

Same-sex marriage: Couple ‘excited but nervous’ to become first in NI

Robyn Peoples and Sharni Edwards will celebrate their wedding on Tuesday in Carrickfergus.

This change to the law has come about as a result of the introduction of the Northern Ireland (Executive Formation etc) Act 2019 passed by the UK Parliament (in the absence of of a functioning devolved government for nearly the last 3 years).

The Treaty on the Functioning of the European Union (TFEU) is also worthy of comment. Article 19 prohibits discrimination by reason of a person’s sexual orientation and, notably, this provision is hardwired into UK law by way of the Equality Act 2010. Article 19 extended legal protection to gay and lesbian people more generally – over and above the limited areas of employment and vocational training which the Treaty of Amsterdam and the Employment Equality Directive had originally addressed.

The EU Charter of Fundamental Rights (although Poland and the UK had negotiated some opt-outs) contained significant provisions on equality and non-discrimination, namely, Article 20 (equality before the law) and Article 21 (the principle of non-discrimination).

Finally, if employers want to do more to create an inclusive work place, they could start by using Stonewall’s inclusive toolkits (see link below):

https://www.stonewall.org.uk/best-practice-toolkits-and-resources

Conclusion

As a society, the UK has certainly moved on from the overtly hostile attitudes towards members of the LGBTI communities over the last 50 years or so. The legal rights and protections which LGBTI people now enjoy would have seemed unthinkable in 1967 when a limited form of tolerance was ushered in as a result of the Sexual Offences Act (in England and Wales). More recently, the UK and Scottish Governments have issued pardons to those individuals who were convicted of criminal offences under the previous laws (in 2017: the Policing and Crime Act 2017 in England and Wales (known as Turing’s Law after Alan Turing, the Enigma Code Breaker) and, in 2018, the Scottish Parliament followed suit by passing the Historical Sexual Offences (Pardons and Disregards) (Scotland) Act 2018).

Postscript

On Friday 7 February 2020, Phillip Schofield, the British TV celebrity announced that he was gay at the age of 57. Mr Schofield is married with 2 children and had lived a heterosexual life – until now. He likened hiding his sexual orientation to being in prison and being consumed by it.

A link to the story on the Sky News website can be found below:

http://news.sky.com/story/phillip-schofield-comes-out-as-gay-11928156

If anyone doubts that homophobia still exists in the UK, please see the story below:

Homophobic graffiti daubed on Polo Lounge entrance in Glasgow

Police have launched an investigation after they were alerted to the vandalism at the Polo Lounge.

Related Blog Articles:

https://seancrossansscotslaw.com/2020/01/04/pansexual/

https://seancrossansscotslaw.com/2019/12/31/civil-partner-i-do/

https://seancrossansscotslaw.com/2019/12/08/different-standards/

https://seancrossansscotslaw.com/2019/12/06/biased-blood/

https://seancrossansscotslaw.com/2019/10/04/a-very-civil-partnership/

https://seancrossansscotslaw.com/2019/02/20/love-and-marriage/

https://seancrossansscotslaw.com/2019/02/08/the-gay-cake-row/

Copyright Seán J Crossan, 15 February 2020

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:

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

Copyright Seán J Crossan, 3 December 2019

Holocaust denial

Photo by Alexey Soucho on Unsplash

To deny that the Holocaust ever happened (i.e. the murder of 6 million Jews – at least – by the Nazi regime) is not and never can be a protected human right or a genuinely held philosophical belief.

Such a belief (and its expression) is not protected in terms of Article 10 of the European Convention on Human Rights (which was directly implemented into Scots Law via the Scotland Act 1998 and the Human Rights Act 1998). Article 10 protects the individual’s right to freedom of expression.

Freedom of expression is not an unlimited right and certain forms of expression which constitute, for example, hate speech will not be protected by the European Convention.

The European Court of Human Rights in Strasbourg, France has just issued its ruling in this regard in the case of Pastörs v Germany ECHR 331 (2019).

Pastörs is a former member of the German regional parliament or Land for Mecklenburg-Western Pomerania. He was sat in the parliament for the far right National Democratic Party (NPD). He made an inflammatory speech on 28 January 2010 about the Holocaust using expressions such:

the so-called Holocaust is being used for political and commercial purposes”.

He also stated during the speech:

Since the end of the Second World War, Germans have been exposed to an endless barrage of criticism and propagandistic lies – cultivated in a dishonest manner primarily by representatives of the so-called democratic parties, ladies and gentlemen. Also, the event that you organised here in the castle yesterday was nothing more than you imposing your Auschwitz projections onto the German people in a manner that is both cunning and brutal. You are hoping, ladies and gentlemen, for the triumph of lies over truth.”

The speech by Pastörs was particularly insensitive and offensive given that Holocaust Remembrance Day had been commemorated the day previously.

Pastörs was subsequently convicted by a German court of criminal offences i.e. “violating the memory of the dead and of the intentional defamation of the Jewish people”. This conviction was upheld on appeal.

Pastörs then lodged a case to the European Court of Human Rights on the basis that his Article 10 rights and his Article 6 rights (the right to a fair trial) had been violated by the German legal authorities.

The Court has now found that Pastörs’ legal challenge under Article 10 “was manifestly ill-founded and had to be rejected”. On the matter of the allegation that his Article 6 rights had been violated, the judges by 4 votes to 3 rejected this argument.

The judgement can be appealed to the Grand Chamber of the European Court of Human Rights.

If so, it will be interesting to see how the judges respond.

As things stand presently, this judgement confirms that freedom of expression and speech are not unlimited rights.

A photograph of the press release from the ECtHR regarding the Pastörs judgement can be found below:

A link to the actual judgement of the court can be found below:

https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22pastors%22],%22itemid%22:[%22001-196148%22]}

Copyright Seán J Crossan, 8 October 2019

I’m a prisoner, I want to vote!

Photo by kyryll ushakov on Unsplash

In one of my first blogs (The problem with human rights … published on 1 February 2019), I discussed the problematic nature of this area – especially when individuals who have been less than law abiding, upright citizens are attempting to argue that they deserve to have their human rights respected.

In that previous blog, I focused on people such as John Hirst (convicted for manslaughter in England); Abu Qatada (a radical Islamic preacher who promoted Jihad); and Anders Brevik (the Norwegian mass murderer); who had all pursued legal actions in terms of the European Convention on Human Rights.

See:

  •  Hirst v United Kingdom (No. 2) (2005) ECHR 681
  •  Othman (Abu Qatada) vUK (Application No. 8139/09) 12 January 2012
  • Hansen (formerly known as Anders Breivik) v Norway (Application No. 48852/17) 26 June 2018)

As I often remark to my students, people such as those listed above are not ideal ‘poster boys’ if you were going to run a marketing campaign to promote greater awareness of human rights in Scotland.

This year (in Scotland) marks the twentieth anniversary of the implementation of the European Convention via the Scotland Act 1998 (in 2000, the Convention was further implemented across the UK as a result of the introduction of the Human Rights Act 1998).

I doubt very much that supporters of the system of human rights protection will wish to dwell too long on those difficult cases involving murderers, terrorists, paedophiles etc. It rather tends to undermine the whole basis of human rights or, in other words, it’s a very difficult sell.

Yet the difficult cases keep on coming and certainly make this area a constant source of fascinating debate and argument about the rights and wrongs of human rights. They also tend to drive home very forcefully the notion that human rights is a contested concept. Not everyone agrees what should be protected or who should be protected.

In 2000, the former Scottish judge, Lord McCluskey was highly critical of the introduction of human rights to the legal system. As far back as 1986, he had made the following remarks (in his Reith Lectures) about Canada implementing its Charter of Rights and Freedoms, which was based on the European Convention. In his opinion, this would lead to:

a field day for crackpots, a pain in the neck for judges and legislators, and a goldmine for lawyers.

His Lordship would make the point that the above remarks applied equally to the then Labour Government’s decision to implement the European Convention directly into the legal systems of the United Kingdom.

Whether Lord McCluskey came to regret making these remarks publicly, we can only speculate. They did, however, come back to haunt him when counsel for a number of appellants before the Appeal Court of the High Court of Justiciary argued that Lord McCluskey (and his fellow judges) should be removed from further participation in an appeal which relied very heavily on human rights arguments, in particular, the right to a fair trial under Article 6 of the Convention (see Hoekstra & Others v Her Majesty’s Advocate [2000] ScotHC 11).

John Hirst

When Andrew Neil, the well known journalist, questioned John Hirst about prisoners being given the right to vote in elections being held in the UK, he was less than subtle when he ran through Hirst’s charge sheet on the BBC’s Daily Politics Show in 2010.

Even instinctive supporters of human rights would have found it very difficult (emotionally speaking) to sympathise with Hirst’s position that the right to vote is a human right and this should be extended to those serving prison sentences.

If you want to be reminded of how awkward an interview this was, please click on the link below:

A persistent problem

The spark ignited by John Hirst smoulders on. Amazingly, we are still talking about the issue in 2019. Last month, the European Court of Human Rights (not to be confused with the EU’s Court of Justice), ruled against the UK for failure to implement its earlier decisions which came down firmly on the side of prisoners. Although the UK was found to be in breach of the European Convention, the European Court of Human Rights decided not to award compensation to those prisoners who brought the claim.

The case in question is Miller & Others v UK 11 April 2019 (Application No 70571/14) and the European Court of Human Rights is effectively declaring that UK electoral legislation does not comply with the European Convention.

Article 3 of Protocol No. 1 of the European Convention states that the signatories or High Contracting Parties (i.e. those countries, including the UK, which have signed the Convention):

… undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

All of the prisoners involved in this application were alleging that the UK was in breach of the above provision when they were denied the right to vote in one or more of the following elections: the European Parliament elections on 22 May 2014; the elections to the Scottish Parliament on 5 May 2016; and the UK General Election on 8 June 2017. 

Section 3 of the Representation of the People Act 1983 is the relevant legislation in this area. It states that:

A convicted person during the time that he is detained in a penal institution in pursuance of his sentence … is legally incapable of voting at any parliamentary or local government election.”

The above provision is known colloquially as the ‘blanket ban’ i.e. anyone convicted of a crime and imprisoned automatically loses (or forfeits) the right to vote. This is part of the convicted person’s punishment.

A link to the European Court’s judgement in Miller & Others v UK can be found below:

https://hudoc.echr.coe.int/tur#%22itemid%22:%5B%22001-192216%22%5D

As the supreme legislative body of the United Kingdom, it is up to the Westminster Parliament to rectify this situation – if it so chooses.

A political fudge

Since John Hirst won his case in 2005, successive UK Governments and Parliaments have fudged the issue. This whole area is a political hot potato because many politicians (irrespective of Party allegiance) are well aware of the dangers of standing up for the rights of prisoners. If advertising executives find it difficult to promote human rights using the inhabitants of UK prisons as exemplars, think how much more difficult it would be for politicians. They are extremely risk averse in these days of electoral volatility and they most certainly do not want to put their heads above the parapet to campaign for the rights of prisoners to be upheld. I suspect that many politicians would rather give a straight answer regarding their position raising taxes or cutting vital public services in order to avoid this particular, poisoned chalice.

Most politicians seeking re-election would not wish their opponents to level an accusation against them that they were soft on crime. Expect this story to keep on running.

Conclusion 

We have been well aware for some time that the so called blanket ban on serving prisoners being denied the right to vote is a breach of the European Convention. Put simply, this provision in the Representation of the People Act 1983 is incompatible with the UK’s obligation to uphold and protect human rights.

The consequences of declaring UK parliamentary legislation incompatible with the European Convention on Human Rights can be fully appreciated if we refer to the UK Supreme Court’s decision in R (Nicklinson) 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.”

Postscript

Significantly, on 2 August 2019, Michael Russell MSP, the Scottish Cabinet Secretary for Constitutional Affairs, passed what is known as a remedial order to allow prisoners whose domicile (or habitual residence) – when not in prison of course – is within the Scottish parliamentary constituency of Shetland.

Why?

A by-election is taking place because Tavish Scott, the Member of the Scottish Parliament for the Shetland constituency resigned his parliamentary seat. The remedial order is a temporary measure which will remove any accusation, for the time being, that the Scottish Government is in breach of human rights laws by depriving prisoners of the right to vote. This order by the Scottish Government is the prelude to a permanent change in the law.

Again, it’s worth emphasising that the Westminster Parliament and the UK Government can ignore declarations of incompatibility made by the courts in relation to laws which fail to comply with human rights obligations. The Scottish Government and Parliament are in a completely different legal position: all Scottish legislation and policies must comply with human rights laws.

A link to a story about the remedial order on the BBC website can be found below:

https://www.bbc.co.uk/news/uk-scotland-scotland-politics-49195360

Copyright Seán J Crossan, 1 May and 2 August 2019

The problem with human rights …

Photo by Samantha Sophia on Unsplash

It was perhaps appropriate this week that I began a number of lectures about human rights in Scotland. You might ask: why this is appropriate? Well, on Sunday 27 January 2019, we had the annual Holocaust Memorial Day. This important date commemorates the liberation of Auschwitz on 27 January 1945, the Nazi extermination camp, by the armed forces of the former Soviet Union (the Red Army).

It was at this point and with the final defeat of Nazi Germany in May 1945,that the real horrors of Hitler’s regime were fully exposed throughout Europe and the rest of the world.

The anniversary was especially important this week when several British media outlets (the BBC and The Guardian) highlighted a poll conducted on behalf of the Holocaust Memorial Day Trust* which revealed that 1 in 20 British people did not believe that the Holocaust had actually taken place; 8% of adults questioned believed that the extent of the killings had been exaggerated; and over 50% of respondents could not provide the correct figure for the number of Jews killed by the Nazis (6 million in case you didn’t know). As Harriet Sherwood in The Guardian pointed out: the findings of this research closely “echoes the findings of a survey** carried out in seven European countries in November [2018] (“One in 20 Britons does not believe that the Holocaust took place, poll finds” by Harriet Sherwood writing in The Guardian on 27 January 2019)

* The Holocaust Memorial Trust:

https://www.hmd.org.uk/news/we-release-research-to-mark-holocaust-memorial-day-2019/

** CNN (2018) A Shadow over Europe:

https://edition.cnn.com/interactive/2018/11/europe/antisemitism-poll-2018-intl/

From 1945 onwards, particularly amongst Western European nations and the USA and Canada, there was a renewed emphasis about protecting basic human rights and democratic freedoms. The Superpower standoff (‘The Cold War’) between the USA and the USSR was also portrayed (in the West anyway) about a greater struggle to protect freedom and democracy. The United Nations’ Universal Declaration of Human Rights (1948) and the European Convention on Human Rights (1950) demonstrated a renewed desire on the part of the international community to protect human rights.

The UK, Scotland and Human Rights

Human rights legislation is now a major source of law in Scotland and the UK. In 1999, the Scotland Act 1998 came into force and the new Scottish Parliament was obligated to pass laws which complied with international human rights standards. A year later, in October 2000, the Human Rights Act 1998 came into operation further reinforcing the United Kingdom’s commitment to the protection of human rights.

In 1950, the UK became one of the first signatories to the European Convention on Human Rights, but it chose not to implement this Treaty directly into UK domestic legislation. The Westminster Parliament could have passed an Act to enshrine human rights protection at the heart of the British constitutional and legal framework, but chose not to do this. It was not until the election of the Labour Government of Tony Blair in May 1997, that there was a clear commitment to pass legislation in this regard.

This meant that, for the first time, ordinary people could enforce the European Convention in the courts of the United Kingdom against the British State and its institutions. Prior to the Scotland Act 1998 and the Human Rights Act 1998, people in the United Kingdom had to go the European Court of Human Rights (based in the French City of Strasbourg) if they wanted to enforce their human rights.

Since 1966, the UK had accepted the compulsory jurisdiction of the European Court of Human Rights, but individuals who used the services of this Court could often expect to wait for 5 years (on average) to have their cases heard and determined. The Government of Prime Minister Tony Blair equated the direct implementation of aspects of the European Convention into domestic law as an example of bringing human rights home.

In Scotland, we’re approaching the twentieth anniversary of the European Convention becoming part of Scots Law and we often take things for granted.

 Why are human rights so problematic?

Controversy No 1

Should human rights be universal i.e. should everyone benefit from them?

I often pose the following scenario to students:

What if Adolf Hitler had been captured by the Russians when Berlin fell in 1945, do you think he should have been put on trial like the other top Nazis at Nuremberg?

Did Hitler have a right to a fair trial?

I remember reading Professor Richard Overy’s superb book “Interrogations: the Nazi Elite in Allied Hands, 1945” (Allen Lane: 2000), which highlighted the disagreement between the Allied Powers about how best to deal with Nazi war criminals. The then UK Prime Minister, Winston Churchill would have summarily executed captured Nazi leaders (and lower ranking functionaries) arguing that the law of the outlaw should prevail (or at the very least Parliament would pass an act of Attainder). These individuals, by behaving atrociously towards their fellow human beings, had given up any claim to civilised treatment themselves. Franklin D Roosevelt, the then US President and Josef Stalin, then Chairman of the Communist Party of the USSR argued successfully for the creation of an international judicial tribunal to prosecute those accused of war crimes.

In this respect, the Nuremberg War Crimes Tribunal (as it became popularly known) was the forerunner of the modern International Criminal Court.

Something else that is worthy of consideration: in 1961-62, the State of Israel put Adolf Eichmann, one of the principal architects of the Holocaust, on trial for crimes against humanity.

Many of the first citizens of the State of Israel were Holocaust survivors or had family members who perished at the hands of the Nazis.

Yet … the Israelis still felt it was important to put this man on trial publicly so that the whole world would learn about the true extent of the evil nature of Hitler’s Third Reich.

Eichmann was captured by Mossad agents (the Israeli Foreign Intelligence Service) in Argentina (where he had fled, by way of Austria, after the Second World War) and he was taken back to Israel to face trial.

It might be argued that it would have been easier and more convenient for Mossad to assassinate Eichmann in Argentina or simply make him ‘disappear’

Do “monsters” have human rights? Hannah Arendt, the German Jewish Political Theorist, referred to Eichmann not as a “monster” but as someone who represented the “banality of evil” (Eichmann in Jerusalem: A Report on the Banality of Evil published by Viking, 1963)).

Some footage of the Eichamann Trial from Youtube can be viewed by accessing the following link:

http://www.bing.com/videos/search?q=adolf+eichmann&FORM=HDRSC3#view=detail&mid=AAFFED8CDB8ED628A674AAFFED8CDB8ED628A674

Even to this day, the controversy of who should benefit from human rights persists: many of the cases dealing with alleged human rights abuses involve murderers, paedophiles, terrorists and rapists.

  • Should the law whereby prisoners serving sentences in UK jails forfeit the right to vote in British elections be abolished? (see Hirst v United Kingdom (No. 2) (2005) ECHR 681).
  • Should a murderer who dismembered his victim have the right to complain about the prison authorities opening his private correspondence with his legal advisers? (see Beggs v The Scottish Ministers [2007] UKHL 3)
  • Should prisoners have the right to claim damages from the Scottish Government for failure to provide modern and hygienic toilet facilities? (see Napier v The Scottish Ministers [2005] CSIH16)
  • Should a radical Islamic preacher promoting or condoning Jihad be deported from the UK on the basis of information obtained from terrorist suspects who were tortured? (see Othman (Abu Qatada) v UK (Application No. 8139/09) 12 January 2012)
  • Should a mass murderer responsible for the deaths of over 70 people in Norway be entitled to complain about the inhumane and degrading conditions of his solitary confinement? (see Hansen (formerly known as Anders Breivik) v Norway (Application No. 48852/17) 26 June 2018)

Opponents of the European Convention will, of course, highlight cases such as the above to attack the principle that human rights should and must have universal application.  Why should individuals who threaten the safety and security of the community benefit from the protection of human rights? In 2010, the journalist, Andrew Neill (on The Daily Politics Show) famously challenged John Hirst that he had shown no respect whatsoever for the human rights of the woman that he killed:

https://youtu.be/vjBEcLvPTAA

Supporters of human rights, on the other hand, will have to grit their teeth and argue that decent treatment of individuals such as William Beggs (the “limbs in the loch” murderer) and the Norwegian mass murderer, formerly known as Anders Breivik can and should be justified. They will make the argument that civilised treatment of vile individuals is a guarantee that those of us who are good and decent members of society will also be treated fairly by the State and its agents.

Controversy No 2

Another area which is often a source of discord in relation to the protection of human rights is that there is no universal definition of human rights.

Over the years, issues such as abortion, abolition of corporal punishment for children, access to IVF, euthanasia and same sex marriage have sharply divided opinion.

Advocates of greater abortion rights in Northern Ireland have, for example, argued (only partially successfully) that the Province’s more restrictive Abortion laws are a breach of human rights (see In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland)Reference by the Court of Appeal in Northern Ireland pursuant to Paragraph 33 of Schedule 10 to the Northern Ireland Act 1998 (Abortion) (Northern Ireland)[2018] UKSC 27).

This is not the end of the debate about Northern Ireland’s abortion law as the following BBC illustrates:

Abortion law: Abortion due to disability ‘prohibited’

Sarah Ewart is trying to change the law with a case based on her personal experience of abortion.

A question of balance?

Determining whether a person’s human rights have been breached can also involve a delicate balancing act as two judgements before the UK Supreme Court this week (week beginning 28 January 2019) have demonstrated:

Case 1

In the matter of an application by Lorraine Gallagher for Judicial Review (Northern Ireland) R (on the application of P, G and W) (Respondents) v Secretary of State for the Home Department and another (Appellants) R (on the application of P) (Appellant) v Secretary of State for the Home Department and others (Respondents) [2019] UKSC 3

Persons convicted of relatively minor criminal offences e.g. not wearing a seatbelt; committing a minor assault; stealing a sandwich; or stealing a book priced 99p should not have to declare these convictions to prospective employers and thus adversely affect their future employment. The current requirement in law for disclosure of relatively minor convictions was a breach of Article 8 of the European Convention on Human Rights (right to a private and family life). 

Case 2 

R (on the application of Hallam) v Secretary of State for Justice R (on the application of Nealon) v Secretary of State for Justice [2019] UKSC 2

Hallam and Nealon had been imprisoned (wrongly as it turned out) for 7 and 17 years respectively. Their convictions were quashed (set aside) by the English Court of Appeal. They both sought to claim compensation for wrongful imprisonment. They were refused compensation by the UK Secretary State of Justice who had made the decision (in terms of Section 133 of the Criminal Justice Act 1988) that the new evidence which had led to their release from prison did not demonstrate beyond reasonable doubt that they had not committed the offences. The new evidence made the men’s convictions merely unsafe. The UK Supreme Court by a majority of 5 to 2 decided that the failure of the Justice Secretary to grant compensation in terms of Section 133 of the Act did not breach the presumption of innocence in terms of Article 6 of the European Convention (the right to a fair trial). 

In a third case this week, the European Court of Human Rights stated that there was no breach of Article 8 of the European Convention in respect of a man who was being compelled to take a paternity test. His right to a private life had to be weighed against the rights of the other party who wished to clarify her family origins (see Mifsud v Malta 29 January 2019 (Application No. 62257/15)).

Controversy No. 3

Another bone of contention for opponents of human rights legislation is that it can give too much discretion to (unelected) judges to attack or strike down laws which are deemed not to comply with those parts of the European Convention which have been implemented by the UK. In the febrile atmosphere of Brexit, judges are now acutely aware that they can and will be accused of meddling in politics (see R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5).

When viewing this argument through the prism of Westminster legislation it soon becomes apparent that this is factually incorrect 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: take note prisoners in UK jails who are still waiting to be given the vote – despite the decision in Hirst v United Kingdom (No 2) (2005) ECHR 681.

The Guardian newspaper did report (in December 2017) that the UK Government had reached a compromise with the Council of Europe which would allow a small number of prisoners to vote:

https://www.theguardian.com/politics/2017/dec/07/council-of-europe-accepts-uk-compromise-on-prisoner-voting-rights

Hardly, the resounding victory that John Hirst would have hoped for.

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) 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.”

Scottish Parliamentary Legislation

Admittedly, things are rather different with Scottish Parliamentary legislation which fails to comply with either the Scotland Act 1998 or the Human Rights Act 1998. As a legislature, which derives its authority from Westminster, all Scottish laws must usually be compliant with human rights. This is true for all legislative acts of the devolved institutions throughout the UK. 

In 2016, the Scottish Government experienced an embarrassing defeat in the UK Supreme Court when parts of its flagship Named Person scheme was found to breach Article 8 of the European Convention on Human Rights (Right to a privateand family life)(see The Christian Institute and others The Lord Advocate [2016] UKSC 51). The Named Person scheme had been introduced as part of the the Children and Young People (Scotland) Act 2014. After the UK Supreme Court’s decision, the scheme could not proceed as originally intended by the Scottish Government. 

Conclusion

Human rights are undoubtedly problematic for the reasons discussed. As a colleague of mine said: “When emotion comes into the debate it is very difficult to arrive at a balanced judgement.” Yet if we deny that human rights are universal i.e. that only certain people deserve them, are we not on the slippery moral slope?

It is worth recalling that Nazi Germany’s call for a boycott of Jewish owned businesses, the Law for the Restoration of the Professional Civil Service of 1933 and the Nuremberg Decrees of 1935 was a clear statement of intent that some people in Germany (the Jews) were less equal than others. The Jewish community in Germany was gradually marginalised and disenfranchised as a result of these measures.

As Pastor Martin Niemöller*, a prominent opponent of the Nazis wrote:

“First they came for the socialists, and I did not speak out—because I was not a socialist.

Then they came for the trade unionists, and I did not speak out— because I was not a trade unionist.

Then they came for the Jews, and I did not speak out—because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

*Gerlach, Wolfgang – And the Witnesses were Silent: The Confessing Church and the Jews . Lincoln, Nebraska: University of Nebraska Press, 2000, p. 47.

These words might be worth remembering in this week of Holocaust Memorial Day 

We might also pause for a moment to look around the world and recognise the fact that we in the West enjoy rights that others can dream about:

‘Why I fled Saudi Arabia and sought asylum in the UK’

Two Saudis who sought asylum in the UK explain why they risked everything.

Saudi woman’s refugee campaign sparks online debate

After Rafah al-Qunun fled Saudi Arabia she turned to social media to campaign for asylum

Five things Saudi women still can’t do

So Saudi women can now drive and watch football, but as Megha Mohan reports, some things are still off limits.

Copyright Seán J Crossan, February 2019