The Future of Human Rights in the UK [1 ed.] 9781527505148, 9781443895132

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The Future of Human Rights in the UK

The Future of Human Rights in the UK Edited by

Claire-Michelle Smyth and Richard Lang

The Future of Human Rights in the UK Edited by Claire-Michelle Smyth and Richard Lang This book first published 2017 Cambridge Scholars Publishing Lady Stephenson Library, Newcastle upon Tyne, NE6 2PA, UK British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Copyright © 2017 by Claire-Michelle Smyth, Richard Lang and contributors All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner. ISBN (10): 1-4438-9513-X ISBN (13): 978-1-4438-9513-2

TABLE OF CONTENTS

Preface ...................................................................................................... viii List of Tables .............................................................................................. xi Chapter One ................................................................................................. 1 Introduction: The Future of Human Rights Fiona De Londras Chapter Two ................................................................................................ 4 The Human Rights Act in a Culture of Control Alan Greene Chapter Three ............................................................................................ 27 Images of Citizenship at Points of Rupture between the Citizen and the State: Cancellation of Citizenship in France and the UK Rachel Pougnet Chapter Four .............................................................................................. 50 The Future of the Right to Education in the UK: The Challenge of Anti-Radicalisation Measures David Barrett Chapter Five .............................................................................................. 71 Human Rights and the Right of Silence Hannah Quirk Chapter Six ................................................................................................ 92 Brexit and Human Rights –An Opportunity? Michelle Coleman Chapter Seven.......................................................................................... 111 The Business of Asylum Justice and the Future of Human Rights Jo Wilding

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Chapter Eight ........................................................................................... 131 Broadening the Rights of Stakeholders through a Restorative Justice approach to Crime: An Irish Perspective Darren McStravick Chapter Nine............................................................................................ 153 The Trade Union Act 2016 and Balloting for Industrial Action: Is the Further Restriction on the ‘Right To Strike’ in the United Kingdom a Flagrant Violation of European Convention Standards and a Step too Far for the Courts? Charles Barrow Chapter Ten ............................................................................................. 169 Social and Economic Rights in a Post-Neoliberal Society Claire-Michelle Smyth Chapter Eleven ........................................................................................ 189 The Future of Economic and Social Rights in the UK: Challenges, but also Opportunities Koldo Casla Chapter Twelve ....................................................................................... 207 Parental Responsibility, Vulnerable Parents and School Attendance Niall Williams Chapter Thirteen ...................................................................................... 230 The United Kingdom – Navigating the Choppy Waters of Surrogacy Mary O’Connor Chapter Fourteen ..................................................................................... 254 A Uniquely British Debate? The Relative Invisibility of the European Convention in the European Press Lieve Gies Chapter Fifteen ........................................................................................ 272 What will become of EU Laws on the UK Statute Book after Brexit? Victims’ Rights as a Case-Study Richard Lang

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Bibliography ............................................................................................ 297 Contributors ............................................................................................. 311

PREFACE

With the eight hundredth anniversary of the signing of Magna Carta having been commemorated in 2015, the time seemed right, if not overdue, for a stock take of the United Kingdom’s often fractious relationship with the idea, or ideal, of human rights. However, pressure for a stock take had been growing for some time. In the mid to late Noughties, serious thought started to be given in some quarters to the creation of something called a “British Bill of Rights”. Others wondered what a peculiarly British right might look like and why it would not be universal like all the others. In a Report entitled “A Bill of Rights for the UK?”, published by Parliament’s Joint Committee on Human Rights in 2008, reference was made to Australia, who, in drafting a new preamble to her constitution in 1999, had contemplated including the purported local value of “mateship”.1 The suggestion was perhaps sensibly dropped. It is not clear if enforcement or justiciability were ever discussed. Then, in 2010, came a new Home Secretary, Theresa May. Mrs May became a tireless opponent of the European Court of Human Rights which she felt was preventing her from deporting the radical Islamist preacher, Abu Qatada. Her party leader, the Prime Minister David Cameron, seemed equally annoyed with the same Court’s refusal, as he saw it, to let the UK pursue its historic policy of denying prisoners the vote. There was even talk, by serious journalists, about a case in which, so they said, foreign criminals had been allowed to stay in the country because of a cat. And while this may have produced mirth in some parts of the country, elsewhere people were taking these matters very seriously indeed. As a result of a referendum on 23 June 2016, the UK will bring to an end her membership of the European Union, a move which even the Supreme Court admits will lead to a substantial loss of rights, some of them admittedly outwith the scope of this book, but others very much within it.2 Mrs May, Strasbourg’s Nemesis, is now elevated to Prime Minister, her plans for the Convention on hold. But only for now.

 1

Joint Committee on Human Rights, A Bill of Rights for the UK? (2007–08, HL 165-I, HC 150-I) 34. 2 See R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.

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With the need for a stock take clear, a location was required. While Brighton might not immediately seem to be the obvious choice, the city does have a connection to the world of human rights. This has nothing to do with Sir Edward Marshall Hall KC, the renowned criminal barrister who lived at 30 Old Steine. A quick perusal of his career shows that he had little to do with the subject, except perhaps the right to a fair trial. His nickname, after all, was the Great Defender. But the city was the location of a Council of Europe “High Level Conference” in 2012 at which important procedural changes were agreed to the Convention regime, the resultant text still known as the Brighton Declaration. Our conference, also entitled The Future of Human Rights in the UK, was held on the Moulsecoomb campus of the University of Brighton on 10th November 2016. Contributors came from the length and breadth of the United Kingdom and from overseas. The topics discussed were many and varied, taking in the full gamut of rights from classic civil and political rights like the right to freedom of expression and the right to freedom of conscience, through to economic and social rights including the right to healthcare and the right to housing. Perhaps inevitably for the post 9/11 era, with its prioritization of “security”, and only a decade on from the deadly attack on London of 7 July 2005, there was much debate around the right to fair trial, with particular focus on constituent rights such as the right to silence and the right to legal aid. The quality of the contributions was extremely high, as we are sure the present tome–which brings together most of the papers given that day–will confirm. Apart from being an excellent read, we hope that it provokes debate, if not for another eight hundred years then at least for some time, and that it inspires further scholarship on these vital topics. Collectively, we would like to thank Christopher Matthews, Senior Research and Events Administrator at Brighton Business School, for his sterling behind-the-scenes work in helping us to put the event together, as well as all of the participants, but in particular Professor Conor Gearty and Professor Fiona de Londras for agreeing to be keynote speakers, and with especial thanks to Professor de Londras for further agreeing to write the Introduction to this collection. We would extend our gratitude to Professor Marie-Benedicte Dembour who co-convened this conference and to Professor Aidan Berry for his support and his contribution in opening the conference. Special thanks are also extended to two of the University of Brighton’s law students, Leigh Hart and Elizabeth Mutter, who gave their time to assist us and their efforts ensured that the conference ran smoothly and to time. We would also like to thank Victoria Carruthers and all at Cambridge Scholars Publishing for their enthusiasm for our conference

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and their help in realising this volume. Above all, we would like to thank all those who attended on the day and contributed to the debate. Individually, Claire would like to thank Professor Marie-Benedicte Dembour for her guidance and assistance in making this conference become a reality; her partner Stephen for his support and Richard Lang for his excellent contribution. Individually, Richard would only like to thank one person, ClaireMichelle Smyth, for coming up with such a fantastic project, for inviting him to be part of it, and for putting up with the erratic nature of his contribution. Claire-Michelle Smyth and Richard Lang Brighton, 30 June 2017

LIST OF TABLES

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Table showing implementation of Directive 2012/29 (the Victims’ Rights Directive) in the UK

CHAPTER ONE INTRODUCTION: THE FUTURE OF HUMAN RIGHTS FIONA DE LONDRAS

Human rights and human rights law have now become such an engrained part of our everyday political, legal and activist talk that we are in danger of taking for granted an embeddedness that may not in fact exist. Of course, in a legal doctrinal sense, human rights are embedded in the United Kingdom, not only through the Human Rights Act 1998 but increasingly through adaptations and developments of the common law. But legal doctrinal embeddedness is hardly the end of the story; the future of human rights in the United Kingdom will depend to a great extent not only on the doctrinal basis for their continued protection (which may, or may not, be the Human Rights Act 1998 or some version of a ‘British Bill of Rights’), but also on its anchoring in the political and popular discourse. We can hardly say that Griffin’s pronouncement that the constitution is politics and politics is the constitution is still a complete description of the UK’s constitutional corpus, but the basic proposition retains relevance. Politics matters, and for human rights law politics matters a great deal. The essays in this collection show that very well indeed. Alan Greene argues compellingly that the failure to embrace fully human rights as a part of the UK’s constitutional culture is related to numerous phenomena, rooted both in the constitutional heritage of the United Kingdom (and, indeed, the political constitution per se) but also in the development of a British culture of control. As in any culture of control, those tools that act as a source of resistance are easily presented as part of the ‘problem’ needing control, ‘monstered’ by the media (considered with great acuity by Gies in her chapter) and politicians alike. Whether that is the Human Rights Act 1998 or ‘activist left-wing human rights lawyers’, a lack of firm anchoring in the politico-legal space can make human rights vulnerable to attack. Add to that a politically febrile context, such as that of Brexit, and the dynamics become all the more challenging. In their

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essays in this collection, Coleman, Casla and Lang present Brexit as a moment of both opportunity and risk. Of course, there is always opportunity in chaos (and how else, in politico-legal terms, could the proceedings so far after triggering of Article 50 be described?) but in order to take advantage of that chaos there must be a firm foundation in which the value that we try to advance—in this case the protection and fulfilment of rights through, inter alia, law—is rooted in order for it to succeed. And here, then, is where reading the contributions to this collection as one a grain of doubt begins to appear. Can we really say that human rights are sufficiently entrenched in the UK’s politico-legal culture to effectively withstand Brexit? I am not sure that this is at all clear, although an interesting question that requires further exploration is whether the clear embeddedness of human rights within the European Union (as a constitutional principle and in the Charter) might be such as to force human rights onto the agenda, and keep them there, in a way that would have positive effects in the post-Brexit UK. Even then, however, key questions about the sufficiency, reach and operation of human rights law persist. Whether it is human rights’ ability effectively to shape surrogacy law (considered by O’Connor in her chapter), the recognition of the right to silence as fundamental to a fair trial (considered by Quirke), the compatibility of citizenship stripping with human rights (considered by Pougnet), or the right to strike (Barrow) questions of the content of human rights persist. Perhaps the prickliest questions relate to material wellbeing. In spite of years of scholarship, activism and advocacy socio-economic rights continue to be considered in the second place to civil and political rights, even though it seems quite clear that a basic condition of material wellbeing is fundamentally important not only to human flourishing but also to the exercise of civil and political freedoms. In this context, human rights law has had some successes in Austerity Britain (for example, in challenging the so-called Bedroom Tax) but socio-economic rights discourse continues to evade effective embeddedness in domestic law, with arguments of their nonjusticiability still enjoying significant traction (on which see Smyth in this collection) and the clearly acknowledged harm caused by austerity still not being effectively countered by human rights (see the chapter by Casla in this collection). If we are to think of the future of human rights, then, we must, it seems, think not only about the resilience of human rights law and discourse in formal and political terms, but also about the expanse of human rights law and about how that relates to the material conditions of people’s lives. A human rights law that leaves one hungry, homeless, and

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in ill-health in a wealthy economy and supposed welfare state is a strange human rights law indeed. In that, lawyers play an important role. Neither lawyers nor the law are the answer, at least on their own, to challenges of material well-being, to ill-health, to inequality, to injustice. But neither are they insignificant. Wilding nimbly illustrates the role of law and lawyers in making rights accessible, but of course we must also think critically about the arguments that will convince politicians, judges, policy-makers, and indeed the general public that there is a compelling and a justifiable case for burdening some for the purposes of advancing the rights of others (on which see Williams’ chapter in this book). Fundamentally, the future of human rights in the UK is dependent not only on legal doctrinal structures, on lawyering and on politics, but on making this first principles argument that the rights of some are to the benefit of all. That is the challenge that faces us, and rising to it is an important task indeed.

CHAPTER TWO THE HUMAN RIGHTS ACT IN A CULTURE OF CONTROL ALAN GREENE

Introduction The UK is currently in the midst of a robust backlash against human rights. The election of a Conservative majority to Government in the 2015 general election with the express pledge of repealing the Human Rights Act 1998 (HRA) in its manifesto has placed both its future and the UK’s continued accession to the European Convention on Human Rights (ECHR) high on the political agenda. That stated, the HRA was always on politically contentious ground with calls for its repeal being voiced since its enactment and this enactment itself delayed due to concerns regarding its impact.1 Such ‘rights hostility’ in the UK may be explained by political scepticism towards all things ‘European’— a hostility that still persists even after the UK’s vote to leave the European Union (EU)— and the UK’s constitutional order that has always had an, at best, ambivalent attitude towards the judicial vindication of human rights. This chapter, however, argues that these explanations are not the entire picture. This chapter commences with a brief over-view of these standard rights critiques in public law discourse: namely, from the conception of rights by political constitutionalists as inherently political constructs, the scope of which should be left to the political branches; and Euroscepticism which views human rights as a foreign imposition on the UK. Both of these critiques ultimately evoke an image of state sovereignty similar to Hobbes’ famous Leviathan, with preservation of this allpowerful state from being weakened by human rights the primary

1 Conor Gearty, On Fantasy Island: Britain, Europe and Human Rights (Oxford University Press 2016) 3.

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motivation.2 However, the death of Leviathan cannot be understood only through these two narrow lenses. A fuller understanding of this Leviathanic death, and by extension, the backlash against human rights in the UK, would entail looking at the complex sociological and political changes that the UK has gone under since the end of World War II. These changes have posed a profound challenge to the myth of the sovereign state, particularly in the area of criminal justice. Criminal justice has always been a key theatre for the performance of state sovereignty and the changes and challenges faced by the sovereign state in what David Garland calls a ‘culture of control’ need to be confronted.3 By illustrating and contextualising the changes that this field and society has undergone, a broader and more critical understanding of rights hostility in the UK can be attained. One must be careful, however, when constructing grandiose narratives concerning the general condition of modernity, particularly in a short chapter like this. The ambitiousness of such a project is daunting and whatever the result, it will invariably fall short of this stated goal. Outliers may be misidentified as the end-point of a trend, subjective preferences may distort the narrative by exaggerating certain aspects and downplaying others; certain trends may be ignored altogether.4 The purpose of this chapter therefore is not to provide such a comprehensive description of the condition of modernity, or even of Garland’s account of modernity; rather, it is to stimulate and provoke debate in the existing literature, in particular in the field of law. It is to challenge lawyers to expand beyond their discipline to look at arguments from other fields such as criminology, sociology and politics, thus bridging the gap between theory and practice.

Explaining Rights Hostility in the UK: Parliamentary Sovereignty and Euro-Scepticism The UK has always had, at best, an ambivalent attitude towards the judicial protection of human rights, in particular regarding their enforcement against the sovereign will of Parliament. JAG Griffith’s famous conception of the UK’s political constitution as being ‘no more and no less than what happens,’ eschewed any notion of judicial rights 2

See Thomas Hobbes, Leviathan (first published 1651, Penguin 1985). David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Oxford University Press 2001). 4 Lucia Zedner, ‘Dangers of Dystopia in Legal Theory’ (2002) 22(2) Oxford Journal of Legal Studies 341, 343. 3

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protection against a legislature.5 Rights are instead conceptualised as inherently political contestations, the resolution of which should be for the more democratically legitimate Parliament to decide rather than in courts. To illustrate this point, Griffith highlights the right to freedom of expression in Article 10 of the ECHR, arguing that it ‘sounds like the statement of a political conflict pretending to be a resolution of it’.6

The HRA and Political Constitutionalism Against this constitutional backdrop, the enactment of the HRA in 1998 saw the UK incorporate the ECHR into domestic law while at the same time seeking to maintain the supremacy of Parliament. Inspired by the New Zealand Bill of rights, the HRA took a ‘third way’ approach to human rights, allowing courts to review, and invalidate administrative decisions if they were incompatible with human rights norms.7 It also sought to foster a ‘dialogue’ between Parliament and the courts if the rights violation is traceable back to primary legislation and the legislation cannot be interpreted in a way compatible with these human rights obligations.8 Thus a section 4 declaration of incompatibility under the HRA does not affect validity of the legislation in question, meaning that the HRA avoids the degree of judicial protection of rights as seen, for example, in states like the USA or Ireland where the judiciary can strike down legislation as unconstitutional. Within this culture of constitutional ambivalence towards the judicial protection of rights, it is of no surprise that the HRA, notwithstanding its copious genuflections towards the supremacy of Parliament, has become a target for political debate when particularly contentious judgements are reached. Benedict Douglas argues that this is further compounded by the lack of a fundamental justification for the HRA, such as the concept of dignity which has hampered the ‘ownership’ of rights in the UK and 5

JAG Griffith ‘The Political Constitution’ (1979) 42(1) Modern Law Review 1, 19. ibid 14. 7 See Francesca Klug, ‘The Human Rights Act— a “Third Way” or “Third Wave” Bill of Rights’ [2001] European Human Rights Law Review 361-372; Section 6 of the HRA requires public authorities to act compatibly with Convention rights. 8 Section 3 of the HRA requires courts to interpret legislation compatibly with Convention rights ‘so far as it is possible to do so while section 4 of the HRA empowers a court to make a declaration of incompatibility. See Roger Masterman, ‘Interpretations, declarations and dialogue: rights protection under the Human Rights Act and Victorian Charter of Human Rights and Responsibilities’ [2009] Public Law 112, 114-115. 6

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provided no bulwark against the criticisms of rights levied by Griffith and his predecessors, Jeremy Bentham and Edmund Burke.9 The balance struck by the pyrrhic remedy of section 4 has also been criticised from a political constitutionalist perspective. While Section 4 declarations of incompatibility do not affect the validity of the law in question, some commentators argue that this ‘weak-form’ judicial review eventually evolves into strong form judicial review given that such declarations of incompatibility are rarely, if ever, ignored.10 Indeed, a number of political reactions to such section 4 declarations would corroborate this.11 However, the subsequent political pushback regarding prisoner enfranchisement following a declaration of incompatibility from a British court and subsequent finding of a violation of the ECHR would suggest that this is not necessarily the case in the UK.12 Political constitutionalism does, to an extent, explain why there is political and media hostility towards certain aspects of the HRA and human rights norms more generally in the UK; however, what political constitutionalism does not tell us is which judgments may be the ones that are electorally salient. For although Griffith highlights Article 10 of the ECHR to illustrate the inherently political nature of rights, it is not the cases pertaining freedom of expression that are the subject of tabloid or political indignation. Indeed, the very same newspapers that support a repeal or reform of the HRA are eager to invoke Article 10 when it is their rights that are at stake.13 Instead, it is those cases involving the rights of individuals who society perceives as ‘others’ that provoke the most hostile reactions towards the HRA.14

9 Benedict Douglas, ‘Undignified rights: the importance of a basis in dignity for the possession of human rights in the United Kingdom’ [2015] Public Law 241, 246. 10 See Mark Tushnet, ‘Alternative Forms of Judicial Review’ (2003) 101(8) Michigan Law Review 2781. 11 See, for example, the enactment of the Sexual Offences Act (Remedial) Order 2013 in response to a declaration of incompatibility made in R(F) v SSHD [2011] 1 AC 331 regarding the proportionality of a lifelong requirement, without review, for registered sex offenders to keep the police informed of their whereabouts. For a discussion of the political debate surrounding this decision, see Gearty (n 1) Ch 5. 12 Smith v Scott [2007] SC 345; Hirst v UK App no 74025/01 (ECHR 6 October 2005); Greens and MT v UK App nos 60041/08 and 60054/08 (ECHR 23 November 2010). See text to (n) below for a further discussion of this issue. 13 Miller v Associated Newspapers [2016] EWHC 397 (QB). 14 text to (n 55) below.

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Euro-scepticism This ‘otherness’ of human rights norms is not just limited to the individuals invoking rights claims but may also affect the norms themselves. In this regard, human rights norms the UK are often framed as a foreign imposition from Europe. The Conservative Party’s 2015 manifesto, for example, pledged to: …scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.15

This representation of human rights law as a foreign imposition on the UK is a politically potent one in a climate where Euro-scepticism is widespread and has not abated— but arguably accelerated— following the referendum to leave the EU in 2016.16 Press coverage on human rights often conflates the Council of Europe and the ECHR with the European Union (EU).17 To counter this European narrative, defenders of the HRA and ECHR may attempt to repatriate human rights, pleading to British input into the drafting of the ECHR or emphasising the link between the ECHR and traditional British civil liberties.18 From its inception, the Labour Party famously embraced this patriotic narrative by naming the policy document that gave birth to the HRA ‘Rights Brought Home’. Winston Churchill is often mentioned at this point of the debate and Magna Carta may also be referenced too in this narrative— both by those 15 ‘The Conservative Party Manifesto 2015’ (May 2015) accessed 8 January2017, 60. 16 See, for example, Christopher Hope, ‘Theresa May to fight 2020 election on plans to take Britain out of European Convention on Human Rights after Brexit is completed’ The Telegraph (28 December 2016) < http://www.telegraph.co.uk/news/2016/12/28/theresa-may-fight-2020-electionplans-take-britain-european/> accessed 7 January 2017. 17 See David Mead, ‘"They offer you a feature on stockings and suspenders next to a call for stiffer penalties for sex offenders”: do we learn more about the media than about human rights from tabloid coverage of human rights stories?’ in Michelle Farrell (ed), Human Rights in the Media: Representation, Rhetoric, Reality (Routledge, forthcoming). 18 This is a common theme stressed by human rights campaigning project RightsInfo. See, for example, ‘Human Rights’ What could be more British than that?’(RightsInfo 30 September 2016) < http://rightsinfo.org/what-could-be-morebritish-than-that/>accessed 7 January 2017.

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in favour and against the HRA.19 These counter-narratives to Euroscepticism may also downplay the legal relation between the HRA and the ECHR, by stressing that UK courts only have to ‘take into account’ judgments of the European Court of Human Rights (ECtHR), rather than being absolutely bound by them.20 Hostility therefore may not be towards the rights themselves per se but to their source as emanating from Europe and a fear of a loss of sovereignty to an external entity beyond the state. Again, however, not every case before the ECtHR attracts the same level of media and political interest.21 Euro-scepticism, while explaining to a certain extent why judgments of the ECtHR are considered to be unpopular, also does not help to identify which judgments will be the most contentious. There is an additional element to the ‘other’ dimension of human rights norms that is hinted at by the Conservative Party’s 2015 manifesto: We have stopped prisoners from having the vote, and have deported suspected terrorists such as Abu Qatada, despite all the problems created by Labour’s human rights laws. The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.22

19

Terry Kirby, ‘The Human Rights Act: 800 Years in the Making’ The Guardian, (2 June 2009); Jon Stone, ‘Scrapping the Human Rights Act will ‘restore’ Magna Carta’s Legacy, says David Cameron’ The Independent (15 June 2015) < http://www.independent.co.uk/news/uk/politics/david-cameron-says-his-plan-toscrap-the-human-rights-act-will-restore-magna-cartas-legacy-10320232.html> accessed 7 January 2017; Philip Johnston, ‘In the land of Magna Carta, individual liberties already exist – Human Rights Act or no’ The Telegraph (2 June 2015). 20 HRA section 2. For how section 2 has operated in practice see Roger Masterman, ‘Aspiration or Foundation? The Status of the Strasbourg jurisprudence and the ‘Convention rights’ in domestic law’ in Helen Fenwick, Roger Masterman and Gavin Phillipson (eds), Judicial Reasoning under the UK Human Rights Act (CUP 2007) 57; Aileen Kavanagh, ‘Strasbourg, the House of Lords or Elected Politicians: Who decides about rights after Re P?’ (2009) 72(5) Modern Law Review 828; Roger Masterman, ‘Supreme, Submissive or Symbiotic? United Kingdom Courts and the European Court of Human Rights’ (The Constitution Unit, School of Public Policy, UCL 2015) < https://www.ucl.ac.uk/constitutionunit/publications/tabs/unit-publications/166.pdf> accessed 10 January 2017. 21 Mead (n 17). 22 Conservative Manifesto (n 15) 58.

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This is contained in a section labelled, ‘Fighting crime and standing up for victims’. Related arguments are made in a section regarding the ‘Real change in our relationship with the European Union’, pledging that a newly enacted British Bill of Rights ‘will stop terrorists and other serious foreign criminals who pose a threat to our society from using spurious human rights arguments to prevent deportation’.23 The United Kingdom Independence Party’s (UKIP’s) 2015 General Election manifesto also explicitly makes the link between human rights and criminal justice with discussion of repealing the HRA and withdrawal from the ECHR placed in the ‘crime and justice’ section of its manifesto. It elaborated as follows: We will remove ourselves from the jurisdiction of the European Court of Human Rights: the Strasbourg Court whose interpretation of the European Convention of Human Rights has been known to put the rights of criminals above those of victims. Our own Supreme Court will act as the final authority on matters of Human Rights. We will also repeal Labour’s Human Rights legislation. It has given European judges far too much power over British law making and law enforcement and prevented us deporting terrorists and career criminals and from implementing whole-life sentences.24

There is therefore a clear link drawn between human rights, crime, and other ‘others’ such as terrorists and immigrants. Conor Gearty terms this representation of the HRA and ECHR as ‘a charter for the bad’25 while Adam Wagner calls it the ‘monstering’ of rights.26 Wagner’s interesting account of this monstering of rights begins in 2005; however, this chapter argues that one must go back further than this.

Human Rights in a Culture of Control Since the mid-twentieth century, the UK has, without a doubt, experienced a marked increase in judicial power. While the HRA was a significant contributor to this increase, it certainly was not the starting point. Thus 23

ibid 73. ‘United Kingdom Independence Party Manifesto 2015’ < https://d3n8a8pro7vhmx.cloudfront.net/ukipdev/pages/1103/attachments/original/1 429295050/UKIPManifesto2015.pdf?1429295050> accessed 7 January 2016, 53. 25 Gearty (n 1) ch 8. 26 Adam Wagner, ‘The Monstering of Rights’ (19 September 2014) < https://adam1cor.files.wordpress.com/2014/09/the-monstering-of-human-rightsadam-wagner-2014.pdf> accessed 8 January 2017. 24

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while many have heralded the death of Leviathan;27 this death, however, if it has occurred, was not so much a slaying by a single blow as it was a death by a thousand cuts. According to the Judicial Power Project, a project founded and supported by the right-wing Think Tank Policy Exchange, ‘No single political or legal decision, including the human Rights Act 1998, alone explains the rise of judicial power within the United Kingdom.’28 Nevertheless, this project, as its name suggests, is focused almost exclusively on changes in judicial power, rather than on changes to public power and the function of the state as a whole. Certainly, the rise in judicial power has affected the ‘Leviathanic’ image of the state as an all-powerful entity, with the executive— and the legislature to an extent— checked by judicial scrutiny in both domestic and international courts.29 However, a key question remains as to whether this growth in judicial power is a pro-active one on the part of the judiciary or reactive to the changing nature of society and, by extension, the function and expression of state power. A fuller exploration of the changing nature of judicial power would involve looking these changes in this broader sociological and political context. Such an approach would not look at judicial power alone but would require analysing how the role of Parliament itself has changed. While Parliament has endorsed international human rights norms and the institutional checks that these norms entail, state power has been ceded in other policy areas, not least to the EU. Lamentations decrying the ‘decline of parliaments,’ and the rise of experts and technocracy were heard, long before the HRA, the EU and, indeed were not limited to the UK.30 This advance of technocracy and expertise could also be seen internally with the advance— and rollback— of the welfare state and the administrative institutions designed to deliver its goals. For example, while the welfare state did lead to a growth in state power, it differed from the classic Leviathanic image of power expressed from a unitary source. Instead, Parliament often conferred broad decision-making and norm-making powers on administrative bodies who, in turn, exercised such power according to their ‘expertise’ and best practice accumulated. In turn, the 27

Eoin Carolan, ‘Democratic Accountability and the Non-Delegation Doctrine’ (2011) 33 Dublin University Law Journal 220, 220. 28 ‘About the Judicial Power Project’ (Judicial Power Project) < https://judicialpowerproject.org.uk/about/> accessed 8 January 2017. 29 Carolan (n 27). 30 ‘The Decline of Parliament’ (1963) 34(3) The Political Quarterly 233,233; A Moravcsik, ‘In Defence of the Democratic Deficit’ (2002) 40(4) Journal of Common Market Studies 603, 613.

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subsequent rollback of the welfare state and the rise of privatisation of public services must also present a profound challenge for this Leviathanic image of the state and, relatedly, attempts to check these new developments through judicial review. Consequently, whether the growth in judicial power is a proactive or reactive phenomenon must be interrogated further.

The ‘Culture of Control’ A further key area of state authority which has seen ‘dramatic changes’ around the same time as this concerns regarding the ‘decline of parliaments’ were heard is that of criminal justice policy. Up until the midtwentieth century, criminal justice policy in the UK was dominated by the ‘rehabilitative ideal’ or ‘penal welfarism’ —that crime was essentially a social malaise that could be ‘cured’.31 Central to the idea of rehabilitation was a conceptualisation of deviant behaviour as something that could be cured. Under this understanding, criminal justice and penal policy should be directed towards ‘rehabilitating’ and reforming prisoners; making them model citizens and incorporating them back into society. Criminal justice policy, as a result, was left to unelected experts to manage and was of low electoral salience. This view of criminal justice policy was closely linked to the welfare state, tackling the underlying social causes of crime such as poverty through education or other programmes, with the prison central in delivering this. This, however, began to change in the 1970s with the increased politicisation of crime, described by Ian Loader as ‘the Fall of the Platonic Guardians’.32 These platonic guardians sought to: …secure a better understanding of the ways in which crime and its control have become a key site for struggles over the meanings and import of such ideas as order, authority, legitimacy, freedom, rights and justice; a battleground for contests over the nature of political responsibility; a means of thrashing out debates about the relationship between state and citizens – in short, a conduit for championing and pursuing competing visions of the ‘good society’.33

31

Garland (n 3) 8. Ian Loader, ‘Fall of the “Platonic Guardians”: Liberalism, Criminology and Political Responses to Crime in England and Wales’ (2006) 46(4) British Journal of Criminology 561. 33 ibid 562. 32

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There are a number of reasons as to why this occurred. From a rise in the belief that ‘nothing works,’ and the related shift to ‘popular punitiveness’ to the rise of neo-liberalism and the increasing emphasis on individual responsibility, a comprehensive exploration of the causes of this change are beyond the scope of this chapter.34 What is key, however, is that criminal justice policy thus shifted from being shaped by ‘experts’ insulated from the slings and arrows of politics, to becoming an electorally salient issue where being ‘tough on crime’ became a legitimate electoral position to take.35 This decline of the Platonic Guardians is one aspect of broader changes in criminal justice policy and, indeed society as a whole at that time— what David Garland terms a ‘culture of control’. In Garland’s own words: The Culture of Control develops a sociological description of the contemporary field [of crime control], a genealogical account of its emergence, an analysis of its central discourses and strategies, and an interpretation of its social functions and significance.36

The ‘Culture of Control’ is Garland’s attempt to catalogue the changes in penal and social policy in the late Twentieth Century. Through this historical account of the recent past (or a ‘history of the present’ as he terms it), Garland explains how we have arrived at the state of the world as it exists today, or, at least, how it existed when The Culture of Control was published in 2001.37 The Culture of Control is aimed at explaining contemporary crime control but also has the more ambitious task of tracing the ‘breakdown of modernist conceptions of the state and new ways of organising security’.38 In The Culture of Control, David Garland identifies 12 ‘indices of change’ which he suggests reveals a major transformation to the way in which Anglo-Saxon societies in modernity (specifically the US and UK) respond to crime. These are: the decline of the rehabilitative ideal; the re-emergence of punitive sanctions and expressive justice, changes in the emotional tone of crime policy; the return of the victim; the protection of the public as paramount; the politicisation of crime, and populist rhetoric and policies; the reinvention of the prison; the transformation of criminological thought; the 34

Garland (n 3) ch 1. ibid 8-9. 36 David Garland ‘Beyond the Culture of Control’ (2004) 7(2) Review of International Social and Political Philosophy 160,161. 37 Garland (n 3) Ch 1. 38 Garland (n 36) 163. 35

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Chapter Two expanding infrastructure of crime prevention and community safety; the commercialisation of crime control; new management styles and working practices; and a perpetual sense of crisis.39

As a result of this ‘punitive turn’, criminal justice policy came to be dominated by populist polices such as harsher sentencing and increased use of imprisonment, ‘three strikes’ and mandatory minimum sentencing laws; ‘community notication laws and paedophile registers zero tolerance policies and Anti-Social Behaviour Orders, and the rise in victims’ rights.40 A key driver behind these measures was a more proactive legislature, one that in other areas of public policy was experiencing a decline.

Schizoid Criminology and Human Rights According to Garland, this culture of control has given birth to new criminologies that attempt to explain this new reality.41 Lucia Zedner describes this aspect of Garland’s thesis as ‘schizoid criminology’— oscillating between two, apparently contradicting schools of criminological thought: criminologies of the ‘self’ and criminologies of the ‘other’.42 Garland describes the ‘criminologies of the ‘other’ as the representation of a criminal as: a threatening outcast, a ‘superpredator’, some of whom are ‘barely human, their conduct being essentialised as “evil” or “wicked” and “beyond all human understanding”.’43 This ‘criminology of the other ‘demonises the criminal, arouses popular fears and hostilities and strives to enlist support for drastic measures of control.’44 This criminology of the other results in a rise in ‘punitiveness’ where a fearful public seeks both security from and retribution against this criminal other. Criminal justice thus becomes one of the last bastions whereby the Leviathan could assert its sovereignty, realising Hobbes’ classical justification for the existence of a state as a necessary sacrifice of liberty to increase individuals’ security that cannot be achieved in a state of nature. Indeed, law enforcement has always been a key feature of

39

Garland (n 3) 8-20. ibid 142 41 ibid 137-138. 42 Zedner (n 4) 351-353. 43 Garland (n 3)135 44 David Garland, ‘The commonplace and the catastrophic: Interpretations of crime in late modernity’ (1999) 3(3) Theoretical Criminology 353, 354. 40

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sovereign power; the meting out of punishment, in particular.45 Judgments of the ECtHR therefore pertaining to forms of punishment that breach Convention obligations – e.g. the Article 3 prohibition on torture and inhuman and degrading treatment and punishment, or Article 5 and the deprivation of liberty – are therefore stepping on particularly sovereign toes.46 With the increased electoral salience of crime, the legislative branch has reclaimed criminal justice policy from the ‘experts’ or ‘platonic guardians’ who were entrusted with it for most of the Twentieth Century. This more ‘hands on’ approach manifests itself, according to Garland, with legislators becoming: …more directive, more concerned to subject penal decision-making to the discipline of party politics and short term political calculation… One sees this reverse transfer of power in a series of measures (fixed sentence law reforms, mandatory sentences, national standards, truth in sentencing, restrictions on early release, etc.) that have shifted detailed decisionmaking tasks back to the centre – first to the courts and later to the legislature itself.47

In The Culture of Control, Garland emphasises the role of the decline of faith in rehabilitation as the primary catalyst for the introduction of sentencing guidelines. With the reduction in use of indeterminate sentences, mandatory minima and maxima terms were introduced. Garland also suggests that the curtailment of judicial discretion by mandatory sentencing regimes results in a more streamlined system of pain delivery from the legislature and executive to the prisoner.48 Judicial discretion is therefore portrayed by Garland as an obstruction to the delivery of pain, chaining the Leviathan by checking legislative and executive power. Such an argument implies that judges act like Loader’s ‘platonic guardians,’ constructing a bulwark against a punitive public. It is in this indicator of the culture of control where the clash between sovereignty and human rights is most sharply actualised. For example, in Vinter v UK, the Grand Chamber of the ECtHR ruled that ‘whole life tariffs’ under the Criminal 45

See David Garland, ‘The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society’ (1996) 36(4) British Journal of Criminology 445; Paul Kahn, ‘Torture and Democratic Violence’ (2009) 22(2) Ratio Juris 244. 46 See, for example where the ECtHR found that the UK system of whole life sentences without review constituted a breach of Article 3 in Vinter and Others v UK App No 6609/09 (ECHR 9 July 2013). 47 Garland (n 3) 13. 48 ibid

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Justice Act 2003 were incompatible with Article 3 of the ECHR and the prohibition on torture or inhuman and degrading treatment or punishment. In this regard, we can see how the majority of politically contentious human rights cases stem from individuals that are labelled as ‘others’— prisoners, terrorists or even asylum seekers. Attempts to counter these narratives can be seen for example in Liberty’s ‘What have Human Rights Ever Done for You?’ campaign.49 Consequently, what the culture of control tells us is that this ‘monstering’ of rights, is nothing new. It also suggests that its causes and explanations lie deeper than legal or philosophical disagreements regarding the nature of rights and their role in the constitutional order. At the same time as the criminology of the other was revived, an almost paradoxical ‘criminology of the self’ appeared and co-existed alongside this criminology of the other. Complementing the rise in neoliberal thinking in power structures, these criminologies emphasised crime as a rational choice, an everyday, permanent phenomenon and something everybody was capable of.50 Rather than attempting to rehabilitate individuals by curing their propensity for deviant behaviour, criminal justice strategies instead focused on reducing the opportunities for individuals to commit crime.51 This ‘supply side criminology’ consisted of measures such as ‘target-hardening’ and increased securitisation of spaces.52 By stressing crime as a rational choice to an opportunity that presents itself, the criminology of the self, at first instance, obliterates the distinction between the criminal and the ordinary citizen; between the self and the other. On this narrow reading, the criminology of the self would to reduce the Leviathanic role of the state in the area of criminal justice policy at the same time as the emphasis on the ‘otherness’ of the criminal sought to revive it. This shift towards the ‘supply side’, however, also entails a more macro perspective on crime. While the criminal law and criminal justice is 49

Liberty, ‘What Have Human Rights Ever Done for You?’ accessed 9 January 2017. 50 Garland (n 3) 131-132. 51 See e.g. Ronald V Clarke and Pat Mayhew, ‘Crime as Opportunity: A Note on Domestic Gas Suicide in Britain and the Netherlands’ (1989) 29(1) British Journal of Criminology 35; David Lester, ‘Crime as opportunity: A test of the hypothesis with European homicide rates’ (1991)31(2) British Journal of Criminology 186; Paul Cozens and Terence Love, ‘A review and current status of crime prevention through environmental design’ 30(4) Journal of Planning Literature 393. 52 Garland (n 3) 131-132;

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invariably focused on individual responsibility for their given actions, viewing crime as a rational choice and the requisite attempts to reduce these opportunities led also to what Malcolm Feeley and Jonathan Simon describe as conceptualising crime as an ‘actuarial congregation of aggregates’.53 These ‘new criminologies’ replaced the language of morality with the language of risk management, the responsibility of which lay on the individual, rather than the state.54 Thus while prima facie a simultaneous rise in the ‘criminology of the other’ with the ‘criminology of the self’ may seem paradoxical, ‘moralising and managerialism need each other badly’.55 By operating on a macro level, risk assessment and management makes broad assumptions about environments and about individuals. It is in this actuarial assessment of the individual that the stereotypes created by the criminology of the other can, in turn, feed into the criminology of the self. Thus although we are all potential criminals, some have more potential than others. Garland does not, however, delve too deeply into the various factors such as race, sex, religion or social class that go into constructing this other.56 There is therefore a link between the apparently contradictory actuarial risk-management criminology and the expressive, retributive criminology of the other. Garland places much of the explanation for this demand for security on ‘high crime rates’ and feelings of increased insecurity that has produced a ‘crime complex of late modernity’.57 Zedner, however, is critical of this explanation, arguing that Garland assumes that media representation of the popular will are synonymous with the public opinion.58 Instead, Zedner suggests that the risk-management model fails to satisfy the base urges that can only be done by the more expressive retributive approach, an approach that harkens back to the Leviathanic state.59 Individuals do not conceptualise risk as an actuarial exercise. Humans are susceptible to a wide array of mental short cuts, heuristics, prejudices, and base fears which can be shaped or ‘framed’ by politicians, the media, and others with

53

Malcolm M Feeley and Jonathan Simon, ‘The New Penology: Note on the Emerging Strategy of Corrections and its Implications’ (1992) 30 Criminology 449, 457-458. 54 ibid 55 Zedner (n 4) 358. 56 ibid 351. 57 Garland (n 3)163; Zedner ibid 352. 58 ibid. 59 Zedner (n 4) 358; Feeley and Simon (n 53) 464.

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the capacity to set the agenda of public discourse.60 A key feature of this culture of control is thus the manner in which political rhetoric shifted from absolving the state from responsibility for the causes of crime or the welfare of its citizens, while correspondingly making greater use of rhetoric that demonised sections of society that were helped by this welfare state.61 Relatedly, it may be the case that this risk-management itself creates conditions of unease and fear of crime. Thus the pursuit of security becomes an end in itself.62 Indeed, one may go further and interrogate how the influence of neo-liberal economic policy in creating job insecurity has led to a further demand for security in other areas of peoples’ lives.63 No more so is this schizoid criminology evident than in the area of counter-terrorism. A Culture of Control was published prior to the events of 11 September 2001; nevertheless, many of the dramatic changes that occurred in the area of criminal justice since then can be mapped on to Garland’s thesis. The shift in emphasis from Irish terrorism to Islamic extremist terrorism made othering this new threat much easier, with the archetypal terrorist threat now possessing a much more racially and religiously distinct identity from the rest of the population.64 At the same time, the conceptualisation of this threat as omnipresent and an every-day occurrence meant that securitisation and risk-assessment became the natural response.65

60

RM Entman, ‘Framing: Toward Clarification of a Fractured Paradigm’ (1993) 43(1) Journal of Communication 51; Zizi Papacharissi and Maria de Fatima Oliveira, ‘News Frames Terrorism: A Comparative Analysis of Frames Employed in Terrorism Coverage in US and UK Newspapers’ (2008) 13(1) International Journal of Press/Politics 52, 53. See also Cohen S, Folk Devils and Moral Panic: The Creation of the Mods and Rockers (Martin Robertson, 1980). 61 Mona Lynch, ’Review: David Garland, The Culture of Control: Crime and Social Order in Contemporary Society’ (2002) 25 PoLAR: Political and Legal Anthropology Review 109,110. 62 ibid. 63 Jock Young, The Vertigo of Late Modernity (Sage, 2007) ch5. 64 See Javaid Rehman, ‘Religion, Minority Rights and Muslims in the United Kingdom’ in Javaid Rehman and Susan Breau (eds) Religion Human Rights and International Law (Martinus Nijhoff Publishers 2007) 521; Chris Allen, ‘Fear and Loathing: The Political Discourse in relation to Muslims and Islam in the Contemporary British Setting’ (2010) 4(2) Politics and Religion 221. 65 See Oren Gross, ‘Chaos and Rules: Should responses to violent crises always be constitutional?’ (2002) 112 Yale Law Journal 112, 1069-1095.

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The HRA in a Culture of Control The HRA was passed therefore passed at a time when the electoral salience of crime was at an all-time high. This, in turn, placed the judiciary firmly in the spotlight. A key event in this was the moral panic that surrounded the murder of three year old James Bulger by two ten year-old boys.66 When the Court of Appeal subsequently found that the Home Secretary acted unlawfully by taking into account a petition signed by over 250,000 members of the public when increasing the sentence imposed on the defendants, a huge media outcry followed.67 This judgment, delivered before the entry into force of the HRA and based on classic administrative law principles, would portend of future reactions to high-profile judgments made under the HRA. Tony Blair, while in opposition, famously stated in 1993 that a Labour government would be ‘tough on crime; tough on the causes of crime’.68 Upon entering into government in 1997, Labour lived up to this promise, with the promise of being ‘tough on crime’ interpreted as being ‘tougher than the Tories on crime’.69. Once in power, the new Government expanded the prison population by 33%.70 Harsher sentences for certain offences were introduced, the 800 year old double jeopardy rule was changed and Anti-Social Behaviour Orders or ASBOs heralded a new form of deviance-control.71 It was thus in this climate of largely illiberal penal policy that the HRA was enacted by the newly elected Labour Government led by Tony Blair. The result therefore is a Janus-like government, embarking on a progressive constitutional revolution, while at the same time embracing the political rhetoric of popular punitiveness that is now directed against the HRA. This was further compounded by the

66 See generally Colin Hay, ‘Mobilization through Interpellation: James Bulger, Juvenile Crime and the Construction of a Moral Panic’ (1995) 4(2) Social and Legal Studies 197. 67 ibid; R v SSHD ex parte Venables [1998] AC 407. 68 David Downes, ‘Toughing it Out: From Labour Opposition to Labour Government’ (1998) 19(3/4) Policy Studies 191, 192. 69 ibid 70 See Geoff Dobson, ‘New Labour’s Prison Legacy’ (2010) 57(3) Probation Journal 322. 71 See Michael Tonry, ‘The costly consequences of populist posturing: ASBOs, victims, ‘rebalancing’ and diminution in support for civil liberties’ (2010) 12(4) Punishment and Society 387.

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events of 11 September 2001 and the subsequent counter-terrorist laws enacted in light of this new normalcy.72

The Future of the Human Rights in a Culture of Control But in light of this broader, socio-legal understanding of rights hostility in the UK, what does this mean for the future of the HRA and human rights in the UK? As stated at the outset, the aim of this chapter is not to provide a comprehensive over-view of the changing nature of society, politics and other factors that may affect rights hostility in the UK. Rather, by giving a greater contextual and sociological focus to rights hostility in the UK, renewed scrutiny to the arguments advanced by both the defenders and critics of the HRA and human rights in general can take place.

Political Constitutionalism in a Culture of Control A key area in which this could occur would be in regard to the value of ‘disagreement’ in political constitutionalism. A key defence of judicial review is its counter-majoritarian function in protecting vulnerable minorities from the ‘tyranny of the majority’.73 This role has, however, been attacked by political constitutionalists, contending that the judiciary’s record has been woeful in protecting and vindicating these rights. Keith Ewing, for example, argues that the HRA and classic civil and political conceptions of rights has resulted in an unbalanced constitution where preference is given to this libertarian construct of non-interference at the expense of socio-economic rights. Ewing emphasises that the judiciary’s hostility towards socio-economic rights can be seen long before the enactment of the HRA in the common law and its antagonistic stance towards trade unions.74 Another classic example of this is the constitutional crisis caused by the stand-off between US President

72

For a discussion on how supposedly temporary emergency powers often become permanent, see Oren Gross, ‘Chaos and Rules: Should responses to violent crises always be constitutional?’(2002) 112 Yale Law Journal 112, 1069-1095. 73 See Alexander M Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (2nd Ed Yale University Press, 1962); John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press, 1981). 74 See Keith Ewing, ‘The Unbalanced Constitution’ in Tom Campbell, Keith Ewing and Adam Tomkins, Sceptical Essays on Human Rights (Oxford University Press, 2001) Ch 6.

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Franklin D Roosevelt and the Lochner Era Supreme Court’s frequent striking down of New Deal legislation as unconstitutional.75 Far from being sceptical of rights or law, political constitutionalists purport to defend both. Instead, the legislature is instead seen as the most appropriate forum for seeing rights in the round and ensuring that their specification in legislation takes into account the full range of considerations necessary to promote the public interest.76 However, the aforementioned convergence between the left and right on criminal justice policy raises challenges for this view of the value of ‘disagreement’.77 Many of these critiques of the counter-majoritarian nature of judicial review do not venture into the realm of criminal justice policy and, indeed, Richard Bellamy, a key proponent of political constitutionalism—but also a defender of the HRA—sees this as a key area of judicial competence. His focus, however, is primarily on due process rights in the course of a trial, rather than on legislation pertaining to criminal justice.78 The result of this convergence between left and right, is that it is difficult to see how the political order can effectively vindicate the claims of the most unpopular of minorities—that of the prisoner. The ‘political disagreement’ that political constitutionalism lauds, in this context, is not a debate between those in favour of prisoners’ rights versus those against; rather it is instead a debate about who can out-tough the other side when it comes to criminal justice policy. Moreover, in the case of implementing the Hirst judgment, it is a debate about the right to vote, the fundamental right necessary for democracy which, in turn, gives Parliament (or at least one chamber) and, by extension, political constitutionalism, its legitimacy. In the context of criminal justice legislation, Bellamy challenges the appropriateness of conceptualising this as an example of countermajoritarianism, arguing that what he terms the dichotomy purported to exist in ‘we-they legislation’ is difficult if not impossible to construct. In the context of criminal legislation, Bellamy states that one could argue that 75

Lochner v New York, 198 US 45 (1905); Ely (n 73) 14-15; Barry Friedman, ‘The History of the Countermajoritarian Difficulty, Part Three: The Lesson of Lochner’ (2001) 76 New York University Law Review 1383, 1390. 76 Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge University Press, 2007) 110. 77 See Jeremy Waldron, Law and Disagreement (Oxford University Press, 1999) 15, 25; Bellamy, ibid 5. 78 ibid. For Bellamy’s defence of the HRA as striking a good balance between rights and parliamentary sovereignty, see Richard Bellamy, ‘Political Constitutionalism and the Human Rights Act’ (2011) 9(1) International Journal of Constitutional Law 86.

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criminal legislation is not ‘we-they legislation’ but ‘we-we’ legislation in the sense that everybody is a potential criminal. ‘We are potential criminals in the way a white person in not potentially black.’79 Bellamy thus seems to conceptualise ‘they’ only as being factors which we cannot change about ourselves. It would follow therefore that discrimination on the grounds of class is non-existent seeing as anybody can potentially be rich or, conversely, anybody can go from being rich to losing it all. Bellamy’s answer also does not take account of the ‘criminology of the other’ and the powerful effect that this has on constructing a ‘they’. It also does not take account of different agenda setters in public discourse and the different capacities of hegemonic groups to frame and shape the dominant narrative.80 In essence, it is an argument that is, in theory, robust; however, practically, it ignores these powerful social forces that effectively create ‘others’ targeted by legislatures. Bellamy further argues that given the prominence of victims in criminal law and the consideration that ought to be given to victims’ rights, criminal law can also be conceptualised as ‘they-they’ legislation referring to two classes of minorities.81 He does, however, acknowledge that ‘we’ are more likely to fall into the latter category. Even on this issue of ‘we’ as potential ‘victim’, this notion of victimhood must itself be interrogated. One of Garland’s indices of Change is the return of the ‘Victim’ to the fore of penal policy. Relegated to the role of witness by the adversarial system with its primary aim of punishing an offence against the state, the victim was often left unfulfilled and wanting after justice was deemed to be done. This is arguably compounded by the introduction of victim impact statements.82 As Christie notes, ‘He has no alternative. He will need all the classical stereotypes around the “criminal” to get a grasp on the whole thing.’ The first conclusion one could expect is that with the increasing attention paid to the voice of the victim, one could expect the shift of the justice system to reflect their conflict with the offender rather than the State’s. This would result in a more personalised, individual perception of the offender, negating the need for the “classical stereotypes” of the criminal as an ‘Other’. This however is not the result of the affirmation and protection of victims as identified by Garland. Instead of a more individualised experience of the criminal justice system, the victim has been held up as a representative character whose experience is assumed to be common and collective rather than individual and atypical. 79

Bellamy (n 76) 115. Entman (n 60). 81 Bellamy (n 76) 115. 82 Garland (n 3) 11-12. 80

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The victim is portrayed by the media and politicians as possessing certain feelings of anger towards the offender. Likewise, the public are told to relate to this iconic victim and their feelings as “everyone’s a victim” or potential victim. The anger therefore becomes a collective experience, a collective experience of a violation that is ultimately very personal to the victim. However, much like the failure of constitutional theory to confront this ‘othering’, many of the attempts by campaigners to counter the ‘monstering’ of rights, also fail to address this issue of why this othering occurs, and what, if anything, can be done to counter them. Moreover, they potentially ossify this problem, implicitly accepting the notion of the deserving over the undeserving by emphasising what they consider to be the deserving cases. A more nuanced understanding of how minority groups are constructed and represented could provide fresh insight into theoretical justifications for judicial review and the problem of ‘discrete and insular minorities’ in a democracy.

Euro-scepticism in a Culture of Control A more contextual specific understanding of rights hostility can also illuminate understandings of human rights as suffering from an image problem as a ‘foreign imposition’ on the UK and whether confronting this image problem is a useful strategy for rights campaigners to take. UK public law has seen a considerable shift in recent years with regards to the relation between the HRA and common law scrutiny of the exercise of public functions through judicial review. In Osborn v the Parole Board the UK Supreme Court held that the applicants who were challenging erred in law by basing their arguments upon the HRA and Article 5(4) of the ECHR pertaining to the right to liberty and ignoring the common law jurisprudence pertaining to the ‘duty to act fairly’.83 While the motivation behind this emphasis of the common law, may not necessarily be to remove the HRA from the public spotlight in politically contentious issues, it nevertheless results in this. Moreover, the shift away from the HRA towards classic judicial review would have the effect of fortifying judicial review in the event of a repeal of the HRA.84 Other recent judgments such as Pham v SSHD emphasise that more intrusive tests for substantive review such as proportionality acknowledges the European 83

Osborn v Parole Board [2013] UKSC 61 Roger Masterman and Se-Shauna Wheatle, ‘A common law resurgence of rights protection?’ [2015] European Human Rights Law Review 57, 61. 84

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influence on this test but at the same time emphasising its progressive evolution through the common law.85 Notwithstanding this development, however, these developments will not mitigate the veracity of criticisms levied at the judiciary when rights or civil liberties or ‘the duty to act fairly’ operates in a criminal justice setting. Indeed, this can be seen before the enactment of the HRA. The killing of James Bulger placed the judiciary in the spotlight, even before the coming into effect of the HRA. Taking the HRA out of the picture will still leave the judiciary in the firing line from a legislature more willing to take a ‘hands on’ approach to criminal justice. Attempts therefore of claiming the ‘Britishness’ of the ECHR will not succeed in repelling critiques of the HRA. Ultimately, this hostility will not be solved by cosmetic changes to the HRA. Nor will it be solved by a repeal of the HRA completely or withdrawal from the Council of Europe. Political ire would instead be directed towards judicial review in classic administrative law (something already occurring), through changes to access to legal aid (again already occurring) or to criminal justice procedures involving high profile acquittals or mistrials. Human rights are but one more frontier in the cross-hairs of the highly politicised area of criminal justice.

Conclusions The HRA in a culture of control becomes a perfect storm for the Leviathan and ‘the myth of the sovereign state’. Although Garland’s ‘culture of control’ is itself an incomplete picture of modernity, it should nevertheless encourage a broader, more contextually specific inquiry into the nature of rights hostility in the UK. However, while Garland’s bleak thesis is relied upon here to motivate further inquiry into rights hostility in the UK, one must be careful of falling into dystopian despondency.86 Ultimately, the utility of dystopias, much like their antonym ‘utopia’, lies in their unattainability. Utopias act as a catalyst for change. They motivate actors, guiding their choices so that the decisions they take will lead them in the

85

[2015] UKSC 19; Mark Elliott, ‘Proportionality and contextualism in commonlaw review: The Supreme Court’s judgment in Pham’ (Public Law for Everyone, 17 April 2015) accessed 10 January 2017. 86 Zedner (n 4).

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direction of the utopia.87 However, by being unattainable, the inspiration and motivation remains constant. Dystopias too can motivate action and choice so as to avoid the world which the dystopia describes.88 A dystopian picture of human rights in the UK therefore can motivate people to challenge the elements of the status quo that reflects the dystopia and defend those elements that the dystopian vision suggests are under attack. However, dystopias can also paralyse rather than motivate as the enormity of the challenge at hand is revealed. Moreover, as stated at the outset, there can be a tendency in constructing ‘histories of the present’ to misidentify end-points of a trend or distorting narratives by exaggerating certain aspects and downplaying others; certain trends may be ignored altogether. In this regard, when discussing trends in the area of criminal justice and human rights, one must be cautious not to hoist penal policy prior to the emergence of a ‘culture of control’ onto a lofty pedestal. Take, for example, the rehabilitative model that long dominated penal thought up until the late 20th Century. The initial backlash against this rehabilitative model in the US was actually triggered by prisoners’ rights activists. These activists were concerned at the arbitrariness and lack of consistency in a sentencing policy that was supposedly tailored to an individual. Indeterminate sentences, whereby an individual would not be released until they were deemed to be rehabilitated were a particular source of contention. These critiques, once they gained traction, unfortunately had the opposite effect that they were designed to do. Rather than advancing prisoners’ rights, they were seized upon in the more punitive climate to introduced fixed sentences albeit at long, lengths or mandatory sentences.89 To assume therefore that a return to the rehabilitative ideal would align with the conceptualisation of rights under the ECHR is to make a large conceptual leap into the dark. Indeterminate sentences would pose profound challenges to Article 5 – right to liberty – and would invariably come into conflict with the most European of doctrines: proportionality. Indeterminate sentences can also pose a challenge to the principle of legality or conceptions of equality under Article 14 ECHR.

87

Zygmunt Bauman, ‘Living in Utopia’, (London School of Economics, 27 October 2005), available at < http://www.lse.ac.uk/website-archive/publicEvents/ pdf/20051027-Bauman2.pdf> accessed 7 January 2017, 7. 88 Peter Young, ‘The Importance of Utopias in Criminological Thinking’ (1992) 32(4) British Journal of Criminology 423, 429. 89 Garland (n 3) 55-6.

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The dystopia must therefore not itself be a ‘Fantasy Island’ where negatives are exaggerated while the positives down played.90 Relatedly, Zedner criticises Garland’s arguments pertaining to the ‘rehabilitative ideal’ as ignoring, for example, the many changes that took place regarding restorative justice.91 Moreover, Zedner stresses that often there was a marked disjuncture between this ‘tough on crime’ rhetoric and the actual reality of policies that were implemented.92 Thus there may be some hope that the current Government’s bark pertaining to human rights is worse than their bite. The constant postponement of the repeal of the HRA may be testament to this. That stated; if one takes a more contextual approach to human in the UK, negative changes pertaining to legal aid, and the law pertaining to standing in judicial review, thus making the practical vindication of legal rights through the courts more difficult should also be analysed. Moreover, if Brexit has taught us anything to date, it is the power of political rhetoric, regardless of its factual basis to shape public opinion. Thus while the Janus-like government may, in some areas talk tougher than it acts, in the long term, the distorted image of reality created by this rhetoric eventually creates its own realisation. The UK, following Brexit is undergoing tumultuous constitutional changes which will, in turn, have profound impact on peoples’ lives and society as a whole. State power will wax in one area, wane in the other and, regardless of whether or not the HRA is repealed, this will propose a profound challenge for human rights and constitutional law. Whether or not the Leviathan will once again roar remains to be seen; however, a truer understanding of the changes made to human rights in the UK must be sought through greater contextual analysis and a grounding of theory in practice. The potential sociological factors that may contribute to rights hostility discussed in this paper is not exhaustive. Indeed, even those raised require further elaboration upon and stress-testing. Ultimately, the point of this chapter, like the seminal work from which it takes its name, is to provoke.93

90 To borrow the term coined by Conor Gearty to describe the image of the UK painted by those in favour of repealing the HRA. See Gearty (n 1). 91 Zedner (n 4) 356. 92 ibid. 93 Garland (n 3).

CHAPTER THREE IMAGES OF CITIZENSHIP AT POINTS OF RUPTURE BETWEEN THE CITIZEN AND THE STATE: CANCELLATION OF CITIZENSHIP IN FRANCE AND THE UK RACHEL POUGNET

Introduction The power to revoke citizenship on national security grounds has recently attracted increased academic interest following the new dynamics that these powers have taken since 2001.1 Although cancellation powers have long been a standard feature of the legal frameworks of liberal democratic states (e.g. cancellation following the acquisition of a new nationality,

 1

Marie Beauchamps, ‘The Forfeiture of Nationality in France’ (2016) 19 Space and Culture 31; Audrey Macklin and Rainer Bauböck (eds), The return of banishment: do the new denationalisation policies weaken citizenship? (EUI Working Paper: Robert Schuman Centre for Advanced Studies 2015/14); Matthew Gibney, ‘“A Very Transcendental Power”: Denaturalisation and the Liberalisation of Citizenship in the United Kingdom’ (2013) 61 Political Studies 637; Ben Herzog, The loss of citizenship: The regulation of loyalty in immigration countries (ProQuest 2009); Shai Lavi, 'Punishment and the Revocation of Citizenship in the United Kingdom, United States, and Israel' (2010) 13 New Criminal Law Review: An International and Interdisciplinary Journal 404; Patti Tamara Lenard, ‘Democracies and the Power to Revoke Citizenship’ (2016) 30 Ethics and International Affairs 73; Devyani Prabhat, Unleashing the force of law: legal mobilization, national security, and basic freedoms (Palgrave Macmillan 2016); Caroline Sawyer, ‘“Civis Britannicus sum” no longer? Deprivation of British nationality’ (2013) 27(1) Journal of Immigration Asylum and National law 23.

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cancellation following fraudulent acquisition),2 cancellation for national security purposes has been revived following the attacks of 9/11 in the USA and the phenomenon of home-grown Jihadism. Several democratic states have either made use of the measure, modified their existing legislation, or considered adopting legislation that permits revocation of citizenship on national security grounds.3 The UK has modified its legislation three times since 2001, with the latest provision (and the most drastic one) being implemented in 2014.4 Canada and Australia also modified their legislation in 2015. France increased its recourse to these measures after the attacks on Charlie Hebdo in January 2015, as did Belgium, which broadened cancellation powers to include new terrorist offences in July 2015.5 Even so, cancellation of citizenship stands at odds with liberal values, human rights and the rule of law.6 Indeed, the new dynamics around cancellation of citizenship risk increased statelessness and greater interference with protected rights, such as the right to a fair trial, the right to non-discrimination, and the right to private and family life, to name but a few.7 This chapter focuses on the cases of France and the UK as objects of study, as citizenship-stripping powers in both states have taken on similar dynamics in comparable national security contexts. In the UK, for example, section 66 of the Immigration Act 2014, which modified the British Nationality Act 1981, enables the Home Secretary to make single-

 2

Harald Waldrauch and others, Acquisition and Loss of Nationality/Volume 2: Country Analyses: Policies and Trends in 15 European Countries (Amsterdam University Press 2006). 3 Lenard (n 1). 4 Terry McGuinness and Melanie Gower, ‘Deprivation of British citizenship and withdrawal of passport facilities’ (2017) House of Commons Library Briefing Paper No 6820 < http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN06820#fullre port> accessed 17 June 2017, 16. 5 Patrick Wautelet, ‘Deprivation of citizenship for jihadists: Analysis of Belgian and French practice and policy in light of the principle of equal treatment; Déchéance de nationalité des jihadistes: analyse de la pratique belge et française à la lumière du principe d'égalité’ (2017) 30 Recht van de Islam en het MiddenOosten 49. 6 Patti Tamara Lenard, Adrian Little and Terry Macdonald, ‘The ethics of deportation in liberal democratic states’ (2015) 14(4) European Journal of Political Theory 464. 7 Devyani Prabhat, ‘Political Context and Meaning of British Citizenship: Cancellation as a National Security Measure’ [2016] Law, Culture and the Humanities 1; Prabhat, Unleashing the force of law (n 1).

Images of Citizenship at Points of Rupture between the Citizen and the State 29

nationality, naturalised citizens stateless. In France, the proposed modification to the legislation in 2016 aimed to limit its application ratione personae to dual-nationality holders only, thereby creating different classes of citizens on the basis of their connection with a foreign country. Yet both France and the UK are politically liberal democratic states, members of the Council of Europe and, still at present, of the European Union, with long commitments to the protection of human rights. It thus seems that cancellation powers have been revived and retooled to address the fight against terrorism and to sanction the failure to be a ‘good citizen’ in a way that contravenes commitments to both political citizenship (equality of treatment within the state) and legal citizenship (membership in the state). However, there are important differences in the approaches and justification of the two states to cancellation of citizenship, with France offering much tighter legislation and limited use of the powers. Any potential explanation for these differences would need to trace the different national trajectories of both states in their pre-emergency frameworks. Thus, this chapter argues that the extent to which a state resorts to cancellation of citizenship in a similar national security context can provide insights into that state’s predominant understanding of citizenship. Following Brubaker’s analytical frame, this chapter considers citizenship as having a double dimension–the ‘internally inclusive’ and the ‘externally exclusive’.8 It is internally inclusive in that it situates the individual in the political community and enables that individual to claim and benefit from an equal status and access to rights. On the other hand, it is externally exclusive as it prevents everyone else from accessing membership.9 This exclusion enables the political community to define itself by determining who can be a member and under what conditions. Cancellation of citizenship provides insights in respect to both dimensions of citizenship: the determination of who can be subject to the measure highlights the state’s approach to ‘inclusive’ citizenship; and the grounds for the exclusion of the individual stresses the state’s political (national) identity. As Anderson writes, us (a collective identity) is defined by the exclusion of them (the others).10 It is thus at that point of rupture in the relationship between the citizen and the state that insights are provided as to what this relationship encompasses.

 8

Roger Brubaker, Citizenship and Nationhood in France and Germany (Harvard University Press 1992). 9 Christian Joppke, Citizenship and Immigration (Polity 2010). 10 Bridget Anderson, Us and Them?: The Dangerous Politics of Immigration Control (Oxford University Press 2013).

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This chapter is situated within the field of literature that links conceptions of citizenship to the cancellation of citizenship rights. Yet, given that it follows a socio-legal approach, it is able to contribute a more critical view to the connection between stripping powers and images of citizenship. It therefore adds to the existing literature addressing French and British conceptions of citizenship,11 by taking a socio-legal contextual approach, and contributes to the body of work on French and British conceptions of citizenship by scrutinising them via the lens of cancellation powers. This chapter first sets out the purported images of citizenship adopted by France and the UK, drawing from existing literature. It shows that both states have not endorsed just one approach to citizenship, but multiple approaches over time and in the present day, and that these approaches sometimes form a composite picture, but at other times clash. It thus refers to ‘images of citizenship’ rather than addressing the French and British conceptions of citizenship as clear-cut normative categories. It finds that it is possible to make sense of these different images by classifying them into two categories: first, a pragmatic approach, and second, a more symbolic approach. It then addresses cancellation of citizenship policies and practices in France and the UK through an analysis of relevant legislation, case law, and recent parliamentary debates in both polities, interpreting this data through the lens of the images of citizenship explored in the first section. It finds that the pragmatic/symbolic dichotomy can also make sense of cancellation of citizenship policies and practices. A predominantly pragmatic approach would justify the measure as a counter terrorism tool, for instance, to promote the deportation of an individual or to prevent their return to the state, whereas a predominantly symbolic approach would stress the departure of the nation from actions threatening its foundational values.

 11

Christian Bertossi, ‘French and British models of integration: Public philosophies, policies and state institutions’ (2007) University of Oxford Centre on Migration, Policy & Society Working Paper WP-07-46 < https://www.compas.ox.ac.uk/2007/wp-2007-046bertossi_french_british_integration/> accessed 17 June 2017; Eric Bleich, Race politics in Britain and France: Ideas and Policymaking since the 1960s (Cambridge University Press 2004); Adrian Favell, Philosophies of integration: immigration and the idea of citizenship in France and Britain (2nd ed, Palgrave 2001) ; Didier Lapeyronnie, L'individu et les minorités: la France et la GrandeBretagne face à leurs immigrés (Presses universitaires de France 1993); Andrew Geddes and Virginie Guiraudon, ‘Britain, France, and EU anti-discrimination policy: The emergence of an EU policy paradigm’ (2004) 27 West European Politics 334.

Images of Citizenship at Points of Rupture between the Citizen and the State 31

Different Images of Citizenship: A Symbolic versus a Pragmatic approach to Citizenship? A pragmatic image of citizenship sees citizenship as the legal status that attaches an individual to the state. Citizenship from this perspective is perceived as an immigration status that enables the individual to enter the polity without the need for immigration checks and confers duties upon the sovereign state not to deport its own citizens. This image of citizenship can be linked to the traditional concept of ‘subjecthood’, which instituted a vertical connection between the subjects and the sovereign, and a reciprocal relation of allegiance against protection. Citizenship is not seen as an actual entitlement to a particular status or package of rights. This makes citizenship more subject to change as it can be used to answer practical needs (e.g. curtailment or encouragement of immigration).12 On the other hand, a symbolic image of citizenship sees citizenship as political - it is what holds the political community together. From this perspective, citizenship reflects the ‘political existence’ of the individual,13 as well as the political existence of the community. In a democracy, this status encompasses the right to elect state representatives. It also creates a horizontal connection between citizens, connecting them through mutual agreement of a shared political project.14 The state is thus said to embody a ‘community of citizens’ where the citizens enjoy in equality the rights and duties conferred by that political project.15 When this community is ‘nationalized’, i.e. when membership depends on the holding of the country’s citizenship, citizenship is also held to encompass the foundational values of the nation. This means that citizenship is always conditional on a certain behaviour - the adherence to and the furthering of the values of the nation. This idea is reflected in the preamble to the French government’s constitutional amendment that aimed towards the

 12

Prabhat, ‘Political Context and Meaning of British Citizenship’ (n 7). This image is best captured in the case of Trop v Dulles [1958] 356 US 86, 102 where the US Supreme Court found that deprivation powers were contrary to the Eight Amendment, which prohibits cruel and unusual punishments, as cancellation of citizenship constitutes ‘a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development’. 14 Engin Isin and Bryan Turner (eds), Handbook of Citizenship Studies (SAGE 2002) 14. 15 Dominique Schnapper, Community of Citizens: On the Modern Idea of the Nation (Routledge 1998). 13

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introduction of the cancellation of citizenship in the Constitution. According to the then Prime Minister Manuel Valls: I think that at a time where our country interrogates its foundational values we need acts that remind us of what the French nation is, and what it means, to be French.16

From the perspective of the Prime Minister, it is clear that cancellation of citizenship expresses the departure from the national community of the individual who no longer abides by the nation’s foundational values. The individual cannot be identified to the community anymore, and the community redefines itself, i.e. who ‘belongs’, by excluding that individual. This statement thus portrays citizenship as an expression of identity and belonging, and in the present, as ‘national citizenship’ expressing a national identity. Both symbolic and pragmatic images of citizenship can be found in France and the UK. The dominant approach often happens to encompass elements of symbolism and/or pragmatism, as a past and present analysis of the French and British approaches to citizenship illustrates.17

Images of Citizenship in France In France, the conditions for entry and stay in the polity, and the modes of acquisition of citizenship, i.e. citizenship as an immigration status or pragmatic citizenship, are defined by statute, but citizenship is also politically and symbolically defined in the Constitution. The first article of the Constitution of the 5th Republic (4 October 1958) establishes France as ‘an indivisible, secular, democratic and social Republic’ and further states that The Republic ensures the equality of all citizens before the law, without distinction of origin, race or religion (….).

A constitutional recognition implies that any piece of legislation (statute, secondary legislation) must be in conformity with this article, or if

 16

JO 05-02, 1001. Patrick Weil, La France et ses étrangers: l'aventure d'une politique de l'immigration, 1938-1991 (Calmann-Lévy 1991); Gerard Noiriel, Le creuset français: histoire de l'immigration, XIXe-XXe siècles (Seuil 1988); Laurie Fransman, Fransman's British nationality law (3rd ed, Bloomsbury Professional 2011).

17

Images of Citizenship at Points of Rupture between the Citizen and the State 33

not, prompt an amendment of the Constitution.18 Therefore, laws cannot distinguish between citizens on the grounds of colour, ethnicity or religion, else they would be found to be unconstitutional, and equality is established as a corollary to citizenship. This image of citizenship was first introduced by the Revolutionaries during the French Revolution in 1789. The political project of the Revolutionaries rested on the creation of a body of associates living under a common law and represented by the same legislature.19

Membership in the body of associates was meant to be open to all, and supposed to confer freedom and equality in rights.20 The Declaration of the Rights of Man and of the Citizen of 1789 thus states that ‘men are born and remain free and equal in rights’ (article 1) and ‘only civic virtue and talent can prompt a breach of equality within the law’ (article 6). The creation of a horizontal connection between citizens contrasts with the Ancien Régime (16-18th century). Under the Ancien Régime, the subjects of the King were allocated to one of the three organisational structures of the Régime (the clergy, the third estate and the nobility) at and by birth.21 Membership in the realm was subject to allegiance to the king. The Revolutionaries intended to break free from this organisational structure and to institute France as a ‘community of citizens’.22 Schnapper writes that in this space citizens are said to be cut off from prescribed roles imposed on them by birth that would lock them into a predetermined culture or destiny. In other words, citizenship appears as the horizontal link that holds the community together, a link that does not distinguish between citizens and a link that puts all individual citizens on an equal footing. However, reminiscent of how participation in the political project of the community in Ancient Greece was refused to slaves, women, and non-wealthy citizens,23 in France too political citizenship did not include women in the revolutionary project, who were only granted the right to vote in 1944.24

 18

Articles 61, 61-1 and 62 of the Constitutions of the 5th Republic of the 4 October 1958. 19 Brubaker (n 8) 7. 20 Patrick Weil and Nicolas Truong, Le sens de la République (Grasset 2015). 21 Brubaker (n 8). 22 Schnapper (n 15). 23 Isin and Turner (n 14). 24 Jeremy Jennings, Revolution and the republic: A history of political thought in France since the eighteenth century (Oxford University Press 2011).

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French citizenship also displays another image that is linked to its national grounding. Indeed, throughout the 19th century, the abstract nature of the Universalist French political project of the Revolution has been tied to national boundaries.25 To be a member of the nation now encompasses an agreement on a national narrative and on shared values. Anderson explains that nation states as ‘imagined communities’, created by official cultural frames of social belonging, require a feeling of belonging.26 Citizenship-nationality thus illustrates the connection between individuals. What keeps people together is no longer citizenship but the nation,27 hence the stress on national identity and national values that constitute the foundations of the polity. In France, this was realised through two sets of laws during the Third Republic. First, the ‘Ferry Laws’ of 1882 established primary education as free, compulsory and secular. These laws constituted the first step of the national integration process, by putting education at the centre of the national political project.28 As Janoski explains, in order to ensure the self-government of free minded citizens who would sustain the political project of the nation, citizens need to be educated in the virtues that constitute the polity.29 Alongside these laws, the Law of 26 June 1889 on French nationality instituted the direct attribution of citizenship for any individual born on French territory (direct jus soli). Weil explains that this jus soli rests on the idea that being French is the product of a socialising process. To hold French citizenship is synonymous with integration into the nation and adherence to the values of the community.30 However, although some argued that the Law of 1889 reflects the French conception of citizenship,31 the Constitutional Council noted that the nationality law of 1889 answered various motives, including military conscription.32 Thus, it can be noted that, although enshrined in a national narrative, French citizenship was also subject to important phases

 25

Sophie Duchesne, ‘French Representations of Citizenship and Immigrants: The Political Dimension of the Civic Link’ (2003) 22 Immigrants and Minorities 262. 26 Benedict Anderson, Imagined communities: Reflections on the origin and spread of nationalism (Verso 1983). 27 Brubaker (n 8) 22. 28 Weil and Truong (n 20). 29 Isin and Turner (n 14) 19. 30 Weil and Truong (n 20). 31 Brubaker (n 8). 32 Rémy Schwartz, ‘Dossier: la Constitution et le droit des personnes et de la famille’ (2013) 39 Nouveaux Cahiers du Conseil Constitutionnel 43.

Images of Citizenship at Points of Rupture between the Citizen and the State 35

of pragmatic necessity, inter alia, the curtailment of immigration, and military conscription.33 Yet, the portrayal of French citizenship, as either universal or national, has revolved at a high degree of normative abstraction, and citizenship in both stances enjoys a high degree of symbolism. Whether these images represent an objective account of French citizenship is dubious,34 but nevertheless, these symbolic images are generally mobilised to justify legislative modifications, which is in contrast with the UK where recourse to such symbolism is generally absent in citizenship matters.

Images of Citizenship in the UK Citizenship in the UK first appeared in the British legal system in only 1948, in the British Nationality Act 1948; and was statutorily defined in 1981, in the British Nationality Act 1981. This legal definition encompasses no more than the setting out of different ways through which citizenship can be acquired. As Fransman and Dummett and Nicol show, the absence of a political definition of citizenship can be explained by the preeminence of the concept of subject-hood in British history.35 Under the British Empire, the subjects of the Crown were all individuals born under the Crown dominion who had sworn allegiance to the Crown.36 The relation between the individuals and the sovereign was a vertical one, a relation based on allegiance against protection, as opposed to a horizontal connection between citizens, based on the fulfillment of a common political project. This vertical connection of subject-hood, based on a sufficiently close connection to the Crown, led to the creation of different statuses for different people within the Empire. This process was accelerated in the context of the Imperial retreat as different governments found that they could use citizenship to curtail immigration to the UK from former colonies through citizenship legislation. Clayton shows that what these statuses encompassed, in terms of rights and duties, depended on the UK’s relationship with the particular group at that particular time, or on the UK’s particular needs.37 As an example, the Commonwealth

 33

Weil (n 17); Bertossi (n 11). Noiriel (n 17); Weil (n 17). 35 Fransman (n 17); Ann Dummett and Andrew Nicol, Subjects, citizens, aliens and others: Nationality and immigration law (Weidenfeld and Nicolson 1990). 36 Andrew Mycock, 'British Citizenship and the Legacy of Empires' (2010) 63 Parliamentary Affairs 339. 37 Gina Clayton, Textbook on Immigration and Asylum Law (6th ed, Oxford University Press 2014). 34

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Immigration Act 1962 and 1968, and the Immigration Act 1971, introduced controls for entry in the UK through the ‘patrial’ criteria. Only ‘patrial’ UK citizens, those whose descendents were born on UK territory, had an unconditional right to reside. As Sawyer and Wray show, the patrial criteria had racialised effects as they permitted some subjects to claim blood links and retain citizenship, while others were excluded from the status under the British Nationality Act 1981.38 Although the UK dropped the distinction between patrial and non-patrial citizens, it nevertheless kept the differentiation of statuses for different people under the heading of British national. Therefore, currently, the heading of British national encompasses six different statuses, but only that of British citizen gives the right of abode in the UK. The right of abode gives access to territorially grounded rights and obligations. However, it is not reserved to only British nationals as non-British citizens legally residing in the UK can also claim this right, for example, individuals who have been granted the status of indefinite leave to remain. This approach to citizenship thus reflects the influence of subject-hood in the British nation-building process, where membership to the community does not encompass adherence to a common political project or the granting of rights that would derive from the status. Yet, the British concept of citizenship parted from the notion of subject-hood in the post-Second World War context, when rights permeated the allegiance-protection relationship. The British sociologist, Marshall, writing at that period, identified three major sets of rights associated with the holding of citizenship. These were: 18th century civil rights, 19th century political rights and 20th century social rights.39 Marshall’s work demonstrated how the introduction of social rights, and the linking of these rights with citizenship, enabled integration of the British society by breaking free from the vertical relations instituted by the Empire. He explained how the holding of social rights made the possession and use of previous rights more effective, as they enabled the removal of fences between groups previously separated by legal and social barriers.40 These rights, which were granted to an ever-growing number of individuals, instituted a formal equality amongst citizens. This led both to

 38

Caroline Sawyer and Helena Wray, ‘European Union Democracy Observatory (EUDO) Citizenship Observatory - Country Report: United Kingdom’ (European University Institute 2014). 39 Thomas Humphrey Marshall, Citizenship and Social Class, and Other Essays (Cambridge University Press 1950). 40 Gershon Shafir, The Citizenship Debates: A Reader (University of Minnesota Press 1998).

Images of Citizenship at Points of Rupture between the Citizen and the State 37

the integration of individuals and of society as a whole, by giving a sense of community membership. However, as opposed to the French case, this community was not nationalised. Citizenship in the UK is not seen as a process of acculturation to national and civic values, but rests on a programme of equal access to the rights conferred by British society through the right of abode. It is highly liberal in that it goes beyond the idea that membership of a community, through the granting of rights, is predominantly a matter of nationality.41 This can to a certain degree explain why the British government has preferred to narrow the right of abode through immigration legislation for British nationals (e.g. the Immigration Act 1962) rather than through the ‘nationalisation’ of UK citizenship. This historical overview thus shows two features of British citizenship. First, how British citizenship has been subject to pragmatism, with the expansion or curtailment of the right of abode according to the circumstances of the day, and second, how British citizenship is constituted of different categories of individuals with different rights attached to their status. Building on these identified differences between images of citizenship in France and in the UK, the next section of this chapter will argue that the pragmatic vision of British citizenship has enabled the British government to pass extensive legislation on deprivation powers. On the other hand, the highly symbolic status of French citizenship in France has limited the breadth of the cancellation of citizenship rights in France. Indeed, it appears that both frameworks, although possessing certain similarities, widely differ with regards to their scope of application. Both arguments are exemplified through French and British legislation, and their respective parliamentary debates. Scrutiny of the case law on cancellation of citizenship in both polities will also help provide useful insights into the way the courts envisage the content of citizenship.

Legislative, Judicial and Political Views on Cancellation of Citizenship: Different Images of Citizenship Legislation Under current British law, section 40 of the British Nationality Act 1981 enables the Home Secretary to deprive natural-born citizens of their citizenship, provided that they are dual nationals (section 40(4)) and that the deprivation is conducive to the public good (section 40(2)). In

 41

Fransman (n 17) 5.

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addition, section 66 of the Immigration Act 2014, which modified the British Nationality Act 1981, now enables the Home Secretary to make any naturalised citizen stateless if that individual has acted in a manner that is seriously prejudicial to the vital interest of the UK (section 40(4Ab)). The British legislation thus creates at least two different categories of citizens: natural-born citizens are treated differently from naturalised citizens and dual nationality holders from single nationality holders. Article 25 of the French Civil Code also makes this distinction between citizens: cancellation of citizenship only applies to naturalised, dual nationality-holder citizens. Naturalised single-nationality holder citizens cannot be subject to the provision as a modification to the legislation introduced a provision against statelessness in 1998. Article 25–1 of the Civil Code further limits the ability to deprive individuals who have been naturalised for less than 10 years and the order can only be issued for 10 years after the commission of the sanctioned acts. Yet, both time limits have been extended to 15 years for acts of terrorism in 2006. It thus appears that the contrast between the two legislatures needs to be nuanced, as both apply different legal regimes to different categories of citizen created on the basis of the mode of entry into citizenship and the holding of another nationality. However, an order of cancellation can only be issued after a criminal conviction in France for actions falling under the grounds of article 25 of the Civil Code (mostly acts of terrorism and acts threatening the life of the Nation). In addition, a cancellation order can only be taken after a positive assent from the Conseil d’Etat, the highest French Administrative Court. The Conseil d’Etat has both an advisory and a judicial role and, although advisory opinions are normally non-binding on the government, positive assents to issue a cancellation of citizenship order are binding. In other words, the government is bound by the evaluation of the Conseil d’Etat. However, the Conseil d’Etat has never yet opposed a cancellation order. On the other hand, in the UK, no such binding authority can influence the process of deprivation. Before making the order the Home Secretary is only bound by a duty to give the person written notice specifying the reasons for the order and the person’s right of appeal (section 40(5) of the British Nationality Act 1981). In cases of deprivation on grounds of national security, that is, where the Home Secretary certifies that her decision was taken wholly or partly on information which she considers should not be made public, the appeals need to be conducted before the Special Immigration Appeals Commission rather than before the First-tier

Images of Citizenship at Points of Rupture between the Citizen and the State 39

Tribunal (Immigration and Asylum Chamber).42 Deprivation cases on grounds of national security are thus mostly held under closed material proceedings (i.e. information that cannot be disclosed to the individual nor their lawyer as they relate to national security matters) and no criminal charge is requested. This, in effect, enables the Home Secretary to deprive individuals on suspicion based on secret evidence.43 In addition, appeals against the decision to make a deprivation order are ‘non-suspensive’ which means that the individual–no longer a British citizen–can be prevented from exercising their right of appeal in the UK if he or she is outside the country. On the other hand, in France appeals against the decision are conducted before the Conseil d’Etat, although in a different format than the one which gave the positive assent of the measure.44 The decision is also non-suspensive in character, although it can be suspended before the appeal through recourse to the Conseil d’Etat if there exists a ‘serious doubt on the legality of the contested decree’ (this procedure is called the ‘référé suspension’ and is grounded in article L. 521–1 of the Code de Justice Adminsitrative). What image of citizenship do these legislative provisions reflect? It appears that this analysis of the legislation tends to give a more nuanced account than the blunt contrast that a glimpse at both legislations would give. Both legislations, for instance, differentiate between citizens according to their mode of entry into citizenship. A possible explanation for this can be found in the image of citizenship as loyalty: loyalty to a sovereign in an allegiance-against-protection analysis of citizenship, or loyalty to a community in a political conception of citizenship. Prabhat explains that a potential rationale underpinning the distinction in the UK would be that multiple nationality holders and naturalised citizens who have had previous and/or present strong connections with other nations are the ones whose allegiance is more likely to waver.45 In the French case, the subjection of the distinction between individuals to a time limit fits within the image of citizenship as an integration process. It is only at the end of this integration process that loyalty to the community is fully achieved. As the legal scholar Boulbes put it

 42

McGuinness and Gower (n 4). Eric Fripp, ‘Conducive deprivation of British citizenship status and statelessness: further problems’ (2013) Immigration, Asylum and Nationality Law 315; Alice Ross, ‘Deprivation of Citizenship: What do we know?’ (2014) Immigration, Asylum and Nationality Law 316. 44 Conseil d' Etat n394348, 8 June 2016. 45 Prabhat, ‘Political Context and Meaning of British Citizenship’ (n 7). 43

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Once this time limit is ended, citizenship becomes imprescriptible. Yet, as shown in 2006, the legislator can extend this time limit which, in practice, deprives it of any effect. Therefore, one could argue that this procedural safeguard is a mere artifact as it can be modified according to the circumstances of the day. Yet, in a recent decision, the Conseil Constitutionnel (hereafter CC) found that the maximum time limit had been reached. The Conseil Constitutionnel’s role is to check the conformity of primary and secondary legislation with the Constitution. In 1996 the CC found that the distinction between natural-born and naturalised citizens operated by the legislation on cancellation of citizenship did not constitute a breach of equality contrary to the Constitution. For the CC, the fight against terrorism justified that Parliament allowed, for a limited time period, an administrative authority to cancel an individual’s citizenship and a distinction between citizens. The CC had noted that naturalised citizens and natural born citizens were in effect in different situations.47 Yet, after the extension of the time limit to 15 years for acts of terrorism in 2006 (i.e. cancellation of citizenship can apply to naturalised citizens who have been naturalised for less than 15 years), the CC found that the limit had been reached and that any extension would be disproportionate, thereby placing a judicial limit on the powers.48 Thus it appears that the French legislation offers more procedural safeguards and is more judicially constrained than in Britain, which fits with a highly symbolic image of citizenship. This feature has repercussions on the case load before the courts, with more cases being heard in Britain.

Cases Following the recent legislative changes, the UK has experienced an extensive use of deprivation powers compared to France. According to David Anderson QC, the UK’s independent reviewer of terror legislation, at least 33 persons have been deprived of their citizenship since 2010 on

 46 Raymond Boulbès, Droit français de la nationalité: Les textes, la jurisprudence, les règles administratives (Sirey 1957). 47 DC 2014–439 QPC Ahmed S. 48 Agnès Roblot-Troizier, ‘Droits fondamentaux et libertés publiques’ (2015) 48 Les Nouveaux Cahiers du Conseil Constitutionnel 161, 164.

Images of Citizenship at Points of Rupture between the Citizen and the State 41

terror grounds, with 5 in 2015.49 On the other hand, in France, the strict procedural conditions to which deprivation powers are subjected, which prevent the government from depriving an individual prior to a conviction for a specific crime, and prior to the assent of the Conseil d’Etat, limit recourse to the measure. Since 1973, 13 individuals have been deprived of their citizenship on national security grounds (one in 2002, one in 2003, five in 2006, one in 2014 and five in 2015).50 In addition to a difference in the number of cases, the scope of the scrutiny of the court and the issues addressed also differ greatly. In her account of the British judicial approach to cancellation of citizenship cases, Prabhat contrasts the approach of British courts with a hypothetical ‘maximal rights approach’ to deprivation cases. In the UK, courts have displayed a ‘minimal approach to citizenship’ in that citizenship appears not to be judicially analysed as encompassing anything more than the legal status that attaches the individual to the state, namely, the right of abode. This explains why British courts have mostly contrasted citizenship with statelessness–that is, the absence of legal attachment to any state which prevents an individual from enjoying the rights and protection conferred by the state–rather than engaging in a proportionality assessment of the consequence of the loss of citizenship for the individual. A maximal approach, on the other hand, she hypothesises, would examine at length how the loss of citizenship impacts upon citizens and would discuss the implications of a difference in treatment between naturalised citizens and natural-born citizens.51 A maximal versus minimal lens for analysing the French and British case law appears particularly relevant in the present comparison as it fits in well within the pragmatic-symbolic approaches to citizenship. In the UK, the main issues addressed by the courts have dealt with procedural safeguards, statelessness and EU legislation as reflected in the three main cases on deprivation: Pham v Secretary of State for the Home

 49 David Anderson, ‘Citizenship removal resulting in statelessness’ (2016) < https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/518 120/David_Anderson_QC_-_CITIZENSHIP_REMOVAL__web_.pdf> accessed 17 June 2017. 50 Assemblée Nationale Commission des Lois Constitutionnelles, ‘Rapport sur le projet de loi constitututionnelle (n3381) de protection de la Nation’ (2016). 51 Prabhat, ‘Political Context and Meaning of British Citizenship’ (n 7).

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Department;52 Al Jedda v Secretary of State for the Home Department;53 and G1 v Secretary of State for the Home Department.54 In G1, the Court of Appeal found that, although the loss of British citizenship encompasses the loss of EU citizenship, EU law was not engaged.55 This approach was subsequently followed by the lower courts, but could have been overturned in the subsequent Supreme Court case of Pham. However, in Pham the issue of the engagement of European law was only raised by the claimant’s lawyers before the Supreme Court, which by then was unwilling to adjudicate on any issue other than that of statelessness.56 The issue of statelessness was also considered by the Supreme Court in Al Jedda, a case adjudicated before the revision of 2014, where the court found that the order was illegal at that time since it would leave Al Jedda stateless. In both Pham and Al Jedda the Supreme Court engaged in a detailed analysis of foreign legislation to establish whether the order would leave the individuals stateless, rather than on a detailed analysis of the consequences of deprivation of rights.57 Indeed, neither of these cases engaged in a consideration of the potential effect on rights of a deprivation order: the court’s scrutiny remained at the procedural level rather than in the balancing of the aim pursued with a potential infringement of substantive rights.58 On the other hand, in 2016 the Conseil d’Etat in five identical decisions59 engaged in an assessment of the proportionality of the interference of cancellation of citizenship with the right to family life (article 8 ECHR). The court found that articles 25 and 25–1 had as their main objective the aim of reinforcing the fight against terrorism, but that their issuing did not in itself impact on the presence of the individual in the territory. Therefore the Conseil found that cancellation of citizenship did not interfere with the right to family life under article 8.60 However, the Conseil noted that the provision directly affected a constitutive element of the identity of the person and thus interfered with the right to privacy, also recognised by article 8. Yet, when balancing the infringement of the right

 52

[2015] UKSC 19. [2016] UKSC 62. 54 [2012] EWCA Civ 867. 55 G1 v Secretary of State for the Home Department [2012] EWCA Civ 867 [37 42] (Laws LJ). 56 Prabhat, ‘Political Context and Meaning of British Citizenship’ (n 7). 57 Prabhat, Unleashing the force of law (n 1). 58 Prabhat, ‘Political Context and Meaning of British Citizenship’ (n 7). 59 CE n394348, MA 8 June 2016. 60 ibid Cons. 15. 53

Images of Citizenship at Points of Rupture between the Citizen and the State 43

with the aim of the measure, the Conseil found that the infringement was not disproportionate. The Conseil took a similar view when assessing the potentiality of a breach of equality created by the distinction between citizens in the legislation. The Conseil d’Etat restated the decision of the Constitutional Council, which had refused to consider that the distinction amounted to a violation of the Constitution, to conclude that the provision did not violate the claimant’s rights to equality.61 However, the claimant had also argued that the provision was in breach of the right to equality as enshrined in articles 20 and 21 of the European Charter of Fundamental Rights, of direct effect in the French system. The Conseil found that these articles did not oppose the possibility of differentiating between individuals in cancellation policies according to the mode of acquisition of citizenship.62 The Conseil found that the legislation which differentiated between individuals for a limited time period was not incompatible with the legislation of the European Union, having due regard to the particular gravity of acts of terrorism.63 Although the Conseil d’Etat engages in a proportionality test of the interference with domestic rights, these cases also reflect a deference from the courts to the executive where the provision which aims at sanctioning acts of terrorism justifies a degree of infringement of rights. However, the Conseil gave a nuanced positive assent to the proposition by the government to extend the legislation in 2016. The Conseil d’Etat, acknowledging the eventuality of an unconstitutionality (rather than ascertaining), recalled that nationality for French-born citizens constitutes a constitutive element of the individual. As the Conseil d’Etat put it: Crucially French nationality represents a constitutive element of the individual from birth. It confers fundamental rights to the individual the privation of which by the ordinary legislator could be found to be a disproportionate infringement to the individual’s rights which could be found to be unconstitutional. The measure proposed by the government could be found to be contrary to the principle of the guarantee of rights proclaimed by article 16 of the DDHC.64

The French case law and the full engagement with rights of the Conseil d’Etat shows the importance of equal political citizenship in France, which is a ‘constitutive element’ of the individual. On the other hand, in the UK

 61

CE n383664, MQ 11 May 2015. ibid Cons. 7. 63 ibid Cons. 8. 64 Conseil d'État, Avis consulatatif loi constitutionelle de la protection de la Nation (Assemblée general, section de l'interieur 2015) 5. 62

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the courts did not engage in a substantive evaluation of citizenship. The fact that the UK Supreme Court only engaged in an analysis of foreign laws, to evaluate the potential risk of making the individual stateless, rather than on a proportionality analysis of the consequences of the loss of the status for the individual reflects a minimal, pragmatic, approach to citizenship. Citizenship is only considered in its legal dimension, as conferring the right of abode in the UK, and therefore does not seem to encompass more than this right.65 Both analyses appear to confirm the symbolic–pragmatic dichotomy, in which the French approach is perceived as predominantly symbolic while the British is mostly pragmatic. It appears that the pragmatic-versus-symbolic opposition can also be found in the parliamentary debates that surrounded the proposed revisions to the measures in 2014 in the UK and 2016 in France. However, again, such a blunt contrast should be nuanced since a closer scrutiny of the debates shows evidence of different images of citizenship within each political arena.

Parliamentary Debates In France the extension of the scope of cancellation powers to natural-born citizens and its enshrinement in the Constitution was justified by the President, the Prime Minister and the Secretary of State for Justice as a symbolic sanction. In the words of the government, the measure pursues a legitimate aim which consists of sanctioning the authors of acts so grave that they do not deserve to belong to the national community anymore.66

Cancellation of citizenship was not pursued for its practical advantage, as a counter-terrorism tool to deport terrorists or prevent their returning to the country. Indeed, as the then French Prime minister acknowledged: Efficiency, here–and everybody would have understood it–is not the main objective of the measure. It is a measure–I have already said it–with a highly symbolic character. It is a grave sanction that the Nation is legitimate to inflict to those who betray her.67

 65

Fransman (n 17). Citing Conseil d’État (n 64) 4. 67 Manuel Valls, ‘Menaces terroristes: Protéger les Français dans la durée’ (23 December 2015) < http://www.gouvernement.fr/partage/6127-menaces-terroristesproteger-les-francais-dans-la-duree> accessed 18 June 2017. 66

Images of Citizenship at Points of Rupture between the Citizen and the State 45

On the other hand, in the UK the government explained that cancellation of citizenship aims at protecting the fundamental interests of the country by dealing with people ‘whose behaviour is seriously prejudicial to the United Kingdom’68 by facilitating their deportation from the UK and/or impeding their returning to the country. Therefore, the two principal effects sought were the loss of the right of abode and the possibility of immigration detention, deportation or exclusion from the UK. This is best captured by Lord Taylor of Holdbeach’s justification before the Lords: By removing an individual’s entitlement to a British passport and to enter or remain in the UK, deprivation can help reduce the direct threat an individual poses to the UK — for example, by precluding him or her from involvement in the development of terrorist networks, the provision of terrorist support or training and the preparation of terrorist attacks on the UK.69

In addition, it is just one of a number of tools that can be used to disrupt the national security threat posed by certain individuals, either on its own or in conjunction with other immigration powers.70

On the other hand, in France cancellation of citizenship appeared to be the only way for the national community to sanction those who ‘[…] aim at destroying the social bond’.71 What this exclusionary judgment sought was to enable the nation to redefine itself. This judgment can be linked to the argument developed by Bridget Anderson that a national polity is now a ‘community of values’. She writes that a community of values is comprised of good citizens who are defined from the outside by the noncitizen and from the inside by the failed citizen. She finds that the delineation of ‘them’, that is, the outsider and the failed citizen, helps to define ‘us’, the good citizens.72 There is strength for her argument in the justification advanced by the French Prime Minister for the extension of cancellation of citizenship. Indeed, according to the Prime Minister, the provision was a way of strengthening the French community:

 68

HC Deb 30 Jan 2014, vol 574, col 1046 (Immigration Bill). HL Deb 17 March 2014, vol 753, col 59 (Immigration Bill). 70 ibid. 71 JO, Assemblée Nationale, Parliamentary Debate (5 February 2016) 1003. 72 Bridget Anderson, Us and Them?: The Dangerous Politics of Immigration Control (Oxford University Press 2013). 69

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Chapter Three it is not a way to distinguish, it is, on the contrary, a way to establish what unites us.73

He further noted, with reference to Ernest Renan, the French political thinker who introduced the subjective idea of the nation, that to be us (i.e. to be French) is ‘an everyday plebiscite’ which develops around the sharing of the values of equality, openness and tolerance, in order to build together a shared future.74

This image can be linked to the national vision of citizenship developed in France from the 19th century. Citizenship is an active process which requires acting according to certain values. This image was also present in Theresa May’s introduction of the UK Bill. The British government stressed the symbolism of the measure, namely, to impose sanctions on an individual whose actions are inconsistent with the values attached to British citizenship which are, as Mrs May put it, encapsulated by the oath that naturalized citizens take when they attend their citizenship ceremonies.75

This image also fits within public discourses on values that have been present in the British society since the beginning of the 21st century. It can therefore be noted that, despite this blunt comparison (the practical-versussymbolic approach to the cancellation of citizenship), there are some common patterns in both political debates. Indeed, the issue of statelessness led both second houses (the House of Lords and the Senate), to refute the Bills at first reading. The Senate refused to endorse the text from the National Assembly as the text refused to distinguish between citizens, thus not implementing a provision against statelessness; and the House of Lords refused to endorse the 2014 Bill at first reading as it did not provide enough safeguards against statelessness. Both refusals can be linked to the image of citizenship developed by Arendt. Arendt developed her ideas of citizenship by contrasting it with an absolute lack of rights for stateless people. For Arendt, citizenship is fundamental because it links an individual to a state. Without a state to implement them, rights remain merely black letter law. In other words, she seeks to operationalise rights through citizenship by giving them a state’s

 73

JO, Assemblée Nationale, Parliamentary Debate (5 February 2016) 1003. ibid 75 HC Deb 30 Jan 2014, vol 574, col 1042. 74

Images of Citizenship at Points of Rupture between the Citizen and the State 47

forum, which explains why she considers citizenship as the ‘right to have all rights’.76 However, an Arendtien image of citizenship does not see citizenship as encompassing any more than this connection. In other words, it does not engage with citizenship as belonging in a community of equals (i.e. citizenship and the community of citizens). Yet this image, which associates citizenship with equality by creating a horizontal connection between citizens, was also present in the debates. It was mainly mobilised in the French National Assembly and, at times, in the House of Lords. In the UK, in the Lords, Baroness Smith of Basildon wondered if there existed other areas of the laws which differentiated between citizens according to their mode of entry into citizenship and created classes of citizens. She noted that this conditioned citizenship for some individual citizens, in that it became a privilege for some and a right for others: My understanding was that if someone was a naturalized British citizen, he or she had all the rights and responsibilities of any other citizen. That is changed by this legislation. I was asking whether any other area of law is responsible.77

In the National Assembly, the issue of a distinction between citizens potentially breaching the equality of all citizens before the law led to the endorsement of an amendment to the proposal where the deputies found that no distinction between natural-born and naturalised citizens and single and dual nationality holders should be enshrined in the constitution. As the socialist MP Lagarde put it: we judge individuals for actions that they have committed. We don’t judge them according to their heredity, to their parents, to their origins. It is a fundamental principle of the Republic. And for us, it is impossible to derogate from this principle as there is only one category of French people.78

The issue of the breach of equality prompted by the 2016 proposal led to the refusal to endorse a piece of legislation that would distinguish between citizens. The refusal of the French Senate to endorse a text that would not introduce a provision against statelessness and which, in effect, would introduce a distinction between citizens refused by the National Assembly led to the blocking of the text. Thus the French President

 76

Hannah Arendt, The Origins of Totalitarianism (2nd ed, Allen & Unwin 1958). HL Deb 12 May 2014, vol 753, col 1690 (Immigration Bill). 78 JO, Assemblée Nationale, Parliamentary Debate (5 February 2016) 1011. 77

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eventually dropped the proposal in March 2016. On the other hand, the provision was enacted in the UK subject to an increase in the safeguards against statelessness (i.e. the Home Secretary has to make a statement that the provision is not making the individual stateless at the time the order is issued, and the powers are subjected to periodic review). Both parliamentary debates have highlighted the different images of citizenship present in both countries. In France, the national enshrinement of the universal aims of the revolutionaries has meant that this project is now competing with other values of the nation, reflected here in the impossibility of both Houses to agree on which vision of citizenship to endorse. This conflict of values is particularly evident in the comment of the deputy Candelier: for our part Mr President we chose: we want no breach of equality nor statelessness.79

On the other hand, in the UK the predominantly practical image of citizenship, which has usually consisted of different status for individual citizens and has been more responsive to the political context of the day, has led to the endorsement of the measure.

Conclusion Despite the two approaches to the cancellation of citizenship being inherently different, reflecting the contrast between a symbolical and a pragmatic approach to citizenship, both would seem to fit within the resurgence of the allegiance–protection image of citizenship as subjecthood where a default of loyalty prompts the practical sanction of a cancellation of the connection between the individual and the sovereign state.80 In addition, it is unclear whether the reason for the dropping of the amendment to the French Constitution was the product of the highly symbolic status of citizenship within the French polity, which would remain despite the threat to national security, or if it is due to the strictness of the procedure for revising the Constitution. A revision of the Constitution necessitates an agreement on the same text by both houses (without the possibility of giving the last word to the National Assembly as in the ‘normal’ procedure) and an adoption of the text by a majority of three-fifths of both houses gathered in the Congress in Versailles (article

 79

JO, Assemblée Nationale, Assemblée Nationale Debate: Article 2 Protection de la Nation (9 February 2016) 1152. 80 Lenard, Little and MacDonald (n 6).

Images of Citizenship at Points of Rupture between the Citizen and the State 49

89 of the French Constitution), a rather unlikely outcome for the French government to achieve. For some, this proposition was, in effect, a political action in the context of a national security crisis. Scheppele writes that, in the aftermath of an ‘emergency crisis’, sovereign states implement emergency legal frameworks usually characterised by a restriction of civil liberties and greater deference from Parliament and the courts to the executive.81 Neal goes further by arguing that governments need to be seen by society to be ‘doing something’ to answer the threat.82 There is support for this argument in the comments of the Conservative deputy KosciuskoMorizet before the National Assembly. She contested the legal limbo in which the French President was engaged and argued that on top of being futile (i.e. without practical effects in the fight against terrorism), playing with the different meanings of citizenship embedded in French culture was dangerous. As she put it With regards to cancellation of citizenship, you have said everything and its contrary depending on who you were talking to […] It is neither a practical measure nor a symbol, it is a political manipulation. […] My Right Hons Friends, this article is useless. It divides political parties and society and should therefore be dropped.83

Whether resistance to the emergency legal framework in matters of highly symbolic value is due to the importance of the symbolism remains to be seen. But, all in all, the rigidity of the French constitutional process is also an expression of the will to embed certain values within society by making it harder to repeal or modify them. Thus, it seems that the current domino effect on cancellation of citizenship measures amongst Western countries as part of a more general emergency legal framework can still be resisted by procedural mechanisms that form the Etat de droit/rule of law.

 81

Kim Lane Scheppele, ‘Law in a Time of Emergency: States of Exception and the Temptations of 9/11’ (2004) 6:5 Journal of Constitutional Law 1001. 82 Andrew Neal, ‘“Events dear boy, events”: Terrorism and security from the perspective of politics’ (2012) 5 Critical Studies on Terrorism 107. 83 JO, Assemblée Nationale, Assemblée Nationale Debate: Article 2 Protection de la Nation (9 February 2016) 1163.

CHAPTER FOUR THE FUTURE OF THE RIGHT TO EDUCATION IN THE UK: THE CHALLENGE OF ANTI-RADICALISATION MEASURES DAVID BARRETT The US Government has reported that in 2015 there were 11,774 terrorist attacks globally which resulted in 28,328 deaths and 35,320 people injured.1 Notable recent attacks include the 2011 Norway Attacks, bombings in Turkey in 2015 and 2016, the Paris Attacks in 2015 and the Brussels attacks in 2016. In contrast to earlier terrorist attacks (e.g. the 9/11 attacks on the World Trade Centre) these attacks were committed by the state’s own citizens. The perpetrators had become radicalised and subsequently committed terrorist atrocities on home soil for an international cause. At the same time, states have also seen their radicalised citizens go abroad to commit terrorist acts there. According to the former UK Foreign Secretary, over 1,000 people have sought to travel from the UK to Syria to join so-called Islamic State.2 There is no agreement amongst researchers about the factors that lead individuals to become terrorists.3 However, what all theorists agree on is that it is a gradual process and that there will be stages of visible

 1

National Consortium for the Study of Terrorism and Responses to Terrorism, ‘Statistical Information on Terrorism in 2015’ (U.S. Department of State) accessed 12 April 2017. 2 Patrick Wintour and Shiv Malik, ‘Hundreds of Britons caught trying to join jihadis, says foreign secretary’, The Guardian (London, 15 January 2016) accessed 17 December 2016. 3 For example, Kris Christmann, Preventing Religious Radicalisation and Violent Extremism: A Systematic Review of the Research Evidence (Youth Justice Board 2012) 31.

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individual change as individuals become more extreme in their views.4 Consequently, it is believed possible for governments to both counter the factors that are said to lead to radicalisation (counter-radicalisation), while at the same time identifying individuals who are becoming radicalised and intervening during the process to prevent radicalisation (de-radicalisation). Education is seen as a particularly crucial vehicle for tackling radicalisation.5 However, it is not clear that anti-radicalisation measures and the provision of education are easily compatible. This is because, whereas schools aim to educate and transform their pupils giving them a safe environment in which to explore ideas, anti-radicalisation measures have been argued to require teachers to treat pupils as potential suspects, constantly scrutinising them for any sign of radicalisation.6 Thus this chapter seeks to explore the extent that the UK has managed to reconcile the implementation of anti-radicalisation measures within schools with the right to education. It begins by outlining the central tenets of the right to education, before going on to discuss the UK’s anti-radicalisation measures. The rest of the chapter then discusses how the central tenets of the right to education are realised in the English education system and explores how the UK’s anti-radicalisation measures in education impact on its ability to live up to these principles.

The Right to Education There are numerous wide-ranging rights to education contained within international and supranational treaties. This chapter focuses on five central aspects that emerge from rights in four major human rights documents: Article 2 Protocol 1 and Article 14 of the European Convention on Human Rights (ECHR), Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 29 of the Convention on the Rights of the Child (CRC), and the UNESCO Convention Against Discrimination in Education.

 4

ibid 10, 21. Council of Europe Committee of Ministers CM (2015)74 (19 May 2015); United Nations General Assembly Res 70/291 (1 July 2016). 6 Stijn Sieckelinck, Femke Kaulingfreks and Micha De Winter, ‘Neither Villains Nor Victims: Towards and Educational Perspective on Radicalisation’ (2015) 63(3) British Journal of Educational Studies 329. 5

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Education should Prepare Children for the Future The requirement that education should prepare children for the future can be found in Article 13 of the ICESCR. Paragraph 1 of Article 13 outlines that one of the aims of education is to ‘enable all persons to participate effectively in a free society’. A similar provision is also contained in Article 29(1)(d) of the CRC.

Education should Promote Understanding, Tolerance and Friendship among Different Racial, Ethnic and Religious Groups The requirement that education should promote understanding, tolerance and friendship among different racial, ethnic and religious groups is found in Article 13(1) of the ICESCR, Article 29(1)(d) of the CRC and in Article 5(1) of the UNESCO Convention. It has not been expanded upon by either the Committee on Economic, Social and Cultural Rights or the Committee on the Rights of the Child.

Education should be Acceptable to a Parent’s Religious Convictions The right of education to be acceptable to a parent’s religious convictions can be found in Article 2 Protocol 1 of the ECHR, Article 13(3) of the ICESCR and in Article 5(2) of the UNESCO Convention. Under Article 2 of Protocol 1 of the ECHR religious convictions are those that come from known religions (e.g. Islam or Jehovah’s Witnesses).7 Acceptability requires more than just acknowledging parents’ religious convictions – state parties must give genuine consideration to accommodations and ensure fair treatment of minorities.8 States can provide objective knowledge about religions through their education systems providing it is delivered in a critical and pluralistic manner but cannot pursue the aim of indoctrination.9

 7

Valsamis v Greece (1997) 24 EHRR 294. ibid. 9 Kjeldsen, Busk Madsen and Pedersen v Denmark (1979-80) 1 EHRR 711; Folgerø v Norway (2008) 46 EHRR 47. 8

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Education should be Acceptable to Pupils The requirement that education is acceptable to pupils can be found in Article 13 of the ICESCR and Article 29 of the CRC. This requires that the form and substance of education should be acceptable in terms of relevance and cultural appropriability to pupils.10 The Committee on the Rights of the Child has emphasised that children do not lose their human rights when they pass through the school gates and thus states should provide education that ensures children’s other rights are secured. The Committee particularly stress the importance of Article 12 (respect for the views of the child) in ensuring education is acceptable to pupils. This requires that pupils should be able to express their views concerning their education and actively participate in school life.11

Education should be Non-Discriminatory That education should be non-discriminatory is established by all four of the treaties examined (Article 2 Protocol 1 in conjunction with Article 14 of the ECHR, Article 13 in conjunction with Article 2(2) of the ICESCR, Article 29 in conjunction with Article 2(1) of the CRC and Article 1 of the UNESCO Convention).12 The UNESCO Convention prohibits any distinction, exclusion, limitation or preference based on a range of grounds (including race, colour, religion, opinion and national/social origin) which has the purpose or effect of nullifying or impairing equality of treatment in education.13 The rights in the ECHR, ICESCR and CRC are wider, as, in addition to prohibiting discrimination on a range of listed grounds, they also prohibit discrimination on grounds of ‘other status’, meaning potentially any ground is included.14 In terms of discrimination, Article 14 of the ECHR

 10 CESCR, ‘General Comment 13’ (8 December 1999) UN DOC E/C.12/1999/10 [6]. 11 CRC, ‘General Comment 1’ (17 April 2001) UN DOC CRC/GC/2001/1 [8]. 12 Articles 2(1), 2(2) and 14 of the CRC, ICESCR and the ECHR respectively, are not free-standing rights to non-discrimination but prohibit discrimination in the implementation of the other rights in the treaty. Thus they prohibit discriminatory implementation of the right to education. 13 Convention Against Discrimination in Education, Art 1. 14 For example, the European Court of Human Rights have found discrimination is prohibited on grounds such as sexual orientation (Fretté v France (2004) 38 EHRR 21) and the CESCR on grounds such as economic and social situation (CESCR, ‘General comment 20’ (2 July 2009) UN DOC E/C.12/GC/20).

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and Article 2(2) of the ICESCR specifically prohibit both direct discrimination (where an individual is treated less favourably than another person in a similar situation for a reason related to a prohibited ground) and indirect discrimination (where laws, policies or practices which appear neutral at face value, have a disproportionate impact on members possessing a prohibited grounds of discrimination).15

Limitations and Conflicts It should be noted that the majority of the rights discussed are not absolute and that in some circumstances states are justified in not complying with them. In order for any limitation to be permitted it must be both necessary and a proportionate means of achieving a legitimate aim.16 In terms of proportionality, the level of scrutiny will depend upon the severity of the interference, the context of the interference and the nature of the reason for the interference. In terms of the severity of the interference, the more severe the interference, the more intensive the degree of scrutiny by the court. Thus, under Article 14 of the ECHR, some grounds of discrimination (such as nationality,17 race,18 and religion19) attract a high level of scrutiny, with very weighty reasons required to justify discriminatory treatment. In terms of the context of the interference, under Article 2 Protocol 1 of the ECHR, the state’s margin of appreciation and hence the degree of court scrutiny, varies depending on the level of education.20 Thus measures that interfere with Article 2 Protocol 1 in the context of primary education are subject to a significantly higher level of scrutiny than interferences that occur in the context of higher education. Finally, a state’s margin of appreciation and hence the level of scrutiny of the court is also affected by the nature of the reason for the interference. The European Court of Human Rights has recognised certain areas where states have a wide margin of appreciation. These include cases involving national security (providing the threat to national security has a reasonable

 15

Marckx v Belgium (1979-80) 2 EHRR 330; DH and others v Czech Republic (2008) 47 EHRR 3; CESCR (n 14) [10]. 16 For example CESCR (n 14) [13]. 17 Gaygusuz v Austria (1997) 23 EHRR 364. 18 Timishev v Russia (2007) 44 EHRR 37. 19 Hoffmann v Austria (1994) 17 EHRR 293. 20 Ponomaryov v Bulgaria (2014) 59 EHRR 20 [56]. Article 2 Protocol 1 does not contain an explicit limitation provision but has been recognised as implicit within the wording of the right: ùahin v Turkey (2007) 44 EHRR 5 [154].

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basis)21 and where a state is required to strike a balance between competing interests or different rights.22 Additionally, under the ICESCR there is a strong presumption of the impermissibility of any retrogressive measures (i.e. those that reduce protection). Where measures are retrogressive states must prove that they considered alternatives, it is fully justified by reference to the totality of rights provided in the ICESCR and utilises the state’s maximum available resources.23 The fact that many of the rights to education can be justified is important as there is potential for action to realise one tenet conflicting with action to realise another tenet. For example, providing education that promotes understanding, tolerance and friendship (tenet 2) may lead states to teach pupils different religions, however, this could conflict with a parent’s right to opt out or be accommodated in the religious teachings of schools (tenet 3). Additionally, providing education that prepares children for the future (tenet 1) may not be acceptable to pupils (tenet 4). The ability to justify interferences with these rights is important in allowing the different principles to be reconciled. The next section of the chapter will briefly discuss the UK’s anti-radicalisation measures in education. The chapter will then examine how the UK addresses these tenets of the right to education within the English education system and explore the impact the UK’s anti-radicalisation measures are having upon the UK’s ability to do this.

The UK’s Anti-Radicalisation Measures Section 26 of the Counter-Terrorism and Security Act 2015 creates a general legal duty that requires that: ‘A specified authority must, in the exercise of its functions, have due regard to the need to prevent people from being drawn into terrorism’. The Duty is discussed in more detail elsewhere,24 but it applies to a wide range of public bodies including schools.25 Schools are required to engage in two different types of activity in an attempt to prevent radicalisation. First, they should build pupils’ resilience to radicalisation (i.e. counter-radicalise) by promoting

 21

Klass v Germany (1979-80) 2 EHRR 214; Janowiec v Russia (2014) 58 EHRR 30. 22 Evans v UK (2008) 46 EHRR 34. 23 CESCR, ‘General comment 3’ (1 January 1991) UN DOC E/1991/23 [9]; CESCR (n 10) [45]. 24 David Barrett, ‘Tackling radicalisation: the limitations of the anti-radicalisation Prevent duty’ (2016) 5 European Human Rights Law Review 530. 25 Counter-Terrorism and Security Act 2015 Schedule 6, part 1.

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fundamental British values of democracy, the rule of law, individual liberty and tolerance of those with different faiths and beliefs.26 Through this pupils should gain an understanding of how citizens can influence decision-making through the democratic process, that the freedom to choose and hold different faiths and beliefs is to be accepted and tolerated and is protected by law, and of the importance of identifying and combatting discrimination. Secondly, schools should be vigilant for children who are at risk of radicalisation and take action to de-radicalise. This requires schools to undertake regular risk assessments to ensure they possess a general understanding of the risks in their area alongside a specific understanding of how to identify individual children who may be at risk of radicalisation. As part of this staff should undergo training, although the guidance recognises that there is no single way of identifying children who are likely to be susceptible to terrorist ideology and so staff should use their ‘professional judgement’. Where staff identify a pupil they are concerned about they should have procedures in place to address this, knowing when to intervene themselves and when to refer the pupil to Channel (the government’s de-radicalisation programme).27 Recognising this important role for schools, compliance with these anti-radicalisation measures forms an important part of the schools Ofsted inspection. Ofsted outline that the best schools will have British values at the heart of all that they do and respond swiftly to concerns about radicalisation.28 The consequences of non-compliance with Prevent are particularly severe with non-complying schools ultimately being subject to intervention by the Department of Education (in the case of community schools) or having their funding agreement terminated (in the case of academies and free schools).29 The rest of the chapter will discuss how the UK currently attempts to adhere to the five tenets of the right to education discussed above and how the UK’s anti-radicalisation measures impact upon their ability to do this.

 26 Department for Education, ‘The Prevent duty: Departmental advice for schools and childcare providers’ (DfE 2015) 5-6. 27 ibid. 28 Ofsted, ‘School inspection handbook: Handbook for inspecting schools in England under section 5 of the Education Act 2005’ (Ofsted 2016) 42. 29 HM Government, Revised Prevent Duty Guidance: for England and Wales (HM Government 2015) 12.

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Anti-Radicalisation and the Right to Education The chapter earlier sketched out five central tenets of the right to education: (i) education should prepare children for the future; (ii) it should promote understanding, tolerance and friendship among different racial, ethnic and religious groups; (iii) it should be acceptable to a parent’s religious/philosophical convictions; (iv) it should be acceptable to pupils; (v) it should be non-discriminatory. The rest of the chapter will explore the measures taken in the English education system to achieve these tenets and the impact the anti-radicalisation measures have on the system’s ability to do this.

Education should Prepare Children for the Future An important part of the school curriculum is spiritual, moral, social and cultural education (SMSC) which schools are required to promote throughout the curriculum.30 The purpose of SMSC is to prepare children to become active and responsible citizens in the future. As part of SMSC schools should promote values such as encouraging pupils to become reflexive about their beliefs and experiences and to respect different people’s faith; to understand the consequences of their behaviour and actions and how to engage in reasoned debate; to require pupils to work and socialise with other pupils; to establish an interest in exploring, improving, understanding and showing respect for different faiths; to use their imagination and creativity in learning; to build a willingness to volunteer and to participate in cultural experiences; and to build in pupils an appreciation of the UK’s cultural diversity.31 Consequently, it can be argued that SMSC plays an important part in fulfilling the UK’s obligation to ensure education prepares children for the future as it provides them with the skills they need to participate in a free society (e.g. to understand the consequences of their actions, to engage in reasoned debate, to work alongside others). The requirement for schools to promote fundamental British values is intended to work alongside SMSC, with schools being encouraged to use the promotion of fundamental British values to demonstrate how they are complying with the requirement to provide SMSC.32 However, while SMSC is wide-ranging (intending to prepare all pupils to be future

 30

Education Act 2002 s 78(1)(a). Ofsted (n 28) 35-6. 32 Department for Education, ‘Promoting fundamental British values as part of SMSC in schools: Departmental advice for maintained schools’ (DfE 2014) 5. 31

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citizens), the promotion of fundamental British values is much narrower, focusing on a narrative that is intended to deter any would-be terrorists from radicalisation (i.e. requiring the promotion of respect for democracy, law and freedom of religion). Given the heavy emphasis placed on the promotion of fundamental British values by the government and Ofsted, the positioning of this agenda alongside SMSC acts to significantly narrow the breadth of SMSC. Thus, while SMSC requires schools to ensure pupils work alongside and socialise with other pupils, the Ofsted handbook specifically focuses on ensuring pupils mix with different religious and ethnic backgrounds.33 This focus overlooks other important distinctions that equally need to be overcome, such as ones of gender, sexuality and disability. However, the emphasis on anti-radicalisation and fundamental British values risks overshadowing the need to tackle these other distinctions. Furthermore, the linking of compliance with promoting fundamental British values and compliance with SMSC risks lessening compliance with SMSC. If schools complying with the promotion of fundamental British values is sufficient to comply with SMSC, as the guidance suggests, many aspects of SMSC can be ignored (e.g. the use of imagination and creation in learning, the value of volunteering and willingness to participate in cultural experiences). Consequently, schools’ preparation of pupils for the future becomes very limited, with them being encouraged to heavily focus upon preparing pupils to resist radicalisation. While resisting radicalisation is important, this risks leaving children unprepared for a wide range of other aspects of participating in a free society such as challenging other types of discrimination (e.g. gender and disability), using imagination and creativity and participating in cultural experiences. Additionally, the Prevent duty can also curtail schools delivering SMSC and thus preparing children for the future. Although the duty is not intended to stop pupils exploring controversial issues, it has been utilised in some schools in a manner which acts to curtail the exploration of certain topics. This can undermine deliverance of SMSC and consequently the requirement for schools to prepare pupils for the future. For example, a 12-year-old Muslim pupil was sanctioned by his school, when during a drama lesson where pupils were asked to act out a tense and melodramatic scene, he played a terrorist holding a reporter (played by a fellow pupil) hostage at gunpoint in Africa.34 This shows imagination and creativity (encouraged by SMSC) and knowledge of current affairs (essential for

 33

Ofsted (n 28) 35. Open Society Justice Initiative, The UK’s PREVENT Counter-Extremism Strategy in Health and Education (Open Society Foundations 2016) 74-6. 34

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effective participation in a free society). However, development of these skills was undermined by the school’s actions under the Prevent duty.

Education should Promote Understanding, Tolerance and Friendship among Different Racial, Ethnic and Religious Groups There are two main measures that require schools to promote understanding, tolerance and friendship among different racial, ethnic and religious groups. The first, discussed above, is SMSC. The second measure, is the public sector equality duty, part of which requires schools to consider how to foster good relations between different groups, which includes different racial, ethnic and religious groups. The promotion of fundamental British values and the Prevent duty impact on the ability of schools to promote understanding, tolerance and friendship under SMSC and the public sector equality duty. In terms of SMSC, the promotion of fundamental British values can mean the focus is too heavily on teaching and practising Christianity, which if done outside of religious education means parents are unable to opt their children out of these practices. This potentially infringes the third tenet of the right to education, the requirement that education is acceptable to the parents’ religious convictions (this is discussed in more detail below). In terms of the public sector equality duty and the fostering of good relations between different races and religions, the Prevent duty has the potential to undermine action. This is because the Prevent duty requires schools to identify individuals that they believe are being radicalised and either deal with them themselves or refer them to Channel. Thus far the majority of referrals to Channel by schools have been of Muslims (discussed in more detail in relation to the fourth and fifth tenets below).35 Singling out individuals for anti-radicalisation activities or referring them to Channel separates them from other pupils and risks communicating to other pupils that these pupils are different and thus should be treated as such. Additionally, Ofsted defines the best schools (‘outstanding’ ones) as schools that respond to concerns about radicalisation ‘swiftly’.36 This incentivises schools to act quickly over even the slightest concern,

 35

‘Referrals over radicalisation ‘double in a year’’ (BBC, 22 February 2016) accessed 29 December 2016. 36 Ofsted (n 28) 42.

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increasing the chances of their making mistakes. Consequently, a high majority of referrals made by schools have resulted in no further action.37 The combination of focusing on Muslims and being incentivised to act quickly undermines the promotion of understanding, tolerance and friendship among different racial, ethnic and religious groups. For example, in one school a group of nine-year-old boys were discussing how they planned to travel to the school prom in a limousine full of chocolate. One of the boys said to his Muslim friend that he would not be able to attend the prom because of his religion so he would miss out on the limousine and chocolate. The Muslim boy joked he would use bombs and guns to get the chocolate at which they all laughed. Later in the day one of the group of boys relayed the conversation to another pupil, who got scared and reported the incident to a teaching assistant. The Muslim boy was subsequently questioned about the incident by the headteacher who asked if he possessed weapons and if not where he could obtain weapons from. The parents were later informed of the incident and it was also referred to the Prevent authorities where it was decided no further action needed to be taken.38 This action, which was required under the Prevent duty, resulted in the pupil becoming increasingly reserved, which acted to reduce his mixing with other pupils and consequently undermining the promotion of understanding, tolerance and friendship within the school.

Education should be Acceptable to a Parent’s Religious Convictions There are four main ways religion can enter a school’s curriculum. The primary method is via religious education lessons which all state maintained schools are required to provide.39 These lessons should focus on Christianity but should also cover the teachings and practices of other principal religions.40 The content is determined by the Local Authority in consultation with a standing advisory council composed of members of local faith groups, teachers and members of the authority.41 All schools must follow the Local Authority’s agreed syllabus except faith schools which are able to determine their own religious education curriculum in

 37

Letter from Sherry Traquair to M Khan (7 January 2016). Open Society Justice Initiative (n 34) 69-72. 39 Education Act 2002 s 80(1)(a). 40 Education Act 1996 s 375(3); Department for Children, Schools and Families, Religious education in English schools: Non-statutory guidance 2010 (DCSF 2010) 23. 41 Education Act 1996 ss 390-391. 38

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accordance with their religious designation.42 Alongside religious education, schools should provide a daily act of collective worship that should wholly or mainly be of a broadly Christian character.43 The second way is, as discussed above, via the requirements of SMSC which aims to improve understanding, respect and tolerance towards different religious and ethnic communities, which should be integrated across the curriculum.44 A third way is via Citizenship lessons in Key Stage 4 (when pupils are aged 14-16) where the national curriculum requires that pupils are taught about diverse national, regional, religious and ethnic identities in the UK and the need for mutual respect and understanding.45 Finally, academies and free schools do not have to follow the national curriculum. Their governance framework is determined by the funding agreement they conclude with the Department for Education. Consequently, religion can influence their teaching of other areas of the curriculum (e.g. history). There are certain limits of what they can teach though (e.g. they are not permitted to teach creationism as an alternative to evolution).46 There are thus three potential ways schools can address religion in the curriculum. They teach religion (i.e. transmit the teachings and practices of religion(s)); they teach about religion (i.e. provide a general overview of different religions, their history, geographical bases etc); and some schools can teach religiously (i.e. teach the curriculum from a religious standpoint). This distinction is important as it provides a way of reconciling potentially conflicting tenets of the right to education (i.e. the promotion of understanding and tolerance of different racial, ethnic and religious groups with the right of parents to have their children educated in accordance with their religious convictions). Religion is taught via religious education lessons and the daily collective act of worship. These comply with a parent’s right to have the child taught according to their religious convictions as parents can opt out of their children receiving religious education and the act of collective worship provided by their child’s school.47 Where a parent withdraws their

 42

Department for Education, ‘Governance Handbook: For trustees of academies and multi-academy trusts and governors of maintained schools’ (DfE 2015) 40. 43 School Standards and Framework Act 1998 s 70(1) Sch 20 (3)(2). 44 Ofsted (n 28) 35-6. 45 Department for Education, ‘Citizenship programmes of study: key stages 3 and 4’ (DfE 2013) 3; Education Act 2002 s 80(1)(b). 46 Department for Education, ‘Mainstream academy and free school: single funding agreement’ (DfE April 2016) 26. 47 School Standards and Framework Act 1998 s 71.

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child from religious education, the local authority and school should try and make alternative arrangement for the religious education of the kind the parents wants the pupil to receive.48 Thus UK law allows parents to opt out of the teaching of religion and if desired, requires that authorities try to provide the religious education/worship that the parents want for their child. This is likely to comply with the right of education to be acceptable to parents’ religious convictions as it allows for parents to opt out/be accommodated in religious education. This is further supported by the right of academies and free schools to depart from the national curriculum and thus teach religiously. Consequently, if parents wish they can opt to send their children to schools where their religious convictions influence the whole curriculum. Although parents can opt out of religious education and can avoid sending their children to faith academies and free schools if they desire, they cannot opt out of other lessons (such as history, citizenship and SMSC).49 Consequently, it is not possible to opt out of pupils being taught about religions. This ensures that all pupils gain an understanding of other races and religions that underpin the development of tolerance and friendship between different groups (the second tenet of the right to education). By maintaining this distinction between mandatory teaching about religion (in an objective, critical and pluralistic manner) and optional teaching of religion/teaching religiously, the UK ensures it achieves a fair balance between the second and third tenets of the right to education (i.e. promoting understanding, tolerance and friendship among different racial, ethnic and religious groups and education being acceptable to parents’ religious convictions). The requirement for schools to promote fundamental British values potentially blurs this delicate distinction though. This is because the promotion of fundamental British values requires schools to promote tolerance of those with different faiths and beliefs throughout the curriculum.50 Due to the emphasis placed on British values, coupled with the weight placed upon their promotion by the government and Ofsted, there is a danger that schools focus upon the promotion of Christianity at the expense of teaching pupils about other religions. If this takes place within religious education/the act of collective worship, it is unproblematic as parents can opt out of their children attending these. However, if the promotion takes place in other subjects, as the guidance of both the government and Ofsted suggest it should, this is problematic as parents

 48

ibid s 71(3). Department for Children, Schools and Families (n 40) 28. 50 DfE (n 26) 5-6. 49

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cannot opt their children out of other subjects. For example, when a Muslim father objected to his son attending a school trip which would involve worshipping in a Christian church he was told that pupils were required to do this as part of schools being required to promote fundamental British values. When the father asked whether an alternate trip could be arranged that would not infringe his religious convictions (accommodation) or if not whether his son could be excused from visiting the church (opting out), the school refused both requests.51 This blurring of teaching about religion with the teaching of religion also potentially undermines attempts to tackle radicalisation. This is because where religion is taught in subjects other than religious education, and parents do not want their children to receive this teaching, as they cannot opt their child out of these lessons, the only other option is to take their child out of the school, either moving them to a different school, or homeschooling the child.52 This is problematic in terms of radicalisation as if parents are dissatisfied with the general approach within schools there are a growing number of increasingly extremist religious schools being established that parents can send their children to (for example the Trojan Horse schools in Birmingham or the Accelerated Christian Education Schools).53 Although these are inspected by Ofsted it can take a while before their extreme nature is discovered and they are overseen by the state. Homeschooling is even more problematic in terms of radicalisation as the parents (or whoever they choose to educate their child) can teach the child whatever they wish and there is only very weak monitoring of this by external bodies and no monitoring in terms of radicalisation.54 Alive to the risk of radicalisation in homeschooling the government is investigating

 51

Open Society Justice Initiative (n 34) 76-8. Education Act 1996 s 7. 53 ‘Trojan Horse ‘plot’ schools timeline’ (BBC, 16 July 2015) accessed 6 January 2017; Siobhan Fenton, ‘Children ‘at risk’ in Christian fundamentalist schools in the UK, warns government watchdog’ The Independent, (London, 1 January 2017) accessed 6 January 2017. 54 Local authorities are under a duty to identify children not registered at a school or who are not receiving suitable education otherwise (Education Act 1996 s 436A). Under this duty, the courts have recognised that local authorities can make ‘informal enquires’ about home schooling to satisfy themselves that children are receiving suitable education (Phillips v Brown (QBD, 20 June 1980)). 52

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ways of addressing these concerns. 55 However, an effective method would be to deter parents from home-schooling by ensuring the education provided in school is as acceptable to them as possible. Maintaining the distinction between teaching religion in religious education/the daily act of collective worship and teaching about religions in other areas of the curriculum is crucial in doing this. Yet, the promotion of fundamental British values throughout the curriculum blurs this delicate distinction.

Education should be Acceptable to Pupils The fourth tenet of the right to education requires that the form and substance of education should be acceptable to pupils with pupils able to express their views about their education. The UK has sought to achieve this by increasingly involving pupils in educational decisions that affect them via the policy of pupil voice.56 Pupil voice requires that schools engage pupils as active participants in their education and encourage them to make a positive contribution to the school and their local community through mechanisms such as school councils and pupil advocacy.57 This encourages pupils to be active democratic citizens as adults (which the promotion of fundamental British values seeks to achieve) and contributes to increasing their educational attainment (with low-attainment being a potential cause of radicalisation).58 Potential problems include that, even if schools put in place mechanisms for pupils to provide a voice, some pupils are more willing/able to do this and so, as a default, it tends to be white middle-class pupils who put themselves forward to participate, which means that the outcomes that result tend to favour the historically privileged majority. There is also a tension between providing students with real power and influence across the governance of the school (which the government and researchers encourage) and at the same time fencing off significant aspects of school governance over which pupils can have no voice or influence. This risks communicating to pupils that democracy is tokenistic and a

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‘Home-school families face potential investigation over ‘radicalisation risk’ The Guardian (London, 20 December 2015 accessed 29 December 2016. 56 Education Act 2002 s 176. 57 Department for Education, “Listening to and involving children and young people” (DfE 2014). 58 Julia Flutter and Jean Rudduck, Consulting pupils: what’s in it for schools? (Routledge Falmer 2004).

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sham.59 Pupil voice is an important part of the provision of education by schools with 99% of schools in England having measures in place that enable pupils to have a say in the running of the school and 95% of schools having a school council.60 The UK’s anti-radicalisation measures can undermine pupil voice within schools in a number of ways. First, as discussed above, the Prevent duty requires schools to identify pupils who are at risk of radicalisation and either take action themselves to prevent radicalisation or, if the school consider it appropriate, refer the pupil to Channel. In 2015, 2,003 under 18s were referred to Channel (over double the amount that were referred in 2014). Around 69% of all referrals were of individuals exhibiting Islamist extremism and 15% exhibiting far-right extremism.61 Although there is no data available for schools directly there is nothing to suggest that they would not make referrals in a similar proportion (i.e. nearly five Muslims pupils for every non-Muslim pupil). The majority of all Channel referrals result in no further action being taken (64% of referrals resulted in no further action from April to September 2015).62 The number of pupils that schools deal with internally is likely to be significantly higher than the number they refer to Channel and there is nothing to suggest that schools would not identify students in similar proportions (5:1). Consequently, there is likely to be a significant number of Muslim students, who have been wrongly referred and thus disgruntled with their teachers and the school. Given these concerns, Muslim students are significantly less likely want to be involved in their school’s participation processes. This leaves the very real danger that pupil-determined school governance is determined by the non-Muslim majority. This is problematic as it is likely to result in rules and practices that favour non-Muslims which may not equally favour Muslims and could put Muslim pupils at a disadvantage.63

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Geoff Whitty and Emma Wisby, ‘Whose voice? An exploration of the current policy interest in pupil involvement in school decision-making’ (2007) 17(3) International Studies in Sociology of Education 303, 313-4. 60 UK Government, ‘Convention on the Rights of the Child: Fifth periodic report’ (CRC 2014) [187]. 61 BBC (n 35). 62 Letter (n 37). 63 Iris Marion Young, Justice and the Politics of Difference (Princeton University Press 1990) 75.

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This is likely to increase resentment in these students and heighten the risk of radicalisation.64 Secondly, even schools that take pupil voice seriously and give pupils real opportunity to determine school governance, are unlikely to give pupils any say in their Prevent policy, how the duty is discharged or how they promote fundamental British values within the school, given the importance placed upon these by the government and Ofsted. As Whitty and Wisby outline, giving students the power to be involved in school governance but then having significant areas of school governance that they can have no influence over risks communicating to pupils that democracy is limited, which again runs counter to the lessons that the promotion of fundamental British values is supposed to instil.

Education should be Non-Discriminatory All the rights to education discussed in this chapter require that education is non-discriminatory. This has been achieved in the UK via equality law, which schools are subject to. Historically, UK equality law adopted a negative model (i.e. it prohibited individuals and bodies from discriminating on the basis of prohibited characteristics). However, in the twenty-first century, the UK has been increasingly moving to a positive model where individuals and bodies have to take positive steps to achieve equality. This is primarily achieved by the public sector equality duty which requires public authorities (which includes schools) to consider exercising their functions in ways that eliminate discrimination, advance equality of opportunity and foster good relations.65 Schools can implement the public sector equality duty in various ways in order to remove any discrimination within education. For example, they can monitor attainment data and if there are any differences between groups take action to address these (such as inviting male authors into the school in an attempt to improve boy’s English scores), or they can take steps to accommodate certain groups within the school (e.g. providing prayer space for Muslims).66 As well as being subject to judicial review,

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Alex Schmid, ‘Radicalisation, De-Radicalisation, Counter-Radicalisation: A Conceptual Discussion and Literature Review’ (International Centre for CounterTerrorism 2013). 65 Equality Act 2010 s 149. 66 Department for Education, ‘The Equality Act 2010 and schools: Departmental advice for school leaders, school staff, governing bodies and local authorities’ (DfE 2014); Equality and Human Rights Commission, ‘Public Sector Equality Duty Guidance for Schools in England’ (EHRC 2014).

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compliance with the duty is also inspected by Ofsted.67 Although still not fully equal, schools have made huge strides in addressing educational inequality over the last two decades with them greatly improving pupil attainment, especially that of ethnic minorities.68 One of the main criticisms of Prevent is that it is discriminatory. However, the government suggests that Prevent is nothing particularly novel and instead simply builds upon the existing safeguarding responsibilities of schools.69 Safeguarding requires that schools take appropriate action if they notice signs of abuse or neglect in pupils, which schools manage to discharge in a non-discriminatory manner. It appears that radicalisation is very similar, in that schools should take appropriate action if they notice signs of radicalisation in their pupils. There are however, two significant differences between the safeguarding duty and the anti-radicalisation duty. First, the factors schools should look out for are significantly different. The signs of abuse/neglect are a lot more specific and observable than the signs of radicalisation. Signs of abuse and neglect include ill-fitting/dirty clothes, children avoiding specific family members, high absence, signs of injury, inappropriate knowledge of sexual activity and lack of concentration.70 Any member of staff in a school would not need to go out of their way to observe these signs with them being obvious during the course of their working day. In contrast, the signs of radicalisation potentially apply to all children as part of the move from childhood to adulthood. Thus, signs of radicalisation include changes in friendship groups, significant changes in appearance/clothing, rejecting the activities they used to enjoy, spending excessive amounts of time online/on the phone and being secretive and reluctant to discuss what they are doing.71 As these signs potentially apply to all children, teachers need to be extra vigilant and more scrutinising of pupils in order to discharge the duty. However, it is not clear, that subjecting pupils to such heavy scrutiny is

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Ofsted (n 28) 38, 44. Steve Strand, Ethnicity, deprivation and educational achievement at age 16 in England: trends over time (DfE 2015). 69 DfE (n 26) 5. 70 HM Government, ‘What do if you’re worried a child is being abused: Advice for practitioners’ (HM Government 2015) 6-10. 71 The government does not list the signs of radicalisation in any official document but they are listed on a website co-produced by the Department for Education and the Home Office: ‘What are the warning signs of radicalisation?’ (educate.against.hate) accessed 30 December 2016. 68

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compatible with their aim to educate and transform their pupils giving them a safe environment in which to explore ideas (the latter of which is crucial to Prevent). Thus, the Prevent duty could actually undermine attempts to tackle radicalisation. Furthermore, as the signs of radicalisation are so vague, schools are reliant on their own judgment. Many of the factors that the government argue lead to radicalisation are unique to ethnic and religious groups (e.g. the suffering of identity problems due to feeling distant from their cultural or religious heritage or the prevailing British culture or being the victim of racism or discrimination).72 Although the government reiterates that anyone can become radicalised, by making the duty legally mandatory; having vague, wide-ranging signs of radicalisation; and focusing more heavily on factors unique to ethnic and religious groups as causes of radicalisation, this encourages profiling and stereotyping by schools. This could account for such a disproportionate number of Muslims being referred to Channel (5 Muslim children referred to every 1 non-Muslim child) even though far right radicals pose an equally concerning threat.73

Limitations As noted above, many of the rights to education discussed are not absolute and thus limitations can be justified. In terms of justification, any measures must be both necessary and a proportionate means of achieving a legitimate aim (with severity, context and reason for the breach taken into account when determining the level of proportionality assessment). There is a strong presumption that retrogressive measures are impermissible. It was seen earlier that the UK has introduced two measures intended to tackle radicalisation in education: the promotion of fundamental British values and the Prevent duty and that both can be argued to undermine the UK’s ability to adhere to the five central tenets of the right to education identified at the start of the chapter. In terms of the promotion of fundamental British values by schools, while this can be argued to advance a legitimate aim (it has been introduced to prevent terrorism), it can be questioned whether it is necessary. This is because SMSC incorporates the content of fundamental British values as well as providing additional wider content important to

 72 ‘Which young people are vulnerable to radicalisation?’ (educate.against.hate) accessed 30 December 2016. 73 Clare Ellis et al, Lone-Actor Terrorism: Analysis Paper (Royal United Services Institute 2016).

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preparing children for the future (tenet one). At the same time the promotion of fundamental British values acts to limit and undermine the delivery of SMSC and blurs the teaching of religion (which under tenet three parents can opt out of) with the teaching about religion (which under tenet two parents cannot opt out) meaning it is likely to constitute a retrogressive measure. Consequently, the promotion of fundamental British values in schools is likely to infringe the right to education. In terms of the Prevent duty, as with the promotion of fundamental British values, it can be argued to advance a legitimate aim (again the prevention of terrorism). It can also be argued that it is necessary that some action is taken by the government as there is currently no measure similar to the duty (with the most similar measure, the safeguarding duty, focusing upon neglect and abuse and consequently having procedures in place to focus on these risks). In terms of proportionality, it does have particularly severe consequences as it results in discrimination on grounds of nationality, race and religion (and thus particularly weighty reasons will be required) and it takes place at all levels of the education system but the duty operating within primary schools would suggest a narrower margin of appreciation. In contrast, because the reason for Prevent is national security, this would suggest a wider margin of appreciation. Overall, it can be argued that while some form of Prevent is justified, all the potential infringements of the right to education occur due to schools feeling pressured from the threat of sanctions for non-compliance due to the placing of the duty on statutory footing. Consequently, a more right to education complaint approach would be to revert to the pre-duty position and just have a strategy. This would allow schools flexibility to tackle radicalisation in a more relaxed and open way and more easily reconcile this work with the deliverance of high-quality education.

Conclusion Terrorist atrocities committed both at home and abroad by a state’s own radicalised citizens are an increasing threat in the twenty-first century. Therefore, the UK, like many other states, has taken action in an attempt to prevent radicalisation occurring. The education sector is seen as particularly important in this regard as it is an area in which all children participate and thus is a means of reaching all future citizens. However, it is not immediately obvious that measures to tackle radicalisation are easily reconciled with a school’s primary role of educating future generations. This chapter has sought to explore whether the UK has reconciled antiradicalisation measures with the provision of education within schools. It

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began by outlining five central tenets of the right to education: (i) education should prepare children for the future; (ii) it should promote understanding, tolerance and friendship among different racial, ethnic and religious groups; (iii) it should be acceptable to a parent’s religious/philosophical convictions; (iv) it should be acceptable to pupils; and (v) it should be non-discriminatory. These provide a framework for which to assess the UK’s anti-radicalisation measures within education. Two aspects of the UKs anti-radicalisation measures were discussed, namely, the promotion of fundamental British values and the Prevent duty. In terms of the promotion of fundamental British values the chapter found that this measure was unnecessary because its content is delivered as part of the wider SMSC (which better prepares children for the future under the first tenet) and the introduction of fundamental British values into the curriculum acts to limit rather than support the delivery of SMSC. It also found that the promotion of fundamental British values blurs the delicate distinction (achieved through balancing tenets two and three) between the teaching of religion (which parents can opt pupils out of in accordance with the third tenet) and the teaching about religion (which parents cannot opt out in order to achieve the second tenet). In terms of the Prevent duty, the chapter found that it undermines pupil voice (a key tool in the UK adhering to tenet four) and encourages schools to act in a discriminatory manner (contrary to tenet five). It was argued that some form of anti-radicalisation measure is justified but that the previous more flexible Prevent strategy is preferable to the more rigid Prevent legal duty as this allows schools to tackle radicalisation in a more flexible and relaxed manner rather than over-complying in an effort to avoid legal repercussions. By respecting these lessons, the UK’s antiradicalisation measures in education can play an important role in tackling radicalisation, while at the same time ensuring it does not compromise the provision of high-quality education which is equally important for the UK to ensure a healthy, safe and prosperous future.



CHAPTER FIVE HUMAN RIGHTS AND THE RIGHT OF SILENCE HANNAH QUIRK

The right of a suspect to remain silent when questioned or charged, or the related privilege against self-incrimination, has been included in every major human rights instrument since World War Two.1 The one exception is the European Convention on Human Rights (ECHR), an omission that Roberts and Zuckerman regard as merely an oversight in what was an international human rights law prototype.2 The Committee of Experts subsequently set up to consider the differences between the international and European treaties confirmed that the privilege is the ‘very essence’ of a fair trial.3 It is included in the 1966 International Covenant on Civil and Political Rights (ICCPR) and the 1969 American Convention on Human Rights. By the late Twentieth Century, there appeared to be a developing groundswell of opinion that procedural measures which may have the effect of pressing suspects and defendants into speaking against their will are inimical to international human rights standards.4

 1

The 1981 African Charter on Human and Peoples’ Rights does not include the right of silence in the main text but it is included in the associated (non-binding) Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003 (secs M, N & O) accessed 27 June 2017. 2 Paul Roberts and Adrian Zuckerman, Criminal Evidence (Oxford University Press 2010) 555. 3 Council of Europe, Report of the Committee of Experts to the Committee of Ministers on the Problems arising from the Co-Existence of the UN Covenants on Human Rights and the European Convention on Human Rights (Council of Europe 1970) [141(vi)] accessed 27 June 2017. 4 Roderick Munday ‘Inferences from Silence and European Human Rights Law’ [1996] Criminal Law Review 370, 373.



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The right of silence is included in around fifty national constitutions,5 the founding statutes of the International Criminal Court and the ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda.6 In 1994, the Third Optional Protocol to the ICCPR was drafted with the aim of guaranteeing under all circumstances the right to fair trial. It sets out that silence by the accused may not be used as evidence to prove guilt and no adverse consequences may be drawn from the exercise of the right to remain silent.

This definition was endorsed by the United States based advocacy group, Lawyers Committee for Human Rights (now called Human Rights First).7 This progress proved short-lived, however. After the right of silence was unexpectedly curtailed in Northern Ireland in 1988,8 then in England and Wales by ss34-38 of the Criminal Justice and Public Order Act (CJPOA) 1994,9 it was not as well protected in Strasbourg as many expected it to be; the European jurisprudence concerning the privilege against self-incrimination turned out to be ‘somewhat inconsistent and problematic’.10 This chapter examines why the right of silence is a foundational component of the human right to a fair trial, examines its curtailment in Northern Ireland, England and Wales, and how this legislation has undermined fair trial rights across the globe.

 5

M Cherif Bassiouni, ‘Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections in National Constitutions’ (199293) 3 Duke Journal of Comparative and International Law 235, 265. 6 Article 21(4)(g) of the Statute of the International Criminal Tribunals of Yugoslavia (1993); Article 20(4)(g) of the Statute Of The International Criminal Tribunal For Rwanda (1994) and Rules of Procedure and Evidence for the ICTR (Rule 42A(iii)); Article 17(4) of the Statute of the Special Court for Sierra Leone accessed 27 June 2017. 7 Jelena Pejic and Vanessa Lesnie, What is a Fair Trial? A Basic Guide to Legal Standards and Practice (Lawyers Committee for Human Rights, 2000). 8 Criminal Evidence (Northern Ireland) Order 1988. 9 An earlier limited change had been made in the Republic of Ireland by 18-19 of the Criminal Justice Act 1984. This was replicated as part of the CJPOA and the Irish legislation was then extended to follow the English provisions (s7 of the Criminal Justice (Drug Trafficking) Act 1996). Under Part 4 of the Criminal Justice Act 2007; Criminal Justice Act 2006 as amended by the Criminal Justice (Amendment) Act 2009). 10 Ian Dennis, ‘Silence in the Police Station: the Marginalisation of Section 34’ [2002] Criminal Law Review 25, 27.



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The Right of Silence Debate The right of silence and the privilege against self-incrimination11 are often used interchangeably, but are different; they are ‘first cousin[s] once removed perhaps’.12 The right of silence applies only to the words of the accused but includes exculpatory or neutral answers. The privilege is restricted to incriminating evidence but it also applies to witnesses and extends beyond testimony, to include documentation or physical samples. This chapter uses the sixth of Lord Mustill’s classic typologies of the right of silence as it corresponds to the relevant legislation in both Northern Ireland and England and Wales, that is: A specific immunity…, possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial.13

The emergence of the right of silence has been dated variously between ‘the very origins of western legal tradition’;14 the thirteenth century,15 and seventeenth century opposition to the torture and unfair trials of religious dissenters by the Courts of Star Chamber and High Commission.16 Historians now favour17 Langbein’s more recent account of changes in the trial system in England during the eighteenth and nineteenth centuries when the transition from the ‘accused speaks’ system of trial to one of ‘testing the prosecution’ occurred following the introduction of defence counsel.18 The rhetorical power of the classic

 11 For a recent account of the privilege against self-incrimination see Andrew Choo, The Privilege Against Self-Incrimination (Hart Publishing 2013). 12 Tom Bingham ‘Silence is Golden - or is it?’ in The Business of Judging: Selected Essays and Speeches: 1985-1999 (Oxford University Press 2011) 285, 285. 13 R v Director of the Serious Fraud Office ex parte Smith [1993] AC 1, 30-31 (Lord Mustill). 14 Jalloh v Germany (2007) 44 EHRR 32, 702. 15 Saunders v United Kingdom (1997) 23 EHRR 313, 344. 16 John H Wigmore, Evidence in Trials at Common Law (John T McNaughton rev, Little, Brown & Co 1961); LW Levy, Origins of the Fifth Amendment: The Rght Against Self-Incrimination (Oxford University Press 1968). 17 Pat McInerney, ‘The Privilege against Self-Incrimination from Early Origins to Judges' Rules: Challenging the “Orthodox View”’ (2014) 18(2) International Journal of Evidence and Proof 101, 108-9. 18 John H Langbein, ‘The Privilege and Common Law Criminal Procedure: The Sixteenth to the Eighteenth Centuries’ in RH Helmholz and others (eds), The



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accounts of The Levellers’ protest against oppressive government remains, however. The debate, case law and scholarly literature is also influenced by the 5th Amendment to the US Constitution, enshrined by those who fled from England to America escaping religious persecution. It might be questioned whether the right of silence should be regarded as a human right rather than an evidential protection but, as Jackson and Summers argue, [i]ssues of evidence in particular are not confined to the technical nuts and bolts of making a system run more smoothly, but go to the heart of the rights of individuals.19

The right of silence is more than an ordinary evidential rule, it is often described in foundational terms such as ‘Its roots go back into ancient times’.20 Evidential rules also reflect and shape the purpose of the criminal justice system. From a utilitarian perspective the discovery of the truth is the prime purpose of the trial, and when considered against this goal, appeals to human rights are unpersuasive.21

In most systems, truth seeking—assuming a single truth can be found—is subordinated to achieving a legitimate verdict;22 one obtained in a procedurally fair manner. Those charged with considering the criminal justice process from first principles thus tend to include the right of silence.23 As Leigh explains:

 Privilege Against Self-Incrimination: Its Origins and Development (University of Chicago Press 1997) 82. 19 John Jackson and Sarah Summers, The Internationalisation of Criminal Evidence: Beyond the Common Law and Civil Law Traditions (Cambridge University Press 2012) 5. 20 Miranda v Arizona 384 US 436 (1966) 458. 21 Susan Easton, The Right to Silence (Avebury 1990) 98. 22 Ian Dennis, ‘Reconstructing the Law of Criminal Evidence’ [1989] Current Legal Problems 21. 23 See the two Royal Commissions in England and Wales, Royal Commission on Criminal Procedure, Report (Cmnd 8092, 1981) and Royal Commission on Criminal Justice, Report (Cm 2263, 1993). See also the Law Reform Commission, Criminal Investigation: An Interim Report (Australian Government Publishing Service 1975); Australia Law Reform Commission Evidence [1987] ALRC 38; New South Wales Law Reform Commission, Evidence, Report 56 (1988); Law Commission of India One Hundred and Eightieth Report on Article 20(3) of the Constitution of India and the Right to Silence (New Delhi 2002).



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The notion of fair trial in its application to criminal law incorporates three closely related, albeit distinct, principles. These are: that the accused be presumed innocent until proven guilty, that the State bear the burden of proof on the issue of guilt and innocence, and that the accused be not obliged to incriminate himself.24

The criminal justice system is founded on the notion that the conviction of the guilty is a greater wrong than the acquittal of the innocent, but many of the arguments against the right of silence assume the guilt of the accused. Jeremy Bentham argued that the right of silence would be the first feature a team of criminals would include if asked to design a legal system in its own interests, for [i]nnocence never takes advantage of it; innocence claims the right of speaking, as guilt invokes the privilege of silence.25

Assumptions about ‘natural’ responses do not necessarily apply in the atypical situation of arrest or trial, however. Suspects may not know the answers (if they are innocent, or cannot remember); they may not want to reply if they have a bad relationship with the police; they may fear reprisals or incriminating others. Defendants may also have physical, mental, linguistic or cultural difficulties in communicating. Greer divides views on the right of silence into four categories: utilitarian abolitionism (that the right is unnecessary as it impedes ‘rectitude of decision’); exchange abolitionism (the right became unnecessary following reforms to the pre-trial and courtroom protections); instrumental retentionism (protecting the vulnerable against false confessions and preventing miscarriages of justice) and symbolic retentionism (embodying the principle that it is for the prosecution to establish guilt). I developed a fifth category of symbolic abolitionism,26 arguing the right of silence was curtailed on political rather than evidence-

 24

Leonard H Leigh, ‘The Right to a Fair Trial and the European Convention on Human Rights’ in David Weissbrodt and Rüdiger Wolfrüm (eds), The Right to a Fair Trial (Springer-Verlag 1997) 645, 658. 25 Jeremy Bentham, A Treatise on Judicial Evidence (Etienne Dumont ed, Baldwin, Craddock and Joy 1825). 26 Hannah Quirk, The Rise and Fall of the Right of Silence (Routledge 2016). Greer mentions in a footnote that ‘[e]xchange abolitionism could also be considered a form of symbolic abolitionism’ but does not expand the point (Steven Greer, ‘The Right to Silence: A review of the current debate’ (1990) 53 Modern Law Review 709, 712).



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based grounds to be seen to be doing something about rising crime. As Tonry argues [s]ymbols matter, however, not only from the short-term perspective of whether they will play well on the evening news but also from the longterm perspective of whether the values they embody or undermine will aơect prevailing ways of thinking.27

The right of silence, an essential part of the fair trial protections, was curtailed as part of a highly politicised response to fear of crime. It began the ‘rebalancing’ of the criminal justice system away from the defendant and enabled a number of evidential changes that would hitherto have been unthinkable, which have undermined defendants’ right to a fair trial.

History of the Changes In 1972, the Criminal Law Revision Committee (CLRC) recommended that courts should be allowed to draw 'such inferences ... as appear proper' from the failure of an accused to mention to the police, before or at the point of charge, any fact upon which he subsequently relied in his defence. It also proposed the drawing of appropriate inferences from a defendant's refusal to be sworn and to answer questions at the trial 'without good cause’. In addition, it recommended that silence should be capable of amounting to corroboration of other evidence. The resulting furore caused the proposal to be dropped domestically but led to the right being curtailed in Singapore28 and Malaysia.29 The legislation proposed by the CLRC later provided the template for the Criminal Evidence (Northern Ireland) Order 1988 and for ss34 and 35 CJPOA.30 The 1981 Royal Commission on Criminal Procedure (RCCP) recommended the retention of the right of silence as part of a package of measures which balanced increases in both police powers and suspects’ rights.31 This led to the Police and Criminal Evidence Act of 1984 (PACE)–legislation which, at the time, was condemned as illiberal, even

 27

Michael Tonry, ‘The costly consequences of populist posturing: ASBOs, victims, ‘rebalancing’ and diminution in support for civil liberties’ (2010) 12(4) Punishment & Society 387, 388. 28 Criminal Procedure Code [Amendment] Act No 10 of 1976. 29 Criminal Procedure Code [Amendment and Extension] Act 1976. 30 The right was eroded in the Republic of Ireland by ss18-19 of the Criminal Justice Act 1984. 31 Report of the Royal Commission on Criminal Procedure (Cmnd 8092, 1981).



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by right-wing tabloid The Daily Mail.32 Within 18 months of its enactment, the Home Secretary announced that he was setting up a Home Office Working Group33 to examine how to curtail the right of silence, apparently in response to pressure from the police.34 The following year the Criminal Evidence (Northern Ireland) Order 1988 was introduced.35 This followed a suggestion from the independent reviewer of the counterterrorism legislation who was also responding to lobbying by the police and security services.36 The IRA trained its volunteers to ‘SAY NOTHING, SIGN NOTHING, SEE NOTHING, HEAR NOTHING’ and recommended methods to withstand police questioning, such as yoga or visualisation strategies.37 The empirical case that this was inhibiting convictions was weak however, and the government refused to publish the Royal Ulster Constabulary’s statistics on which this claim was made. The proposal was justified in terms of removing the right from those involved in terrorism and other serious violence38 but applied to all suspects; this was condemned as ‘a clear extension of the emergency regime into the ordinary criminal law’.39 The Northern Ireland Order allows for inferences to be drawn from the accused’s: failure to mention particular facts when questioned or charged (Article 3); failure to give evidence at trial (Article 4); failure or refusal to account for objects, substances or marks on his or her person (Article 5) and failure or refusal to account for his or her presence at or near a place

 32

15 March 1983. Home Office, Report of the Working Group on the Right to Silence (HMSO, 1989). 34 Michael Zander, ‘You Have No Right to Remain Silent: Abolition of the Privilege against Self-Incrimination in England’ (1996) 40 Saint Louis University Law Journal 659, 672. 35 For the background to the Northern Ireland Order, see John Jackson, ‘Recent Developments in Criminal Evidence’ (1989) 40 Northern Ireland Legal Quarterly 105; John D Jackson, ‘Curtailing the Right of Silence: Lessons from Northern Ireland’ [1991] Criminal Law Review 404; John Jackson, ‘Silence Legislation in Northern Ireland: The Impact after Ten Years’ (2001) 6(2) Journal of Civil Liberties 134. 36 Review of the Operation of the Prevention of Terrorism (Temporary Provisions) Act 1984 (Cm 264, 1987). 37 Irish Republican Army, Green Book II (undated) accessed 18 June 2017. 38 Tom King, HC Deb 8 November 1988, vol 140, cols 183-187. 39 Fionnuala Ní Aoláin ‘The Fortification of an Emergency Regime’ (1995-1996) 59(4) Albany Law Review 1353, 1384. 33



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where an offence had been committed (Article 6). The provisions were criticised by international human right groups and the United Nations Special Rapporteur on Human Rights.40 The Home Secretary’s plan to introduce legislation curtailing the right of silence in England and Wales41 had to be suspended following a series of high profile miscarriages of justice being overturned. It was, however, included in the terms of reference of the Royal Commission on Criminal Justice (RCCJ) set up on the day the convictions of the Birmingham Six (four of whom had made false confessions) were quashed. The RCCJ concluded that the right of silence was exercised in only a minority of cases and that most of those who were silent in the police station either pleaded or were found guilty.42 The RCCJ, unlike the RCCP, considered the right of silence only in functional terms of protecting the vulnerable.43 It did not refer to the ECHR or examine the effects of the Northern Ireland Order. It recommended retaining the right of silence at the police station but proposed that defendants should be required to outline their defence in advance of trial once the prosecution case has been disclosed fully. It also recommended that the prosecution and the judge should be allowed to comment upon any explanation advanced at trial where the defendant does not give evidence.

 40 NACDL, ‘Resolution of the Board of Directors of the National Association of Criminal Defense Lawyers on the intimidation and targeting of defense counsel in Northern Ireland and other issues of importance related to the Criminal Justice System in Northern Ireland’ (Atlanta, 14 November 1998) accessed 18 June 2017; JUSTICE & Committee on the Administration of Justice, Right of Silence Debate: the Northern Ireland Experience (JUSTICE 1994); Human Rights Watch, ‘JUSTICE FOR ALL? An analysis of the human rights provisions of the 1998 Northern Ireland Peace Agreement’ (Human Rights Watch, 1 April 1998) accessed 18 June 2017; British Irish Rights Watch Submission to the United Nations Human Rights Committee Concerning the United Kingdom’s Compliance with the International Covenant on Civil and Political Rights (June 2001) [12.4] < www.rwuk.org/advocacy/submission-to-the-united-nations-human-rightscommittee-concerning-the-uks-compliance-with-the-international-covenant-oncivil-political-rights/> accessed 27 June 2017; JA Hall, ‘To serve without favor: Policing, Human Rights, and Accountability in Northern Ireland’ (Human Rights Watch, May 1997) accessed 18 June 2017. 41 Written Answers (Lords) RIGHT OF SILENCE HL Deb 20 October 1988 vol 500 c1351WA. 42 Royal Commission on Criminal Justice, Report (Cm 2263, 1993) para 53-54. 43 Zander (n 34) 667.



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After the Conservatives won a fourth consecutive general election in 1992, the Labour Party sought to improve its electoral credibility. This led to ‘a cross-party search for punitive policies, and particularly rhetoric, that could be used to convince an electorate to cast their vote for those who could be trusted to be toughest on crime’.44 The government’s plan to curtail the right of silence was announced at the 1993 Conservative Party conference as part of a 27-point ‘crackdown on crime’.45 The CJPOA, enacted the following year, allows the judge and prosecution to comment upon, and the jury to draw such inferences as appear proper from: x The failure of the accused to mention when questioned or charged any fact relied on in his or her defence which in the circumstances existing at the time the accused could reasonably have been expected to mention (s34); x A defendant choosing not to give evidence or, having been sworn, refusing to answer any question without good cause (s35); x The failure of the accused when questioned to account for the presence of any object, substance or mark about his/her person (s36); x The failure of the accused when questioned to account for his/her presence at a particular place (s37). There was much speculation as to how the domestic courts and the European Court of Human Rights (ECtHR) would interpret the provisions. In the first few years, there was a flurry of case law, and associated academic commentary, but this quickly stabilised. Overall, [t]he Court of Appeal appears to have found the crime control arguments more compelling than those of human rights in relation to the right of silence.46

The Court has allowed few exclusions to the provisions, preferring to leave the issue to the jury, buttressed by lengthy directions. The threshold

 44

Trevor Jones and Tim Newburn, ‘The Convergence of US and UK Crime Control Policy: Exploring Substance and Process’ in Tim Newburn and Richard Sparks (eds), Criminal Justice and Political Cultures (Willan 2004) 123, 141. 45 Alan Travis, ‘Right to Silence Abolished in Crackdown on Crime’ The Guardian (London, 7 October 1993). 46 Hannah Quirk, ‘Twenty Years On: The Right of Silence and Legal Advice: The Spiralling Costs of an Unfair Exchange’ (2013) 64(4) Northern Ireland Legal Quarterly 465, 474.



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for excluding inferences for suspects who do not testify has been set so high as to be ineffective (those with profound disabilities, the very young and those in fear of violence have all faced adverse inferences from their failure to testify).47 Redmayne observed that the directions operate rather like a magic formula; so long as they are given by the judge, the jury can be left to draw an inference… the European Court of Human Rights (ECtHR) has taken a similar approach.48

Although it was held that the provisions 'should not be construed more widely that the statutory language requires',49 the adverse inference is no longer limited to one of recent invention, but now extends to a fact or explanation tailored to fit the prosecution case or which the defendant is thought to have believed would not stand up to scrutiny at the time.50 Inferences can be used for punitive as well as evidential purposes against suspects for not fully cooperating with the police. Judges now direct jurors to draw ‘conclusions’ rather than ‘inferences’. There has been no research as to how juries understand or interpret these directions but Thomas’ research shows that the majority struggle to understand much simpler directions than those on adverse inferences.51 Leng argues that, in its interpretation of s34, the Court signalled its allegiance to the political objective of the legislation: to establish the norm that suspects should speak in police interview.52 It has reconceptualised the criminal justice process so that the police interview and the trial are to be seen as part of a continuous process in which the suspect is engaged from the beginning… [a] benign continuum from interview to trial.53

 47 R v Dixon [2013] EWCA Crim 465; R v Gledhill [2007] EWCA Crim 1183; R v Tabbakh [2009] EWCA Crim 464. 48 Mike Redmayne, ‘English Warnings’ (2008) 30(3) Cardozo Law Review 1047, 1060. 49 R v Bowden [1999] 1 WLR 823, 827. 50 R v Milford [2001] Crim LR 330. 51 Cheryl Thomas, Are Juries Fair? (Ministry of Justice Research Series 1/10, 2010). 52 Roger Leng, “Silence Pre-Trial, Reasonable Expectations and the Normative Distortion of Fact-Finding” (2001) 5 International Journal of Evidence & Proof 240, 250. 53 R v Howell [2003] EWCA Crim 1; 1 Cr App R 1 [23]–[24].



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This has the effect that suspects appear to be in receipt of protections that fulfil the requirements of a fair trial, such as a high burden of proof and legal advice, but the presumption of innocence has been weakened, the burden of proof is easier to discharge, and the protective value of legal advice is diminished.

The Strasbourg approach to Silence The United Nations Human Rights Committee ‘notes with concern’ that the CJPOA violates various provisions of Article 14 of the Covenant [fair trial], despite a range of safeguards built into the legislation and the rules enacted thereunder.54

It recommended that the silence provisions should be reviewed. Many commentators assumed (wrongly as it turned out) that the CJPOA would not withstand scrutiny from the European Court of Human Rights. The right of silence could be considered under a number of human rights provisions. Lord Gardiner, speaking in the House of Lords against an earlier recommendation to curtail the right of silence by the Criminal Law Revision Committee in 1972, observed: As a noble principle often transcends its origins, the privilege has come rightfully to be recognised in part as an individual’s substantive right, “a right to a private enclave where he may lead a private life”… The constitutional foundation underlying the privilege is the respect a Government must accord to the dignity and integrity of its citizens.55

Leigh suggests the right could have been dealt with under Article 3 as the prosecution should prove its case against the accused without resort to evidence obtained through coercion or oppression.56 Seidman explains the prohibition against torture in terms of a right to silence, as essential in preserving the distinction between mind and body on which (the illusion of?) human freedom depends.57

 54

CCPR Human Rights Committee CCPR/C/79/Add.55; A/50/40, paras 408-435. HL Deb 14 February 1973, cols 1567-68 (Lord Gardiner). 56 Leigh (n 24) 660. See also DJ Galligan, ‘The Right to Silence Reconsidered’ (1988) 41(1) Current Legal Problems 69; Saunders (n 15) [65]. 57 Louis Michael Seidman, Silence and Freedom (Stanford University Press 2007) 3. 55



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The European Commission of Human Rights recognised a general right of silence as the negative counterpart of the freedom of expression protected under Article 10,58 but the right has subsequently been dealt with under the fair trial provisions of Article 6. In Funke v France,59 the Court found a violation of Article 6(1) in that the applicant had been convicted for refusing to provide customs officials with his bank statements. The ECtHR emphasised that [t]he privilege against self-incrimination is also closely allied to the principle of presumption of innocence protected in Article 6(2) of the Convention in that it reflects the expectation that the State bear the general burden of establishing the guilt of an accused, in which process the accused is entitled not to be required to furnish any involuntary assistance by way of confession.60

The Court said little about the substantive content of the right, however, and ‘expresses itself in terms which might be thought Delphic’.61 Saunders v United Kingdom62 related to compulsory questioning by inspectors investigating illegal share activity. The essential issue was the use made by the prosecution during the resulting trial of statements that Saunders had been obliged to make. The ECtHR found a violation of Article 6 holding that the right of silence and the privilege against selfincrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6.63

Following these cases, to the surprise and disappointment of many commentators, the ECtHR declared that the drawing of inferences from the failure of suspects to answer police questions or from their refusal to testify, does not breach Article 6 per se.64 In Murray v United Kingdom, the ECtHR distinguished its conclusion in Funke v France on the basis that the Northern Ireland Order exerted only ‘a certain level of indirect

 58

K v Austria Series A no 255-B, 2 June 1993. Funke v France (1993) 16 EHRR 29. 60 Saunders (n 15) [72]. 61 Leigh (n 24) 660. 62 Saunders (n 15). 63 ibid 314 63 ibid 68. 64 Murray (John) v United Kingdom (1996) 22 EHRR 29; Condron v United Kingdom (2001) 31 EHHR 1. 59



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compulsion’65 which is not sufficient to destroy the essence of the right. No explanation was given as to why it should be ‘obvious’ that: …these immunities cannot and should not prevent that the accused’s silence, in situations which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution.66

It was held that, while the right to refuse to answer questions lies at the heart of a fair hearing under Article 6, this does not confer an absolute right not to have inferences drawn, but a conviction could not be based solely or mainly on the accused's silence or on a refusal to answer questions or to give evidence himself: It is only if the evidence against the accused “calls” for an explanation which the accused ought to be in a position to give that a failure to give an explanation “may as a matter of common sense allow the drawing of an inference that there is no explanation and that the accused is guilty”.’67

Every case should be considered in the light of all the circumstances, having particular regard to the situations where inferences might be drawn, the weight attached to them by the national courts, and the degree of compulsion inherent in the situation.68

The ECtHR was reassured that the appellant had been tried before a jury-less Diplock court–whilst commonplace in civil law systems, and easier to review on appeal, this was an abrogation of usual fair trial proceedings that caused significant concern throughout the Northern Ireland conflict. The first ECtHR case relating to the CJPOA provisions was Condron v the United Kingdom.69 The applicants’ solicitor had advised them to make no comment at the police station as he believed that they were unfit to do so due to the effects of drug withdrawal. The ECtHR found a violation of Article 6 as the judge had omitted from the direction that the jury may

 65

Murray (John) v United Kingdom (1996) 22 EHRR 29 [65]. ibid [60]. 67 ibid [51], the passages in inverted commas being from Lord Slynn’s judgment in R v Kevin Sean Murray (sub nom Murray v Director of Public Prosecutions) [1993] 97 Criminal Appeal Reports 151. 68 Murray (n 65) [47]. 69 Condron (n 64). 66



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draw an adverse inference only if that silence could be attributed to there being no answer or none that would stand up to cross examination: Any other conclusion would be at variance with the fundamental importance of the right to silence, a right which, as observed earlier, lies at the heart of the notion of a fair procedure guaranteed by Art 6.70

As Jackson notes, the ECtHR has addressed the right as primarily a procedural right attached to the right to a fair trial rather than a substantive right expressing the principle that individuals generally should not have to account to the State for their actions or activities.71

The ECtHR has found in favour of appellants where the judicial direction about adverse inferences was insufficient,72 but its decisions that the provisions do not necessarily breach the fair trial provisions in Article 673 have facilitated the expansion of the CJPOA by the domestic courts, and the Court of Appeal has essentially ignored the ECtHR’s ruling on silence and legal advice.74

Effects Common law systems often distinguish between rules regarding the obtaining and the admissibility of evidence;75 the CJPOA whilst ostensibly relating to how the evidence is used at trial, has had an influence on how such evidence is gathered. It is generally agreed that defendants are now more likely to answer police questions, and to testify, but this has not made a noticeable difference in terms of increasing charge, plea or conviction rates.76 Nor has it had the dire effect that others predicted in

 70

ibid [64]-[66]. John Jackson, ‘Re-conceptualizing the right of silence as an effective fair trial standard’ (2009) 58(4) International and Comparative Law Quarterly 835, 841. 72 Beckles v United Kingdom (application no 44652/98, decision of 8 October 2002). 73 Condron (n 64). 74 Lord Phillips of Worth Matravers, Trusting the Jury (The Criminal Bar Association Kalisher Lecture, 23 October 2007). 75 Jackson and Summers (n 19) 12. 76 Trevor Bucke and others, The Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994 (Home Office 2000); John Jackson, Martin Wolfe and Katie Quinn, Legislating against Silence: The Northern Ireland Experience (Northern Ireland Statistics and Research Agency 2000). 71



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terms of miscarriages of justice. Leng suggests the focus on these polarised positions meant that insufficient attention was paid to other theoretical and practical problems which might result from the CJPOA. 77 Curtailing the right of silence has ‘transformed the landscape of a criminal trial’78 but not in the ways anticipated when the legislation passed. The ‘common sense’ judgments of the ECtHR in determining the fairness of proceedings fail to explore how suspects experience, and criminal justice practitioners implement, these provisions. The legislation applies to all suspects but it does not affect them all equally. The ‘hardened criminals and terrorists’ who were the purported targets, are unlikely to be disadvantaged by the provisions. Distinctions based on the guilty and innocent imply that there is no value in protecting the guilty from self-incrimination79 and to focus only on the vulnerable or the harm done to personal integrity,80 is to miss the damage that has been done to the system as a whole. Jackson raised doubts about the fairness and effectiveness of the provisions concluding: While the legislation would seem to have had little impact in terms of the outcome of individual cases, it will be argued that it has invested the police interview with such evidential significance that it can truly be said to have assumed a formal status akin to that of a court hearing. Yet despite a number of safeguards introduced at the police station in recent years, this stage is far from adhering to the rules of natural justice which are associated with a fair hearing.81

Arguably the most significant effect of the CJPOA has been on legal representation, a prerequisite of a fair trial, but little attention has been given to the effect of these decisions on the protective function of defence solicitors. The fact an accused has been advised by his or her lawyer to remain silent must be given ‘appropriate weight’82 but the jury should be told:



77 Roger Leng, ‘The Right to Silence Reformed: A Re-appraisal of the Royal Commission's Influence’ (2001) 6(2) Journal of Civil Liberties 107, 125. 78 Chief Constable of the RUC ex p Begley [1997] 1 WLR 1475, 1479. 79 Mike Redmayne, ‘Rethinking the privilege against self-incrimination’ [2007] Oxford Journal of Legal Studies 209, 221. 80 ibid 81 John Jackson, ‘Silence and proof: extending the boundaries of criminal proceedings in the United Kingdom’ (2001) 5(3) International Journal of Evidence and Proof 145, 147. 82 Condron (n 64) [60].



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Chapter Five It is not what the solicitors thought that matters. It is what each defendant thought.83 Even where a solicitor has in good faith advised silence and a defendant has genuinely relied on it in the sense that he accepted it and believed that he was entitled to follow it, a jury may still draw an adverse inference if it is sure that the true reason for his silence is that he had no or no satisfactory explanation consistent with innocence to give.84

This ignores the reality of how most lay clients would respond to professional advice; particularly given the circumstances of most of those in custody who are generally of low intellectual ability; many who do not speak English fluently and the majority experiencing mental illness, drug and alcohol abuse.85 Representatives are now are faced with a difficult calculation at the police station: to recommend the suspect answer questions–potentially giving the police the additional evidence needed to charge–or to advise no comment, the inference from which may be enough to tip a borderline case to conviction if it goes to trial. The provisions also undermine the ability of representatives to hold the police to account as no concession is made for a solicitor trying to advise when the police will not disclose their evidence or protesting against an unlawful interview.86 This has made the police interview part of the trial process but without the benefit of the courtroom safeguards.87 By making custodial legal advice of potential evidential significance, perhaps requiring representatives to testify at the trial of their clients, the CJPOA has compromised the lawyer-client relationship, thus further eroding the protective benefits of legal advice and tipping the balance even further against suspects. The Courts went even further in Seaton88 and allowed incursions into legal professional privilege. As I have argued elsewhere, suspects have been trebly disadvantaged by the CJPOA. The right of silence has been diminished, legal representation has been devalued, and

 83

R v Betts and Hall [2001] 2 Cr App R 16 [57]. R v Hoare and R v Pierce [2004] EWCA Crim 784, [2005] 1 WLR 1804, [2005] 1 Cr App R 22 [51] (emphasis in original). 85 Susan Young and others, ‘The effectiveness of police custody assessments in identifying suspects with intellectual disabilities and attention deficit hyperactivity disorder’ (2013) 11 BMC Medicine 248. 86 Hoare and Pierce (n 84). 87 Jackson (n 81) 147; Leng, ‘The Right to Silence Reformed’ (n 77). 88 R v Seaton [2011] 1 Cr App R 2 (CA). 84



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the encroachment on such ‘a “bench mark” of British justice’ facilitated further statutory and common law restrictions on evidential protections for defendants.89

The changes sent out a powerful message; as Jackson notes: The issue of whether inferences should be drawn from silence is nevertheless one of tremendous symbolic significance to police and suspects before trial and to prosecution and defence at trial as it provides an important benchmark against which to assess the relative balance of power between police and suspect, prosecution and defence. In particular, it sends out powerful messages as to when it is legitimate to expect answers to questions and when it is not.90

Each proposal to curtail the right of silence in England caused a reaction in other common law jurisdictions.91 The question of curtailing the right of silence was considered by several Australian states, and legislative exceptions were made in relation to serious and organised crime92 and child abuse. Elements of the CJPOA borrowed directly from legislation in Ireland, which subsequently amended its laws to follow the more expansive English model.93 Under Part 4 of the Criminal Justice Act 2007, inferences can be drawn from silence in any proceedings relating to an arrestable offence. This essentially added s34 inferences, together with some safeguards around the right to legal advice. A court may draw adverse inferences where an accused has relied at trial upon a fact, that ‘clearly called for an explanation’ but was not given when questioned. (‘Clearly called for’ is the language of the ECtHR, rather than the ‘reasonable to mention’ of s34 CJPOA). After several Australian states had rejected changes on principled grounds, the reasoning for maintaining the right of silence changed with the Northern Territory Law Reform Committee.94 The argument shifted within the Report from a principled objection that to penalise silence ‘would lead to tyranny’ to the common sense view that in an ideal world it would legislate to follow the model in England and Wales. Of particular

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Quirk, ‘Twenty Years On’ (n 46) 467. Jackson (n 81). 91 See Quirk, Rise and Fall (n 26) 170. 92 Australian Crime Commission Act 2002. 93 s7 of the Criminal Justice (Drug Trafficking) Act 1996; Criminal Justice Act 2006 as amended by the Criminal Justice (Amendment) Act 2009. 94 Northern Territory Law Reform Committee, Report on the right to silence (Northern Territory Law Reform Committee 2002) 3. 90



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significance to the authors was that ‘in both the UK and Singapore the changes in the legislation seem to have been seen as rational, and there appears no public outcry against them or any groundswell for repeal.’ In particular it noted that the ECtHR had not found against the provisions.95 Somehow, subtly, curtailing the right of silence had shifted from erroneous to aspirational–the mark of an advanced criminal justice system–a view enhanced by the lack of objection in England and Strasbourg.96

In 2013, the Evidence Amendment (Evidence of Silence) Act was passed, which essentially introduced the CJPOA provisions, along with another amendment requiring defence disclosure. The Attorney General dismissed the ‘scaremongering’ of opponents ‘despite a ruling from the European Court of Human Rights, which found similar laws in the UK were consistent with the right to a fair trial’.97 Tonry argues that the shift in England from substantive to expressive crime justice policy weakened support for the rule of law and for fundamental beliefs about relations between the citizen and the State. Formerly unthinkable policies have become commonplace, and arguments against them have become less than fully credible. The associated risks to civil rights and liberties are considerable.98

Criminal justice bills followed the CJPOA at least annually, most echoing the rhetoric of redressing the balance of a system tipped too far in favour of the criminal. Spending on CCTV increased; attempts were made to introduce compulsory identity cards, to extend pre-charge detention to 98 days in terrorism cases, and to create the most extensive criminal justice DNA database in the world. The Criminal Procedure Rules now provide that participants in criminal trials, including defendants, have a duty to ensure that the case is dealt with efficiently and expeditiously. The changes to the centuries old ‘double jeopardy’ provisions (allowing defendants to be prosecuted for a second time following an acquittal),

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ibid Quirk, Rise and Fall (n 26) 170. 97 New South Wales Government, ‘Evidence of silence laws pass parliament’ (press release, 20 March 2013) accessed 19 June 2017. 98 Michael Tonry, ‘The costly consequences of populist posturing: ASBOs, victims, ‘rebalancing’ and diminution in support for civil liberties’ (2010) 12(4) Punishment & Society 387. 96



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limiting the right to trial by a jury, and allowing jurors to know about a defendant’s previous convictions demonstrate how previously untouchable principles have become targets to demonstrate successive governments’ ‘toughness about crime.’ Then Prime Minister, Tony Blair argued in 2005 that: The whole of our system starts from the proposition that its duty is to protect the innocent from being wrongly convicted. Don't misunderstand me. That must be the duty of any criminal justice system. But surely our primary duty should be to allow law-abiding people to live in safety. It means a complete change of thinking. It doesn't mean abandoning human rights. It means deciding whose come first. 99

Leng100 argues that the CJPOA ‘represents a re-negotiation of the relationship between citizen and state’ but it was not a one off deal. The right of silence is also a practical expression of the principle that it is for the prosecution to discharge the burden of proof, without assistance from the accused. Ashworth101 explains that the presumption of innocence operates at the criminal trial (where the prosecution bears the burden of proving guilt beyond reasonable doubt) but European human rights law also supports a ‘wider, sense of the presumption of innocence: that pretrial procedures should be conducted, so far as possible, as if the defendant were innocent.’ It is this latter part that has changed under the CJPOA, going beyond mere procedural change and distorting the adversarial system under which individuals are investigated and tried. Evidence gathering is being conducted in an increasingly inquisitorial manner, but may then be deployed in an adversarial context.102 Suspects’ rights to a fair trial under Article 6 of the ECHR appear strong but the law in practice differs from the law in books. The formal doctrine that the legal burden of proof rests throughout on the prosecution remains unchanged,103 but

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Full Text of Tony Blair’s speech (27 September 2005) accessed 19 June 2017, emphasis added. 100 Leng, ‘The Right to Silence Reformed’ (n 77) 132. 101 Andrew Ashworth ‘Four Threats to the Presumption of Innocence’ (2006) 10(4) International Journal of Evidence & Proof 241, 243. 102 Ed Cape, ‘The Revised PACE Codes of Practice’ [2003] Criminal Law Review 355, 369. 103 Mike Redmayne, ‘Rethinking the privilege against self-incrimination’ [2007] Oxford Journal of Legal Studies 209; Mike Redmayne, ‘Process Gains and Process Values: The Criminal Procedure and Investigations Act 1996’ (1997) 60 Modern



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Ashworth cautions that ‘a law that permits adverse inferences from a defendant's failure to answer questions may well have a strong impact on the presumption of innocence, by effectively reducing the prosecution's burden in matters of proof’.104 The working practices of, and relationships between, suspects, the police and legal representatives have been distorted by this legislation which has made it easier for the prosecution to discharge the burden of proof. In effect, for the first time, suspects are expected to cooperate actively with the investigation and trial process, a ‘normative expectation’105 of ‘coerced participation’ which runs contrary to the principle that it is for the prosecution to prove its case.106 These crime control policies have quickly been normalised: policies that were initially widely seen as radical intrusions into individual liberty and as profoundly illiberal became accepted in time as normal and then led to adoption of broader policies that at the outset would have been unimaginable (...) .’107

Practitioners qualifying since 1994 are likely to accept inferences as the norm and, until recently, there had been little scholarship on the subject. Clause 11 of the Liberal Democrats’ draft Freedom Bill 2009 proposed the ‘repeal of provisions which restrict the right to silence’ but attracted little attention and the document was soon removed from the Liberal Democrats’ website. The coalition government decided not to include it in the Protection of Freedoms Bill 2010–2011 because the current arrangements ‘strike the right balance’.108 The European Union has adopted a series of directives requiring that suspects be given information in a written ‘Letter of Rights’ of a number

 Law Review 79, 85; John Jackson, ‘Silence Legislation in Northern Ireland: The Impact after Ten Years’ (2001) 6(2) Journal of Civil Liberties 134, 145. 104 Ashworth (n 101) 256. See also Murray (n 65) [52], partly dissenting opinion of Mr E. Busuttil. 105 Leng, ‘Silence Pre-Trial’ (n 52) 246. 106 Leng, ‘The Right to Silence Reformed’ (n 77) 128. 107 Michael Tonry, ‘The costly consequences of populist posturing: ASBOs, victims, “rebalancing” and diminution in support for civil liberties’ (2010) 12(4) Punishment & Society 387. 108 Email from author to the Ministry of Justice (1 August 2011). The Law Commission also rejected a suggestion that it consider a law reform project because ‘our discussions with the Ministry of Justice strongly suggest that there is no realistic prospect of us receiving an undertaking from them to reform the law in this area’: letter from the Law Commission to author (dated 3 March 2017).



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of procedural rights, including the right to remain silent.109 The United Nations General Assembly passed a resolution drawn from ‘international standards and recognized good practices’.110 Under Guideline 3, states are called upon to introduce measures to ‘promptly inform every person detained, arrested, suspected or accused of, or charged with a criminal offence of his or her right to remain silent’ (at para 43(a)). The person should be advised of his or her ‘rights and the implications of waiving them in a clear and plain manner’ (para 43(i)). Given the uncertainty following the United Kingdom’s announcement of its intention to leave the European Union, it is unclear what will happen to these measures. Rumours also abound that Britain may seek also to withdraw from the European Convention on Human Rights. Notwithstanding the potentially devastating international consequences of such an action, it may afford the scope to raise the question of reintroducing the right of silence in a ‘British Bill of Rights’ but this seems unlikely. Having led the world in establishing the right of silence as part of a fair trial, England has led the way in redefining and undermining a measure that is fundamental to a fair trial.

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Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the Right to Information in Criminal Proceedings [2012] OJ L142/1. 110 UN General Assembly, United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (A/RES/67/187, 28 March 2013) accessed 19 June 2017 [6].



CHAPTER SIX BREXIT AND HUMAN RIGHTS – AN OPPORTUNITY? MICHELLE COLEMAN

Introduction There is no doubt that as the United Kingdom leaves the European Union, the rights of individuals will be affected. While the degree of the United Kingdom’s disentanglement from the European Union depends on future negotiations, individual rights as provided through the European Union are at risk. It is widely believed that there will be a restriction of human rights if the United Kingdom leaves the European Union. This however, does not need to be the case. There are many laws that will need to be rewritten after Brexit1 in order to remove Europe’s influence or to patch holes that will be left within the laws. This will require Parliament to undertake a major reworking and rewording of laws throughout the entire legal system. While Parliament is engaged in this work, they could choose to prioritise human rights. Were Parliament to prioritise human rights while they are revising the laws post-Brexit, they can position the United Kingdom to be a worldwide human rights leader. No longer constrained by a perceived need to merely meet Europe’s standards, Parliament will be free to exceed current standards and provide even more protections. Taking this kind of policy on board, they could also improve domestic laws that have become severely constrained despite Europe’s influence. One such right is the right to remain silent. In practice, the right to silence in England and Wales is very difficult to exercise. Despite European human rights laws, policies, and the Human Rights Act, the Criminal Justice and Public Order Act allows juries in England and Wales to find an adverse inference against defendants during trial based on a

 1

Brexit refers to the United Kingdom leaving the European Union.

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defendant’s failure to make a statement.2 Although technically limited, adverse inferences apply whenever the defendant remains silent or attempts to later change their narrative. Thus, an adverse inference could be drawn in almost every case and can be a contributing factor toward conviction. As a result, the accused have no real choice as either choosing to speak or exercising the right to remain silent contributes to their conviction. One of the main arguments for Brexit is that Parliament will gain sovereignty and will be free to make their own decisions, without the constraints of Europe. In the short term, however, the United Kingdom will lose the protections of whatever laws and treaties it withdraws from as a result of the negotiations. This means that any European human rights law or treaty that ceases to apply to the United Kingdom, because of the negotiations, will necessarily constrain domestic human rights law. Another consequence of Brexit is that any future European laws or Directives will not bind the United Kingdom. Finally, there is a possibility that withdrawing European laws and conventions might cause the government to decide to repeal the Human Rights Act. Any of these outcomes will require Parliament to review domestic law to repair the holes caused by removing European influences. During its review of these laws, Parliament could choose to make human rights a priority and rewrite the laws to strengthen human rights protections. All of this is uncertain, as the Government and Parliament have not yet committed to any plans for what will happen after Brexit. However, Brexit, and the upheaval it might cause to domestic law, provides an opportunity for Parliament to strengthen its commitment to human rights while rewriting and repairing the domestic laws.

Brexit could affect Human Rights in the United Kingdom The British Supreme Court recognised in R (Miller) v Secretary of State for Exiting the European Union that Parliament, rather than the Government, is the appropriate body to start the process of leaving the European Union by triggering Article 50 of the Treaty of Lisbon.3 This decision was made, in part, because of the number of individual rights held by citizens and residents of the United Kingdom that would be affected when the country separates itself from the European Union.4

 2

Criminal Justice and Public Order Act 1994. R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5. 4 ibid [69-73]. 3

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While Brexit negotiations have not started, and there is no firm indication of what European treaty obligations the United Kingdom will continue to follow, there are a number of human rights that have been identified as being in danger once the United Kingdom leaves the European Union. These include rights regarding work, data protection, the accused, and refugee and asylum seekers.5 One specific example of how Brexit will affect human rights is that the United Kingdom will no longer be a party to the Charter of Fundamental Rights of the European Union (The Charter).6 The Charter is one of the treaties that the United Kingdom is likely to withdraw from during the Brexit negotiations because it only applies to members of the European Union.7 Thus, if the United Kingdom were no longer a member of the European Union, this treaty would not be relevant. The Charter consolidates and provides for many individual human rights.8 The current Prime Minister, Theresa May, has argued that the human rights standards the United Kingdom provides its citizens will be unaffected after the Charter becomes inoperative.9 However, the Charter does provide some protection for fundamental rights, such as social and political rights, that are not contained in other documents such as the European Convention on Human Rights. No longer being a party to the treaty would have some effect on the overall body of human rights protections provided by the United Kingdom. Losing the human rights protections provided for by European Union membership will leave some holes in the United Kingdom’s human rights law. This, in turn, could force Parliament to consider their own stance on human rights, and they could take this as an opportunity to strengthen the human rights protections afforded by domestic laws.

 5

Angela Patrick, ‘Mapping the Great Repeal: European Union Law and the Protection of Human Rights’ (A background paper for the Thomas Paine Institute, October 2016). 6 Charter of Fundamental Rights of the European Union [2000] OJ C364/01. 7 Department for Exiting the European Union, Legislating for the United Kingdom’s withdrawal from the European Union (White Paper, Cm 9447, 2017) (Great Repeal Bill White Paper); Joint Committee on Human Rights, The human rights implications of Brexit (2016-17, HL 88, HC 695). 8 European Commission, ‘EU Charter of Fundamental Rights’ accessed 4 May 2017. 9 Great Repeal Bill White Paper (n 8).

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Any Parliamentary Sovereignty gained from Brexit will give Parliament the Freedom to Increase Human Rights Parliament is the most sovereign branch of the United Kingdom’s government. However, an argument can be made that Parliament ceded some of its power when the United Kingdom became a member of the European Union. Being a member of the European Union for example, requires countries to be subject to their rules and regulations, regardless of what the individual country’s government may want. Some of Brexit’s supporters want to leave the European Union so as to permit Parliament to regain the authority they believe was ceded to Europe.10 If Parliament regains this power, Parliament will no longer be restrained by Europe when making decisions, and can choose to focus on an aggressive human rights plan. This idea is based on the notion that the European Union dictates to States Parties what laws to pass and what standards to uphold.11 Countries must comply with the European Union standards, although they are free to develop their own means of implementation. The legal community understands that the requirements of the European Union are the minimum norms that must be followed and that individual States are free to exceed that baseline if they so wish. Countries must meet the minimums, but there is nothing preventing them from exceeding those standards. This understanding of the legal community does not seem to be shared by the political community. The political community appears to think that the standards set by the European Union are to be met, not exceeded. This seems to be based on the perception that there are an overwhelming number of requirements coming from the European Union.12 Because of this alleged tsunami of documents, laws, regulations, and Directives, that Parliament must review and implement, they do not have time or capacity to write unique laws that exceed the European Union requirements. The result is that Parliament



10 Michael Gordon, ‘The UK’s Sovereignty Situation: Brexit, Bewilderment and Beyond…’ (2016) 27 King’s Law Journal 333; Chloe Farand, ‘The Brexit White Paper completely contradicts a key argument for Brexit’ The Independent (London, 2 February 2017) accessed 4 May 2017. 11 Department for Exiting the European Union, The United Kingdom’s exit from, and new partnership with, the European Union (White Paper, Cm 9417, 2017) (Brexit White Paper) para 2.1–2.2. 12 ibid para 2.1.

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feels that their power is impermissibly constrained by the European Union’s rules. They must meet the set standards, and they have very little choice in the matter. Once the United Kingdom’s exit from the European Union is complete, Parliament will regain its lost sovereignty. Further, Parliament will no longer be inundated by European laws, regulations, and directives, allowing it more time and capacity to review domestic legislation. This will free Parliament to make whatever decisions it wants. Parliament could use this greater freedom of action to create stronger domestic human rights laws.

Withdrawing from the European Union means that European Law will be removed from Domestic Law The European Union has a number of treaties and laws that provide rights to individuals residing within the European Union. These laws are incorporated into the United Kingdom’s domestic law through the European Communities Act 1972.13 Therefore, withdrawing from the European Union means that the United Kingdom also needs to repeal the European Communities Act 1972. Repealing this act will cause European law to no longer be a part of domestic law, and will create a number of holes in domestic legislation. As a further consequence of Brexit, the United Kingdom will no longer be party to a number of European Union treaties, which, among other things, delineate rights for residents and citizens. If the United Kingdom does not have its own laws in place to protect such rights, then those rights will be unprotected until new domestic law is created. Alternatively, if the United Kingdom had a legal approach to a right before it entered the European Union, then that earlier understanding of the right would again become law. To prevent the predicted legal chaos14 that would ensue from suddenly taking European law out of domestic law, the Conservative Party has developed a plan to preserve current law while still withdrawing from the European Union. For the Conservatives, this would be done through what is being referred to as the Great Repeal Bill. The Great Repeal Bill’s White Paper indicates that it will repeal the European Communities Act

 13

European Communities Act 1972, see also discussion in R (Miller) (n 3) [17-24]. Owen Bowcott, ‘Brexit may cost MPs and peers the power to pass laws, says former judge’ The Guardian (London, 3 May 2017) accessed 4 May 2017.

14

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1972 while simultaneously converting ‘directly-applicable E[uropean] U[nion] laws into U[nited] K[ingdom] law,’ and preserving the current ‘laws we have made in the U[nited] K[ingdom] to implement our E[uropean] U[nion] obligations.’15 The idea is that after the European Communities Act 1972 is repealed and the European Law is incorporated, Parliament will have time to alter or repeal whatever laws it chooses, without concern over whether they are in accordance with European laws. The reasoning behind this is to avoid sudden huge gaps in domestic laws by having a wholesale repeal of European laws. This however, is merely a stopgap designed to prevent unmanageable post-Brexit chaos and not a long-term solution to how the law should develop in the future.16 This seems like a reasonable approach, as it holds the law in stasis until after Brexit, when there will allegedly be more time to rewrite or repeal the relevant laws. This particular plan has been criticized by the Labour Party and others however, because the power to repeal or change laws after Brexit would be greater than the normal powers given to Parliament. Labour argues that there will be less scrutiny and oversight to the process.17 To solve this problem, Labour has stated that they will introduce a European Union Rights and Protections Bill that will convert all of the applicable European Union laws into United Kingdom laws, but will make it more difficult to change or repeal those laws in the future.18 Despite Labour’s criticism, either plan would help give Parliament time to consider the laws that need to change. When changing the laws, Parliament could use this as an opportunity to strengthen human rights protections.

The United Kingdom will not be bound by Future European Union Laws and will not have any Obligations regarding Future European Directives Although the future of those treaties and laws that the United Kingdom is obligated to follow as a current member of the European Union remains up in the air, leaving the European Union will unquestionably mean that the United Kingdom will not be bound by future European laws and

 15

Great Repeal Bill White Paper (n 7) paras 2.4 and 2.5. ibid para 2.4. 17 BBC News, ‘General Election 2017: Labour’s ‘day one’ pledge to EU nationals’ (UK Politics, 25 April 2017) accessed 4 May 2017; Bowcott, ‘Brexit’ (n 14). 18 BBC News (n 17). 16

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Directives.19 This means, for example, that within the area of human rights, the United Kingdom will no longer need to adopt the Directives resulting from the Stockholm Programme. The Stockholm Programme creates guidelines for increasing justice, freedom and security in Europe.20 The Programme’s purpose is to protect individuals’ fundamental rights and freedoms while simultaneously increasing security within the European Union. To do this, it encourages compliance by European countries through a series of European Directives focusing on six priorities: rights; justice; protection; access; solidarity; and Europe’s relationships with countries outside of the European Union.21 Several Directives focusing the rights of those accused of crimes have already been issued; including those addressing: interpretation and translation;22 the right to information;23 the right to access to a lawyer and right to communication;24 the presumption of innocence; and right to be present at trial.25 Each of these Directives is aimed at strengthening and creating greater uniformity throughout the European Union. Rather than a restatement of existing law, the Directives attempt to provide greater baseline protections than those currently existing. One example of this is within the Directive on the strengthening of certain aspects of the presumption of innocence and the right to be present at the trial in criminal proceedings.26 While, as its title implies, this Directive provides protections for the rights of the presumption of innocence and the accused’s presence at trial, it also creates added protections for other human rights, such as the right to silence. Within Europe, the right to

 19

Joint Committee on Human Rights (n 7) 27-28. The Stockholm Programme – An Open and Secure Europe Serving and Protecting Citizens [2010] OJ C115/01. 21 ibid. 22 Council Directive 2010/64/EU of 20 October 2010 on the right to interpretation and translation in criminal proceedings [2002] OJ L280/1. 23 Council Directive 2012/13/EU of 22 May 2012 on the right to information in criminal proceedings [2012] OJ L142/1. 24 Council Directive 2013/48/EU of 22 October 2013 on the right of access to a lawyer in criminal proceedings and European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty [2013] OJ L294/1. 25 Council Directive 2016/343/EU of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings [2016] OJ L65/1 (Presumption of Innocence Directive). 26 ibid. 20

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silence is a human right derived from the presumption of innocence.27 The current law, stemming from the European Court of Human Rights, allows for some restriction of the right to silence through the limited use of adverse inferences.28 Adverse inferences may be drawn against a suspect in order to prevent surprise exculpatory evidence from being revealed at trial.29 While the European Court of Human Rights maintains that a conviction cannot be based ‘wholly or mainly’ on a suspect’s silence, an adverse inference may be drawn against the accused if it makes sense in the particular case.30 Whether it is reasonable to draw an adverse inference is determined in light of the case’s circumstances.31 The European Court of Human Rights has established safeguards that must be in place before an adverse inference may be drawn. They are: 1. The accused must be given a warning about the effects remaining silent may have on their case;32 2. Whether an adverse inference is appropriate is determined by the judge; 3. No adverse inference can be taken before the prosecution establishes a prima facie case;33 4. Silence alone cannot support a conviction; and 5. Judges must explain the inferences taken and the reasons behind them.34 To allow an adverse inference before the prima facie case is established, or to have the inference mean more than that the defendant’s silence means they do not have an answer to the accusations,

 27

ibid para 24; Funke v France (1993) 16 EHRR 297. Avril v United Kingdom (2000) EHRR 1 [47]. 29 ibid. 30 John Murray v UK (1996) 22 EHRR 29 [47]. 31 ibid. In this particular case, a judge, rather than a jury, took the decision. The Court determined that this was a sufficient safeguard in this case because the judge had to give a reasoned opinion about what adverse inferences were taken and judges can understand the finer points of adverse inferences and when they are appropriate. The Court said that these safeguards might not be in place in a jury trial: ibid [51]-[54]. However, the Court found in Condron v UK that a jury can use adverse inferences but that the fact that a trial was by jury is a relevant factor in taking into account all the circumstances of the case in determining whether it was fair and appropriate to draw an adverse inference against a defendant: Condron v UK (2000) 8 ECHR 290 [58]. 32 Condron (n 31) [59]. 33 Therefore the inferences would only be common sense tipping points against the defendant rather than prima facie evidence. See Telfner v Austria (2002) 34 EHRR 207. 34 For these rules listed in more detail see Keir Starmer, ‘The Human Rights Act 1998: Overview’ in Keir Starmer, Michelle Strange and Quincy Whitaker (eds), Criminal Justice, Police Powers and Human Rights (Blackstone Press 2001) 219. 28

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would shift the burden of proof to the defendant.35 Further, an important factor in deciding if an adverse inference is appropriate is whether the suspect had access to a lawyer and what legal advice was given.36 That is, if the suspect’s lawyer counseled their client to remain silent for a legitimate reason, an adverse inference should not be taken against the suspect.37 Courts must use ‘particular caution’ before applying an adverse inference to a suspect’s case based on the accused’s silence.38 The new Directive on the strengthening of certain aspects of the presumption of innocence and the right to be present at the trial in criminal proceedings seems to limit or end the practice of drawing adverse inferences from accused’s silence by tying the right to silence directly to the right be protected from self-incrimination and by preventing these rights from being used as evidence against the accused.39 Adverse inferences under the current law allow the fact-finder to use the accused’s silence as evidence that there is no answer to the accusation against them, which is the same as using it to provide some evidence against the accused. Thus, if the fact-finder makes this inference, it also arguably means that exercising the right to silence is necessarily self-incriminating. While a conviction cannot be wholly based on inferences drawn from the accused’s silence, partially basing a conviction on an adverse inference is permissible. This however, appears to be contrary to the Directive which states that [t]he exercise of the right to remain silent or the right not to incriminate oneself should not be used against a suspect or accused person and should not, in itself, be considered to be evidence that the person concerned has committed the criminal offence concerned.40

No longer being able to use the accused’s silence against them increases the minimum human rights standards that countries will need to provide with respect to the right to silence and the right against selfincrimination.



35 Ben Emmerson, Andrew Ashworth and Alison Macdonald (eds), Human Rights and Criminal Justice (Sweet and Maxwell 2012) 631, [13]-[43], citing Telfner (n 33). 36 Murray (n 30) places emphasis on the importance of legal advice while Condron (n 31) states that the content of said legal advice may be relevant. See also, Avril (n 28); Emmerson (n 35) 629, [13]-[37]. 37 Avril (n 28); Emmerson (n 35) 629, [13]-[37] citing Condron (n 31). 38 Condron (n 31) [60]. 39 Presumption of Innocence Directive, paras 24 and 28. 40 ibid para 28.

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European Directives set common standards that all of the countries in the European Union must follow. It is up to the individual countries to decide how the Directives are implemented. To date, the United Kingdom has taken measures to incorporate the Directives on interpretation and translation41 and the right to information42 into their national law. They have not, however incorporated the Directives on the right to access a lawyer and the right to communication43 or the one addressing the presumption of innocence and the right to be present at trial.44 This is because the deadlines for compliance with these Directives were after the Brexit referendum. Therefore, there was no point in implementing a Directive to which the United Kingdom will not be bound post-Brexit. While it could be argued that it is detrimental to human rights that the United Kingdom is not obligated to implement these European rules, there is an opportunity for the United Kingdom to learn from the Stockholm Programme and other future laws that will develop within the European Union. Further, although these Directives are meant to create a common minimum standard throughout Europe, the United Kingdom could view its

 41

EUR-Lex, ‘National transposition measures communicated by the Member States concerning: Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings’ accessed 4 May 2017. 42 EUR-Lex, ‘National transposition measures communicated by the Member States concerning: Directive 2012/13/EU of the European Parliament and the Council of 22 May 2012 on the right to information in criminal proceedings’

accessed 4 May 2017. 43 EUR-Lex, ‘National transposition measures communicated by the Member States concerning: Directive 2013/48/EU of the European Parliament and the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty’ accessed 4 May 2017. 44 EUR-Lex, ‘National transposition measures communicated by the Member States concerning: Directive (EU) 2016/343 of the European Parliament and the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and the right to be present at the trial in criminal proceedings’ accessed 4 May 2017.

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freedom not to implement the Directives as an opportunity to go beyond the minimum standards set and to provide greater human rights.

The United Kingdom may use Brexit as an Opportunity to repeal the Human Rights Act There have been calls to repeal the Human Rights Act for at least the past ten years.45 These arguments have been reignited in the months since the Brexit vote.46 As a piece of domestic legislation, not connected to European Union membership, it appears at first glance that the Human Rights Act is irrelevant to Brexit; the United Kingdom could repeal the Human Rights Act whenever it chooses and not affect its membership in the European Union. A successful Brexit does not require repealing the Human Rights Act or withdrawing from the Council of Europe. However, Brexit puts the Human Rights Act at risk because it is thought to be another example of legislation that transfers Parliamentary sovereignty to Europe. Further, as Parliament will already be repealing the European Communities Act 1972, and generally removing European influences from the United Kingdom’s laws, this will have a knock-on effect of delegitimising the Human Rights Act because it is seen as a tie to Europe. Additionally, Theresa May, the current Prime Minister, has also made no secret of her desire to repeal the Human Rights Act.47 The Human Rights Act incorporates the European Convention on Human Rights and the decisions of the European Court of Human Rights into national law. Reminiscent of the argument in favour of Brexit, the main argument supporting repeal of the Human Rights Act is that the European Court of Human Rights takes sovereignty from the United Kingdom. This perspective is based on the fact that the European Court

 45

Ros Taylor, ‘Cameron Calls for Repeal of Human Rights Act’ The Guardian (London, 12 May 2006) accessed 4 May 2017. 46 See for example, Owen Bowcott, ‘UK bill of rights delayed further by Brexit and supreme court case’ The Guardian (London, 9 December 2016) accessed 4 May 2017. 47 Rowena Mason, ‘Theresa May urged to clarify stance on European rights convention’ The Guardian (London, 25 April 2017) accessed 4 May 2017; Bowcott, ‘UK bill of rights’ (n 46).

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interprets national laws in view of the requirements of the European Convention on Human Rights, rather than through domestic law or practice. Politicians advocating for a repeal of the Human Rights Act insist that freeing the United Kingdom from the scrutiny of the European Court on Human Rights will allow the Supreme Court to interpret British law based on Parliamentary intent.48 The European Convention on Human Rights sets out the minimum standard for human rights in Europe. Just as with European Directives, States Parties must respect these minimum guarantees but each member state is free to choose to require stronger protections. The Convention is enforced and interpreted by the European Court of Human Rights. The European Court of Human Rights helps ensure that human rights are being respected throughout Europe by acting as a court of last resort for those who believe that their human rights have been violated by a European government.49 A country must adopt the European Convention on Human Rights to be subject to the European Court of Human Right’s jurisdiction.50 The United Kingdom adopted the Human Rights Act in 1998 in order to incorporate the provisions of the European Convention on Human Rights into their national law.51 Before the Human Rights Act was adopted, human rights were upheld through the common law in a non-specific and random manner, with no attempt to consider human rights as a separate, distinctly developed part of law.52 The Human Rights Act was meant to codify and consolidate the United Kingdom’s human rights law and require the courts to interpret domestic laws, as far as possible, in compliance with the European Convention on Human Rights.53 The Human Rights Act does not make the rulings of the European Court of

 48 Brice Dickson, ‘Repeal the HRA and Rely on the Common Law?’ in Katja Ziegler, Elizabeth Wicks and Loveday Hodson (eds), The UK and European Human Rights (Hart 2015) 116. 49 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 35(1). Or whatever country is relevant for the accusation that the individual’s rights are not being protected. The individual need not be a national of the country; if that country is alleged to have violated the individual’s human rights and that country is a State Party to the European Convention on Human Rights then the European Court may have jurisdiction over the matter. 50 ECHR art 58. 51 Human Rights Act 1998 (HRA 1998). 52 Dickson (n 48) 120-122. 53 HRA 1998, ss53(2)(b), 54(2); Starmer (n 34) 8.

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Human Rights binding on the United Kingdom, but does encourage their adoption by requiring them to be taken “into account”.54 Were the Human Rights Act repealed, the United Kingdom would need to decide how to protect the human rights of its citizens. First, it is important to state that the common law and the other Acts in force would still be applied55–repealing the Human Rights Act would not necessarily trigger any other change to the criminal laws of the United Kingdom. Further, individuals who believe that their rights have been violated or unduly limited may still appeal to the European Court of Human Rights so long as the United Kingdom does not denounce the European Court of Human Rights by withdrawing from the Convention.56 The European Court of Human Rights’ jurisprudence would merely be a guide to the development of law in the United Kingdom, and the United Kingdom would not be required to follow the Court’s rulings.57 This would return the United Kingdom to the situation that existed before the Human Rights Act. The United Kingdom would not give up the European Court as a guide unless it left the European Convention on Human Rights. However, throughout the Human Rights Act’s existence, the Supreme Court, and previously the House of Lords, has followed the European Court of Human Rights’ decisions on human rights and failed to simultaneously develop the common law.58 This has led them to focus on case-specific outcomes, and whether those outcomes take the implicated rights into account, rather than evaluating the means to achieve those outcomes and whether the means are consistent with human rights values.59 Additionally, when discussing human rights the courts have not ‘enunciate[d] clear common law principles in favour of human rights values such as liberty, freedom from ill-treatment, freedom of expression, equality and the franchise’.60 This leaves the common law underdeveloped, which creates gaps in the law, were the United Kingdom to start relying solely on the common law rather than law developed by the European Court of Human Rights.

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HRA s2(1); Starmer (n 34) 15. Dickson (n 48) 122. This is not necessarily true of other laws. Laws referring to “Convention rights” or involving some of the devolution of power to Wales, Scotland and Northern Ireland would also be impliedly repealed (at least to that relevant portion of the Act): ibid. 56 ECHR arts 34, 58. 57 Dickson (n 48) 122. 58 ibid 125-128. 59 ibid 126-7. 60 ibid 127. 55

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It is highly likely that were the Human Rights Act repealed some other statutory provision would be implemented to protect human rights.61 There is currently no overarching plan for this. Where the Labour Party has argued that the Human Rights Act should not be repealed, and that there should be a British Bill of Rights that builds off of and expands the rights contained in the Act,62 the Conservative Party believes that a British Bill of Rights is necessary to help protect the rights lost by repealing the Human Rights Act.63 This Bill however, has not been written and it is unclear what it would entail–would it be a list of specifically enumerated rights like the European Convention on Human Rights and the Human Rights Act? Or would it be a general statement of British human rights values? The Conservatives believe that the prospective British Bill of Rights should replace the Human Rights Act and be based on British human rights values.64 However, it is unclear what those common values are or whether they even exist.65 As a result, there is considerable, well placed, fear that repealing the Human Rights Act would cause a further diminution of human rights in the United Kingdom, and that any new statutory attempt to protect human rights would fail to offer the same protections found in the Human Rights Act.66 It is widely believed that an accused person’s human rights will narrow if the Human Rights Act is repealed. A further constriction of human rights, however, does not need to be the case. Were the United Kingdom to repeal the Human Rights Act, the country could use it as an opportunity to develop stronger human rights protections. Repealing the Human Rights Act is not a requirement of Brexit and the United Kingdom would be voluntarily repealing its own Act. Thus, the United Kingdom can take its time, and only repeal the Act when a new law is carefully drafted that fully protects human rights. The new Act could strengthen human rights in British law and could clearly state what those rights are and how they will

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ibid 132. ibid 132.; Richard Burgen, ‘The “British Bill of Rights” will not protect our human rights’ The Independent (London, 10 December 2016) accessed 4 May 2017; LSE Commission on the Future of Britain in Europe, ‘The Implications of Brexit for fundamental Rights protection in the UK’ (Report of the hearing, 25 February 2016). 63 Conservatives, ‘Protecting Human Rights in the UK’ (The Conservatives’ proposals for changing Britain’s human rights laws, 2015). 64 ibid. 65 LSE Commission (n 62) 12. 66 Dickson (n 48) 132; Burgen (n 62); LSE Commission (n 62). 62

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be upheld. It is possible, even with a repeal of the Human Rights Act, that a British Bill of Rights could incorporate the rights provided by that Act and expand on them. If that is the case, then repealing the Human Rights Act creates an opportunity to improve the rights of the accused as the United Kingdom examines and reshapes the legal system following Brexit.

Case Study of the Right to Silence - Despite the European Union’s Human Rights Protections, some Rights in the United Kingdom could be strengthened Although the human rights protections provided by the European Union are meant to constitute minimum guidelines below which a state is not permitted to depart, some laws in the United Kingdom fail to meet those required minimum standards. One example of is the right to remain silent in England and Wales. Rather than being codified, the right to silence in English and Welsh law is found in the common law and expressed as a series of two general and four specific immunities.67 The two general immunities, which set out the basic ideas underlying the right to silence, prevent any person from: 1. being compelled to answer questions under threat of punishment; or 2. answering questions that may self-incriminate.68 The specific immunities, on the other hand, apply to anyone under suspicion of having committed a criminal offence. These are: 1. suspects cannot be forced by threat of punishment to answer police questions; 2. at trial the accused cannot be compelled to give evidence or answer questions; 3. Anyone charged with a crime is immune from ‘questions material to the offence addressed to them by police officers’; and 4. A defendant is immune from having adverse comments made on their failure to either ‘answer questions before the trial’ or ‘give evidence at trial’.69 These immunities are designed to protect a suspect from being compelled to speak or risk having any direct negative consequence arise from their silence. Taken together, these six immunities constitute the common law right to silence in England and Wales. The general immunities form an umbrella of protections preventing the accused from being forced to talk to the government, while the specific immunities help protect suspects from governmental over-reach. The right to silence prevents an accused person

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R v Director of Office of Serious Fraud (ex parte Smith) [1993] AC 1, [1992] 3 WLR 66 (Lord Mustill). 68 ibid. 69 ibid.

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from being compelled to testify against him or herself. This right is not only limited to trial, it extends to the pretrial and investigatory phases of a case. In total, this means that a person cannot be compelled to talk to the government in a criminal matter if they choose not to. Only two years after these immunities were enunciated by the House of Lords, Parliament passed the Criminal Justice and Public Order Act 1994 allowing the fact-finder at trial to draw adverse inferences against an accused that has chosen to exercise their right to remain silent during either the pretrial or trial phase.70 Section 34 allows an inference to be drawn from exercising the right to silence during pre- and post-charge questioning.71 This section also allows an adverse inference to be drawn if a defendant omitted information during questioning, even if the police did not ask any questions regarding the particular omitted information. Section 35 of the Act provides that a defendant who either does not testify at trial or whose trial testimony differs in any way from their statement during the investigation will also have an adverse inference taken against them. Based on these sections the only defendants who will not be affected by an adverse inference are those who give their full story to the police during the investigation, including providing information that is not requested, and then stick with that version of events all the way through to the end of trial. There are exceptions under which the fact-finder is prevented from drawing an adverse inference: 1. when the accused is in custody and the questioning has proceeded without allowing the accused the option of counsel; 2. when the ‘accused’s guilt is not at issue’; and 3. when the accused’s physical or mental condition at trial makes it ‘undesirable for the accused to give evidence’.72 These exceptions are quite narrow. The first seems relatively unlikely to arise in the current context of criminal procedure. The police know that accused persons have the right to counsel before questioning and it would be foolish to proceed without at least offering them the opportunity to exercise this right. The second exception is also unlikely to occur during a criminal proceeding. A trial, by

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These adverse inferences come into play during the pretrial phase under Section 34 of the Criminal Justice and Public Order Act 1994 and during the trial phase under Section 35. 71 R v Argent [1997] 2 Cr App R 27, 32-33 establishes the six elements that must be met in order for s34 to apply. For a larger discussion of this case see Starmer (n 34) 217-18. It has been held that a jury trial would require appropriate jury instruction before a jury could take adverse inferences in these situations. See Beckles v United Kingdom (2002) 36 EHRR 162 [65]. 72 Criminal Justice and Public Order Act 1994, s35.

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definition, means that there is a question about the guilt or innocence of the accused person. The third exception seems the most possible, however the specific condition(s) that would have to exist for this exception to apply, are not defined. The word ‘undesirable’ is vague and can lead to a whole host of situations where this rule could be applied inconsistently– including those involving mental illness, handicap, or inebriation. Further, this exception is only mentioned in the section that discusses adverse inferences based on silence or failure to give evidence at trial. It seems that there is still a question of whether an inference could be drawn based on a suspect’s pre-trial silence even if their physical or mental condition would make it ‘undesirable’ for them to speak, however the Act does not allow this exception for pre-trial silence. The weight of the inference is not specifically defined; the judge may draw whatever inferences ‘from the failure as appear proper’.73 The lack of a clear definition means that an adverse inference drawn against the defendant could be anywhere from no inference to enough of an inference for a full conviction. The common law limits the upper-end of this spectrum in that a conviction cannot rest solely on an adverse inference.74 An inference of any other strength is allowed. The lack of guidance on how the inference is to be applied, and to what degree it should count against the defendant, leaves the door open for wide-ranging results, which could vary between courts and situations and could call into question the fairness of criminal trials. This high degree of uncertainty about the applicability and persuasiveness of adverse inferences can result in an application that exceeds what is permitted by the European Court of Human Rights and the Directive on the presumption of innocence. Under the law of the United Kingdom, there is no need for the fact-finder to explain their use of an adverse inference. Further, while the European Court of Human Rights has a vague standard of how much an adverse inference can affect the decision to convict, the United Kingdom’s rules are only limited to the extent that the adverse inference cannot be the whole reason for the conviction. Further, while there are some safeguards, they are quite limited. One general safeguard should be whether the defendant’s counsel advised them to remain silent. However, in the United Kingdom, the lawyer’s advice to his client to remain silent must be balanced against the public’s interest in knowing suspects’ explanations for the alleged charges.75 The point of this is to prevent a blanket “immunization” against

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Criminal Justice and Public Order Act 1994. R v Cowan [1996] QB 373. 75 See R v Howell [2003] EWCA Crim 1, [2005] 1 Cr App R 16. 74

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adverse inferences being taken as a result of the advice of counsel.76 The result is that if the judge feels that the defendant reasonably remained silent on the advice of counsel, regardless of whether the defendant could provide evidence, then the accused’s silence may not result in an adverse inference.77 If, however, the judge believes that the defendant cannot provide evidence or has no way of responding to the prosecution’s claims, but instead is merely using their lawyer’s advice as an excuse not to speak, then an adverse inference may be drawn from the defendant’s silence.78 This undermines the right to silence, the right to counsel, and the authority of the lawyer’s advice. Through these provisions, and despite the human rights policies and protections of the European Union, the Criminal Justice and Public Order Act has limited the right to silence in England and Wales to such an extent that, functionally speaking, the right to silence no longer exists. Whether an accused person chooses to speak, to remain silent or to make that decision on the advice of counsel, an adverse inference will be taken against them. It is difficult to determine under what specific conditions an adverse inference will not result. It is clear that the right to silence provided in the United Kingdom is not adequate to protect the human rights of the accused and that it does not meet the minimum standards of the European Union, the Stockholm Programme, or the European Court of Human Rights. The current law relating to the right to silence in England and Wales does not fully protect human rights. Further, it could get worse once the United Kingdom disentangles itself from the European Union. However, there is opportunity here. While the United Kingdom would no longer be subject to the regulations and Directives of the European Union, the country will also not be inundated by European rules, regulations, and laws, and so can focus on improving domestic legislation. In addition, the need to review, revise, and improve laws post-Brexit, because of the holes left by removing references to and influences from Europe, will cause Parliament to consider a large amount of the domestic legislation. If Parliament takes the opportunity to focus on human rights, then laws like

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ibid; R v Knight [2003] EWCA Crim 1977, [2004] 1 WLR 340; R v Hoare [2004] EWCA Crim 784, [2005] 1 WLR 1804; R v Beckles [2004] EWCA Crim 2766, [2004] All ER (D) 226. These cases are limiting the rule of Betts and Hall [2001] EWCA Crim 224, [2001] 2 Cr App R 16. See Emmerson (n 35) 633, [1347]. 77 Judicial College, Crown Court Bench Book: Directing the Jury – First Supplement (Oct 2011) Ch 15. 78 ibid.

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the Criminal Justice and Public Order Act 1994 could be improved and better, more substantial human rights could be provided.

Stronger Rights, Stronger Nation Some of the human rights protections currently in effect in the United Kingdom are not as strong as they could be. The right to silence in England and Wales is one extreme example of this. Exiting the European Union provides an opportunity to improve human rights laws, if the United Kingdom decides to prioritise human rights. Brexit will result in the need for a large number of domestic laws to be rewritten to remove European influences and fill gaps in the law. While Parliament is rewriting and reevaluating the laws they could place an emphasis on protecting and strengthening human rights. It is extremely unlikely that the United Kingdom will take this opportunity. Being a human rights leader does not seem to be a priority, despite the Conservative Party’s hollow assertions to the contrary.79 Human rights have fallen quite far down the agenda of concerns following Brexit. The government and the public seem preoccupied with issues surrounding immigration, economics, and whether it is possible to negotiate favorable trade conditions with Europe. In a way, Brexit can be seen as a way to rebrand the United Kingdom. If leaders and voters truly believe that Brexit is an opportunity to take back sovereignty and to establish a stronger national government, then this is a revolutionary moment. No longer subject to the rules of the European Union, the United Kingdom will be free to craft its own laws. Brexit will require the rewriting of many laws of the United Kingdom. Therefore, Brexit should be seen as an opportunity to improve human rights and to make the United Kingdom a nation known throughout the world for equality, fairness and justice.

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Brexit White Paper (n 11). The White paper contains many concerns regarding trade and regulations, but only one mention to human rights which is non-specific: ibid 67.

CHAPTER SEVEN THE BUSINESS OF ASYLUM JUSTICE AND THE FUTURE OF HUMAN RIGHTS JO WILDING

Introduction The UK has an adversarial asylum process. It is for the applicant to prove all parts of the account, albeit to a lower standard of proof than the usual ‘balance of probabilities’, namely that there is a real risk of persecution in the country of origin. Applications for refugee status are decided by the Home Office, a government department also tasked with reducing immigration. The Home Office has been criticised for a ‘culture of disbelief’ in its consideration of asylum claims, creating a serious obstacle to protection.1 Around two thirds of applications are refused by the Home Office, with forty-two percent of appeals succeeding in 2016.2 Certain characteristics of the asylum jurisdiction set it apart from others in terms of decision making as pointed out by Robert Thomas, one of the main authors on the administrative decision making system. It has a high volume, fact based case load; a high degree of compulsion in that applicants have little choice but to take part in the process; binary decisions, in the sense that there is rarely room for compromise or mediation; and many more appeals against negative decisions than other

 1 See for example James Souter, ‘A culture of disbelief or denial? Critiquing refugee status determination in the United Kingdom’ (2011)1 Oxford Monitor of Forced Migration 48; Sarah Gibson, ‘Testimony in a culture of disbelief: Asylum hearings and the impossibility of bearing witness’ (2013) 17 Journal for Cultural Research (2013) 1; Debora Singer, ‘How do you prove you are gay? A culture of disbelief is traumatising asylum seekers’ Guardian (24 November 2015). 2 Refugee Council Quarterly Asylum Statistics, February 2017.

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jurisdictions.3 The same factors complicate the work of an asylum legal representative. Most applicants are unable to provide physical evidence of their experiences: even where there are scars from torture, it is difficult to prove the cause, even with expert medical evidence. Interpreters are usually needed, yet they bring a risk of misinterpretation. Cultural differences and the effects of trauma or depression can also create difficulties and increase the time needed to do a thorough job as a legal representative. And the assessment of risk is forward-looking, so even proof of past persecution may not be enough: is there a real risk of future persecution? Given the obstacles for applicants in proving their cases, it is perhaps unsurprising that those with legal assistance have better prospects of success. For represented appellants, 34 percent of appeals were allowed, compared with 22 percent of unrepresented appellants. Represented cases were also less likely to be dismissed procedurally, as invalid or out of time, for example because grounds of appeal were not submitted (around eight percent, compared with 15 percent of unrepresented cases).4 It is therefore clear that human rights in the asylum context depend heavily on good quality legal representation. Access to such representation depends heavily on legal aid, since the vast majority of newly arrived asylum applicants are unable to afford private legal representation.5 After a series of cuts, asylum cases remain in the scope of legal aid, and any person claiming asylum is entitled (subject to a means test) to publicly funded representation at least up until the Home Office’s decision on their application. But this entitlement on paper may become illusory as a result of the fee regime and the system of contracting – either because the applicant cannot find a legal aid representative at all or because the quality of representation available is too poor. This chapter draws on two previous pieces of research which touched on the impact of legal business forces on human rights protection. The first was an exploration of the experiences of unaccompanied children seeking asylum in England, 6 the second focussed on the quality of asylum legal

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Robert Thomas, 'Evaluating tribunal adjudication: administrative justice and asylum appeals' (2005) 25 Legal Studies 462. 4 Anita Krishnamurthy and Karen Moreton, Monitoring the early impacts of the Legal Aid, Sentencing and Punishment of Offenders Act (2012) on onward immigration appeals (Ministry of Justice Analytical Series 2015). 5 Most qualify for asylum support under the National Asylum Support Scheme on the basis that they would otherwise be destitute. 6 The MinAs project, ‘In Whose Best Interests? Exploring unaccompanied minors’ rights through the lens of migration and asylum processes’

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advice in England.7 From a thematic analysis of the interviews, five groupings of interacting ‘forces’ emerged as having a significant impact on access to, and quality of, legal services for people seeking asylum: x Contract forces: those arising from the contract between the advice provider and the Legal Aid Agency; x Business forces: those arising from the business model and operating practices of the advice provider organisation; x Market forces: those impacting on the provider, such as level of demand and competition; x Regulatory forces: the requirements and effects of professional and other regulators and the Legal Ombudsman; x Asylum system forces: those arising out of the asylum decision making (Home Office) and Tribunal systems which impact on legal advice providers. Space does not permit a full exploration of all of these forces separately, so this chapter focusses on how the interactions between these forces affect access to, and quality of, representation. They do so by incentivising poor quality work; by making good quality work financially inviable and causing some good quality providers to close or withdraw from the legal aid market; by restricting access to representation at certain stages; and by propping up poor quality firms. The next section sets out a brief history of legal aid in the asylum field, to give context to the discussion which follows. The remainder of the chapter presents and discusses evidence about access and quality at different stages of the process: advice before claiming asylum, representation between claim and decision, and representation at appeals stage. I then consider some issues arising particularly in immigration

 accessed 20 June 2017. Eleven unaccompanied children and seventeen adults working with them were interviewed about wide ranging experiences including the process of claiming asylum and legal representation. 7 Migration Work CIC, Quality of legal services for asylum seekers (SRA, January 2016). Jointly commissioned by the Solicitors Regulation Authority and Legal Ombudsman, the research was conducted by Refugee Action, Asylum Research Consultancy and Migration Work CIC. It consisted, among other methods, of interviews with 42 ‘key informants’ including refugee support workers, lawyers, Legal Aid Agency officials and representatives of regulatory bodies, which inform this chapter, hereafter ‘key informant interviews’. 123 asylum-seekers were also interviewed.

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detention. I conclude that market forces fail to mitigate these risks to access and quality, so that the current operation of publicly funded asylum legal services leaves the future of asylum seekers’ human rights extremely precarious.

A Very Brief History of Publicly Funded Asylum Legal Services Most histories of legal aid go back to the Rushcliffe report in 1948 and the earlier charitable schemes for helping unrepresented defendants and would-be divorcees who could not afford a lawyer.8 Legal aid for immigration and asylum appeals (as opposed to judicial review) did not exist until later: the 1967 Wilson Report recommended changes to the way in which appeals were heard against decisions of immigration officers, including that both parties (state and migrant) should be represented, since the process was adversarial.9 As a result, the UK Immigration Advisory Service (UKIAS) was founded in 1969 as a welfare organisation providing the majority of immigration advice and representation. The Refugee Unit of the UKIAS was set up in 1976, funded at that stage by the Office of the United Nations High Commissioner for Refugees (UNHCR). In 1992 the Refugee Unit separated from UKIAS as an independent charity, the Refugee Legal Centre (RLC), funded by a block grant from the Home Office. Legal aid on the judicare model – ie provision by private firms paid for by the government on a case-by-case basis - has existed for appeals only since 1998,10 a time when the rest of the legal aid sector was already being subjected to cuts in scope and rates and the beginnings of marketisation and managerialism. Three other key trends shaped the growth in demand for immigration and asylum legal services at that time: firstly, there had been an increase in numbers of people seeking asylum since the early 1990s.11 Secondly, in 2000 the UK began the practice of ‘dispersal’ of people who applied for asylum, through the National Asylum Support Scheme (NASS) established under the Immigration and Asylum Act 1999. Those seeking

 8

See for example Steve Hynes, Austerity Justice (2012, Legal Action Group). Geoffrey Care, Migrants and the Courts: A Century of Trial and Error? (Routledge 2014). 10 Apart from cases involving deportation and liberty, which were already funded under the general legal aid scheme. The previous provision through the Refugee Legal Centre and UKIAS was on a welfare model of legal aid. 11 Matthew Gibney, The ethics and politics of asylum: liberal democracy and the response to refugees (2004 Cambridge University Press). 9

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asylum were no longer eligible for mainstream housing assistance but instead were to be accommodated on a no-choice basis in a ‘dispersal area’ within local authority areas which had agreed to accept asylum seekers. In both policy and practice, these were to be areas where housing was cheap and readily available, i.e. vacant.12 This created pools of demand for legal services in new, generally poor parts of the UK. Thirdly, there was a vast increase in the use of immigration detention from 1993 onwards but particularly from 2000, when the immigration detention centre at Oakington was opened with a capacity of four hundred, for the purpose of processing fast-track asylum claims. Overall immigration detention capacity grew exponentially with five more new centres opening between 2000-02,13 creating a further pool of demand for legal services such as bail applications. Indeed one policy intention of the Nationality, Immigration and Asylum Act 2002 was to ‘normalise detention’ as part of the asylum process.14 Throughout this time there was a vast increase in the amount of immigration and asylum legislation on the statute books and an accompanying swell of new case law, greatly increasing the complexity of the law overall and of individual cases. By 2004, all publicly funded asylum legal services including the Refugee Legal Centre were under the remit of the Legal Services Commission, on the judicare model. In the same year, cost limits were imposed meaning that lawyers could not be paid for more than five hours’ work on asylum claims up to the Home Office decision whether to grant or refuse asylum. Eventually, it became possible to apply for extensions, but this was a cumbersome and adversarial process. From 2005, lawyers had to work ‘at risk’ on applications for permission to appeal against an adverse decision in the first level of the appeals tribunal, meaning they were not paid unless they succeeded.15 The drive to lower the costs of legal aid continued, and in July 2006, the Carter review of legal aid procurement was published advocating:

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Liza Schuster, ‘A sledgehammer to crack a nut: deportation, detention and dispersal in Europe’ (2005) 39 Social policy & administration 606; Simon Guentner, Sue Lukes, Richard Stanton, Bastian A. Vollmer and Jo Wilding, ‘Bordering practices in the UK welfare system’ (2016) 36 Critical Social Policy 391. 13 Lindholme, Dungavel, Yarls Wood, Dover and Haslar, followed by Colnbrook in 2004 and Brook House in 2009. 14 Ian Macdonald and Ronan Toal (eds), Macdonald's Immigration Law and Practice (9th Ed, Butterworths Lexis Nexis 2014) 1381. 15 Anne Singh and Frances Webber, Excluding migrants from justice: the legal aid cuts (Institute of Race Relations Briefing paper 7, 2010).

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The system proposed by Lord Carter began being implemented in 2007. A fixed fee is paid for most work, based on the assumption of ‘swings and roundabouts’: some cases would cost more than the fixed fee but others would cost less and these, it was theorised, would balance each other out. Under the Carter proposals, quality was to be underpinned by only giving contracts to organisations which received the top two levels on peer reviews of their files. However, contracts were in fact given to those who only reached level three, ‘threshold competence’.17 It was intended that Best Value Tendering (BVT) would be introduced for legal aid contracts from 2010, a proposal which was vigorously opposed by lawyers and others who pointed out that ‘best value’ was a euphemism for ‘cheapest’ and the cheapest advice was unlikely to be of an adequate quality to ensure that trials were fair and legal rights were respected. At the time of writing, the threat of BVT appears to have subsided for both civil and criminal legal aid for the time being. However, austerity policies in the UK led to further cuts in legal aid across the board under the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012. Almost all non-asylum immigration work was removed from the scope of legal aid and rates of pay were cut by ten percent for what remained: asylum, human trafficking, domestic violence (where this could be proved) and detention. Already, in 2010 and 2011, the two biggest providers of legal aid advice in asylum and immigration had gone into administration, first the Refugee Legal Centre (by then known as Refugee and Migrant Justice) and then the Immigration Advisory Service. Legal aid cuts and changes were a major contributor to both organisations’ demise. Legal aid services differed from other public services in that they had from the start been provided by private firms and charities which worked directly for members of the public and then billed the relevant government department. There was never a service run by government itself in the

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Lord Carter of Coles, Legal Aid: A market based approach to reform. (House of Lords, July 2006). 17 Adeline Trude and Julie Gibbs, Review of quality issues in legal advice: measuring and costing quality in asylum work (Information Centre on Refugees and Asylum, 2010).

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sense of the National Health Service, Her Majesty’s Prison Service or Local Education Authorities which provided all state funded services either nationwide or regionally. In that respect, contracts between a government agency and private firms or charities for the provision of legal services were less of a change than in other public services. But, as will be shown, the policy of submitting publicly funded legal services to market forces was nevertheless a significant change. The question for the rest of this chapter is whether, given the cuts and other changes to legal aid outlined above, human rights in the asylum context can be adequately protected in the current marketised system.

Access to Advice and Representation Access before Claiming Asylum All providers of legal aid services must have a contract with the Legal Aid Agency for the relevant area of law (immigration, family, crime). They are also geographically limited and cannot normally take on clients who are outside their procurement area.18 But each provider is also limited to a certain number of ‘New Matter Starts’ in each financial year. In one contracting round, almost all providers were limited to one hundred matter starts per office, leading some providers to open new offices to gain more matter starts. This has a number of consequences: first, it forced some providers to close as they were no longer financially viable. Second, it means that some clients are forced to go to providers whose quality is lower. During the research on unaccompanied children, some interviewees referred to an area with ‘three providers, two good ones and one bad one, doing roughly a third of the cases each’. Another interviewee cited a particular ‘terrible’ firm which nonetheless succeeded in getting a legal aid contract because it was in an area to which asylum seekers were dispersed and which was short of providers. This means that poor quality providers are effectively propped up by holding a contract in an area where there is a pool of demand. Even when they were supported by organisations which knew the relative quality of the different providers, some people were compelled to go to the lower quality provider because of the matter start system. But perhaps the most serious consequence of the matter start system is this: most people who claim asylum will be dispersed, on a no-choice



18 Exemptions may apply where there is no closer provider or the client has moved, for example.

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basis, anywhere in the UK once they claim asylum. There is a fixed payment to the provider of £100 for the provision of advice before the claim is made – this includes all ‘disbursements’ such as payment to interpreters. This would not matter if the client carried on instructing the same adviser throughout their asylum claim, but realistically the client will have to find a new adviser in the dispersal area. That means one Matter Start is used up for the price of £100 minus the cost of the interpreter. In effect it is not financially viable for many firms to provide advice before the claim is made. Claiming asylum has huge repercussions for a client, including potentially being detained, and a minor error or lack of clarity at the initial screening interview can lead to a case being lost. The consequence is that many people cannot access legal advice at all before they claim asylum.

Access up to the Asylum Decision The stage between claiming asylum and the Home Office decision is again funded with a standard fee.19 The representative receives this fixed fee for the case whether they do one hour’s work or ten, unless the total amount of work done exceeds three times that paid for on the standard fee (called the escape fee, because the case escapes from the fixed fee scheme).20 A number of interviewees said that this standard fee created a disincentive to do any work or an incentive to do the bare minimum of work. Representatives could (and some do) simply take initial instructions, sign the client up to legal aid, send a client care letter and then await the Home Office’s decision. Other representatives might carry out the work more scrupulously but might nevertheless take a business decision not to exceed the time paid for under the standard fee because of the difficulties in establishing that the case justified the escape fee. However, interviewees emphasised the importance of time, in order to build the client’s trust and enable the client to disclose or explain clearly all relevant information and to ensure that the statement is accurate and complete. If the case reaches the escape fee threshold, the provider is paid for the work at an hourly rate but interviewees explained that there are disadvantages to billing for such cases. Firstly, any case billed as an

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£413 at the time of writing. This is not a simple hourly calculation, however, because different activities are nominally paid at different rates, so it is necessary to keep an account of the work as if paid at hourly rates, even though the difference between £413 and £1239 will be unpaid. 20 Provided that the Legal Aid Agency does not assess some of the work as having been unnecessary.

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escape case has to be individually assessed. This leads to unpaid ‘haggling’ with the Legal Aid Agency over the time and money spent and frequently having ‘an hour here or there’ refused so that the case reverts to a standard fee. Secondly, this in turn may lead to delays in receiving any payment at all for the case, during the assessment period. Interviewees from some top quality firms (as ranked in the market guides Chambers and Partners and Legal 500) said that cases commonly cost about double the fixed fee, meaning that they could not claim the escape fee and were only paid for around half of their work. Since the representative does not know until after the case what they will be paid for beyond the standard fee, there is a strong incentive to avoid doing that work at all. Time was one of the core problems cited in relation to the standard fee. Over a quarter of interviewees (all of those who commented) said that the amount of time paid for was not adequate to provide a good quality service, giving enough time for the client to explain their full story. This means that some (good quality) advisers are leaving the field of publicly funded asylum services altogether because they cannot fulfil their professional obligations in the time available. Others were said to be declining in quality: a part-time judge remarked on firms which had expanded to take on larger amounts of casework in order to be financially viable, but as a consequence the resources for each case were too limited to provide a good service.21 In particular, this was said to happen as a result of the use of paralegals with less experience or training to do work more cheaply but at the risk of lower quality. Representations or witness statements, if prepared at all, were more likely to be generic and basic. Client care was particularly likely to suffer because of time pressure: examples included taking a long time over non-urgent casework, being unable to return calls promptly and having to limit appointment times. Communication and the ability to build trust between client and adviser are lost as a result. This is exacerbated by conscientious advisers working ‘15 hours a day, seven days a week’, leaving them stressed and exhausted, so that it was harder for them ‘to treat clients with kindness and respect’.22 This is not cosmetic: where the client has suffered trauma they frequently need time and careful interviewing to disclose the full extent of their experiences. If this does not happen, the most meritorious asylum claims are likely to fail. Time pressure is all the more acute when interpreters are needed. The same pressure was described as applying to children’s cases,

 21 22

Key informant interviews. Key informant interviews.

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albeit these are not subject to the standard fee, because of the difficulty in obtaining extensions to the initial ceiling of £800.

Access at Appeals Stage The immigration and asylum specification is unique in setting a minimum success requirement on appeals, at forty percent. To put this in context, around a quarter of appeals to the Tribunal are successful. More importantly, however, the outcome on appeal is at best a weak indicator of the quality of work done on the appeal, as a number of interviewees pointed out, since success depends on many factors. In particular, Genn and Genn found that in immigration tribunal cases, the name of the judge could be the most effective predictor of success, with prospects varying by five to fifty percent, depending on the identity of the tribunal chair.23 To maintain this success rate, legal representatives are required to apply the merits test before deciding whether to proceed with an appeal. The merits test is met if the appeal has at least a fifty percent chance of success. If not, the case is merits failed and the lawyer cannot grant Controlled Legal Representation (CLR) for the case to proceed to appeal. As James and Killick pointed out, this amounts to requiring the legal representative to prejudge the case before it even reaches the Tribunal.24 It is inconceivable that criminal defence solicitors would be required to achieve a minimum forty percent not-guilty rate and to make a guess at an early stage whether the defence had at least a fifty percent chance of success, abandoning defendants if not. Likewise housing advice providers are not required to show a minimum success rate in homelessness cases. Yet the consequences of not being represented are no less severe for a person seeking asylum than for one accused of a crime or threatened with losing their home. Importantly, interviewees explained that a firm could maintain a forty percent success rate by ‘cherry picking’ easy cases and merits failing difficult ones, without providing a good quality service in any of them. Some firms appeared to routinely ‘do the easy bit’, namely the initial application, then refuse funding for the appeals stage, claim the standard fee and close the file. This risk aversion results in even good quality providers sometimes refusing CLR funding for appeals in complex cases, according to some informants.

 23

Hazel Genn and Yvette Genn. The effectiveness of representation at tribunals: report to the Lord Chancellor (Lord Chancellor's Department 1989). 24 Deborah James and Evan Killick, ‘Empathy and expertise: Case workers and immigration/asylum applicants in London.’ (2012) 37 Law & Social Inquiry 430.

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There is a process for challenging merits fail decisions: the adviser should record their reasons for merits failing on a form on which the client can give the reasons why Controlled Legal Representation should in fact be granted. An adjudicator then decides whether funding should be granted. A number of problems arise in practice. First, interviewees said that clients do not always understand that they have a right to challenge the merits fail decision. Secondly, the client has only fourteen days in which to appeal to the Tribunal against a Home Office refusal of asylum. At best, this is a very limited time for a client to obtain advice and challenge the decision. In practice, the Tribunal will usually accept an out of time appeal, given the overwhelming importance of the decision in asylum cases, but this is not indefinite, nor do all would-be appellants realise that they can ask for an extension of time. Interviewees also said that the merits fail decision is often made late, close to the appeal deadline, leaving the client without representation either as the deadline or the appeal itself approaches. If they have lost representation by the time the appeal is scheduled, the Tribunal may refuse to adjourn for them to find a new representative25 or the client may feel they cannot go to court unrepresented and simply not attend. Thirdly, it is very difficult for clients to challenge a merits refusal without legal assistance. Although the original adviser may help them complete the form, realistically the adviser who does not believe the claim has merit is not likely to be a significant help. Obtaining a second opinion was said to be difficult as ‘a lot of firms don’t want to touch them’ because at this stage the work is unfunded. In fact, there is evidence that merits fail decisions are frequently wrong. The Asylum Appellate Project run by the (now closed) Devon Law Centre reviewed and challenged other advisers’ merits fail decisions. The project found that 79 percent were granted further legal aid as a result.26 However, there is no monitoring or accountability for wrong merits fail decisions and the Legal Aid Agency does not take any steps against firms ‘routinely failing’ clients at this stage.27 Merits failing was said to be a particular problem in children’s cases – though in fact children should not be subject to the merits test. A child who is refused asylum will nevertheless be given leave to remain until they are seventeen-and-a-half years old, unless there are satisfactory

 25 This is all the more likely given that the Tribunal itself has performance targets around concluding certain percentages of its case load within prescribed time periods. 26 Asylum Appellate Project, Second Year Report (Devon Law Centre 2009). 27 Key informant interviews.

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reception arrangements in the country of origin. Interviewees in this research argued that some advisers avoid appealing the asylum refusal on the child’s behalf, advising them to accept the temporary leave.28 This removes any risk to the firm’s forty percent success rate but denies the child the (potentially very significant) benefit of having an asylum appeal while still a child.

Access in Special Cases The foregoing discussion relates to asylum cases in general. Yet even within the specialist area of asylum law, there are niches of further specialisation and difficulty. Children, trafficking and women’s cases were cited in the research as particular areas of concern. Interviewees said that child specific forms of persecution are often not recognised either by representatives or by the Home Office, leading to their cases being badly put forward or being failed on merits grounds. Interviewees also believed that particular skills are required for representing children, to help them to explain their experiences properly. There is no requirement for any specialist training before representing children, other than that the contract specifies that caseworkers with conduct of children’s cases must be accredited by either the Law Society or the Office of the Immigration Commissioner to at least level two (out of three). Children’s cases are funded differently from adults’, being paid at hourly rates up to a ceiling of £800, after which an extension can be applied for. This is described as a cumbersome application which may take some hours, rather than the six or twelve minutes (depending on the stage the case has reached) which can be billed for doing the application. It was said that many firms simply avoid spending longer on a case than is paid under that initial ceiling, just as they avoid going over the standard fee for adult asylum cases. The hourly rates payment has the (intended) effect of allowing representatives to spend more time on children’s cases, but also makes children’s cases more desirable to representatives who may not have the expertise or skill to do them well. This led some of the key informants to argue that additional accreditation, benchmarking or peer review should apply to children’s

 28

Two interviewees made a point about a ‘culture of disbelief’ in legal services. This is often raised in relation to the Home Office routinely disbelieving asylum applicants (n 1) and local authorities routinely assessing children as older than they say they are. But in these interviews it was also mentioned as a criticism of some representatives, who assume certain nationalities have ‘come here for school’ or treat all claims from a particular country as generic.

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cases or alternatively that representation of children should be reserved to those on a specialist panel. The potential disadvantage of that is reduced access to advice, if no specialist adviser is available within a reasonable travelling distance of the child’s home. One adviser commented that their organisation can only take on five per cent of its cases from outside its procurement area and, in any case, it is not good for clients to have a long journey to see them, so that the geographical reach of specialists is limited. Similar concerns arose for women, in that some representatives were thought to fail to recognise women’s situations as potential asylum claims. In some cases, this involves a woman who is dependent on her husband or other male relative’s claim, but may in fact have a stronger claim for asylum in her own right. An example is where the entire family experienced discrimination below the threshold of persecution, because of their ethnic group or religion, but the woman experienced sexual violence amounting to persecution, which she did not reveal to her husband out of fear or shame. The charity Asylum Aid was identified by several informants as particularly expert in female-specific persecution but this required interviewing the family members separately and being alert to matters which might found a claim for the woman in her own right. If this did not take the case into the escape fee, it could mean several hours of unpaid work. Specialist advisers were thought to be particularly important for victims of trafficking. One interviewee from an NGO noted the high number of deportation cases (individual being forcibly removed from the UK as a result of a criminal offence) where there were indicators of trafficking which had not been identified either by the Home Office or representatives. Trafficking frequently intersects with both crime and immigration issues, yet many representatives (and indeed immigration judges) are unaware of potential indicators of trafficking.29 One lawyer noted that, even once a potential trafficking issue is identified, experience in trafficking law is essential to run the case properly, including obtaining the right evidence and making tactical decisions such as whether (and when) to claim asylum or go through the National Referral Mechanism. Since a potential victim of trafficking is more difficult to identify than a child, it may be that a specialist advisor panel or accreditation is not sufficient to ensure trafficking victims receive the right advice. Instead, that knowledge is needed across the board so that indicators of trafficking are recognised. Statelessness is another area where there is a risk of



29 Such as having been arrested for cannabis cultivation, working in a nail salon or selling pirate DVDs, being in debt for the journey.

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potential cases not being identified: the more so since legal aid is not available for applications based on statelessness. Many of the organisations which interviewees identified as specialist and as providing high quality representation on a particular issue are charities or not-for-profits. These included Law Centres and charities running specific projects with funding from Comic Relief, the National Lottery, charitable trusts or other sources in addition to legal aid income. This tension between access and specialisation, or quality in niche areas, is not easy to resolve within the structure of the current legal aid contract. Yet access to a generalist adviser without the niche expertise may not, in some cases, amount to any real access at all.

Access to Quality Advice in Detention The issues of access discussed above are acute and challenging for those seeking asylum while at liberty in the community. On the face of it, for those in immigration detention (though not in mainstream prisons), access may be easier, since all Immigration Removal Centres (IRCs) have provision for legal advice. Only firms with a detention schedule on their contract can provide services to people in IRCs – referred to as ‘exclusive contracting’. There are between two and six providers contracted to provide services in each of the eight IRCs. Within the exclusive contracts for Yarls Wood and Harmondsworth, only some firms may provide Duty Detention Advice surgeries, while a larger number may provide Detained Asylum Casework advice (a sub-system of the asylum process). Other firms may only provide legal aid services to detainees in limited circumstances.30 Detained clients therefore have even less choice than those who are not detained. This is all the more acute where the detainee already has removal directions or is in a fast track process (currently suspended following a court judgment), because the exclusively contracted providers attend the IRCs on a rota, so those without time to wait for a particular representative have no choice at all. One interviewee said that ‘no one wants to go to’ Firm A, but there is a queue of ten weeks for the others. Another said,

 30

If the client is a close family member of an existing client in the UK and knowledge of the family circumstances is material to the detained client’s case. The representative can also continue acting for a client who becomes detained but only if the representative has already done at least five hours’ work in the UK excluding travelling and waiting. In those circumstances the representative should continue acting until the next stage and then consider what is in the client’s best interests.

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‘Detainees want to see [Firm B]. They have a reputation of being a lot better than the other two. Word goes round. Slots get booked up weeks in advance.’ This means for those who need advice urgently, there is no chance of getting it from the better provider: even where detainees have the information to make a choice based on reputation, they do not have that choice in practice. The same quotations raise a serious point about the overall quality of advice in detention. Five non-provider interviewees with particular expertise in detention issues said that quality of legal advice in detention was poor, citing ‘a rise in people in detention who don’t actually know if they are represented or not’ having met an adviser in a surgery but being unsure whether or not their case has been taken on. This was thought to happen partly because firms had cut back communication to cope with the amount of casework and limit costs, which was all the more problematic for detained clients. Firm A was said to ‘figure in so many complaints… as people who provide bad or no service.’ The exclusivity of the contract itself appears to be the root of the problem: one non-provider explained that the provider might see ten people per day on two to four days a week. Although they should take on any case which meets the merits criteria, the interviewee pointed out that there is an incentive ‘not to see merit’ particularly if several of the detainees have removal directions for a pending charter flight within the next few days.31 Another interviewee also noted the ‘variable way’ in which the detention contract firms apply the merits criteria. If an individual is denied legal aid on the merits of the case they either go without representation or pay privately. This is illustrated by a short sample of the Tribunal daily case lists.32 There are Tribunal hearing centres at two IRCs, Harmondsworth and Yarls Wood. In a ten day sample, 91 bail applications were heard at Yarls Wood, which mainly detains women. In 74 percent of these cases, the representative was a private-only firm (ie it had no legal aid contract). Only 22 percent had representatives with a legal aid contract and four percent were unrepresented. At Harmondsworth there was only one bail application, since these are normally heard by video link in another hearing centre. In the same period there were 49 asylum appeals at Harmondsworth, of which ten percent had no representative at all, while 45 percent had representatives which hold legal aid contracts and the same

 31

These are flights on which a large number of individuals are to be removed en masse to particular countries, such as Afghanistan, Iraq, Ghana and Nigeria, instead of each being removed separately on scheduled flights. 32 Sampling was over ten consecutive working days in May 2016.

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percentage had private representatives. Of course it is not clear what percentage chose private representatives because of a perception that paying buys better quality. It is also a brief snapshot, although other research shows a high rate of unrepresented appellants in asylum appeals.33 But the figure for private-only representation in Yarls Wood bail applications is significantly higher than that for other hearing centres’ bail applications over the same period and, together with the asylum appeals data for Harmondsworth, raises a real doubt whether the exclusive contracting arrangements are providing adequate access to legal advice in detention. Because of this high level of demand and the Legal Aid Agency’s intention to have only a small number of exclusive contractors, interviewees explained that the contracts usually go to large firms which appear to have the capacity to deal with them. One interviewee said that, although all firms are subject to the same quality control and should provide a similar level of service, in practice there is great variation not only between different firms but ‘within firms, especially the larger ones’. Other interviewees made similar points about greater variability within the larger firms, perhaps raising a question about consistency of supervision or training within larger organisations. Cases taken on through Detention Advice Surgeries are paid at hourly rates. On the face of it, this might be expected to improve quality, but in addition to the poor communication outlined above, detainees are likely to have limited time with the adviser, often seeing them only once and possibly for a short time: ‘It could be only half an hour to tell their story and get some advice.’ A former detention provider explained that, ‘I would get up to the credit limit on a trip – you can only charge five hours on a trip and I often found it difficult to get my extension request in on time if I was out of the office for the whole day.’ The limited time is particularly problematic where there are potential trafficking indicators or a history of torture, which may not be disclosed or recognised within such a short appointment. Interviewees explained that, once a file is opened, even if the provider sees no merit in the substantive case, they should keep the file open in case a bail application is needed. While one provider has a file open, the client cannot go to another provider who might be more specialised. The only exception is judicial review, so support organisations are able to refer clients to other providers where a public law issue arises, if they can find an expert provider with

 33

Nick Gill, Rebecca Rotter, Andrew Burridge, Melanie Griffiths and Jennifer Allsopp, ‘Inconsistency in asylum appeal adjudication’ (2015) 50 Forced Migration Review 52.

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capacity to come and take instructions from the would-be client in the detention centre. Judicial review is also available against removal directions, but, as one interviewee pointed out, this means waiting until the case becomes an emergency before any work can be done on it. Emergency work and particularly judicial review is likely to be more expensive to provide, so that aspect of the system may operate as a cost driver. The issues affecting all asylum applicants are exacerbated for those in detention: an interviewee explained that, despite an induction into the IRC, many detainees do not understand their rights. Certain websites are blocked in some IRCs, including that of Bail for Immigration Detainees (BID) and there are limited facilities for internet access in any event. On top of this, illiteracy and lack of access to interpreters were raised as particular challenges for detainees seeking information. The adviser cannot bring interpreters for all languages needed at an advice surgery, so telephone interpreters are the main channel of communication, with other detainees sometimes brought in to help. Detainees can also be moved around the IRC estate with very little warning, meaning they might be transferred to another centre in England or Scotland despite having legal representation making it practically impossible for a lawyer to continue working on the case. Obtaining legal advice on asylum was said to be even more problematic for those in prisons. A person might be in prison for an offence relating to unlawfully entering the UK, illegal working or conduct relating to being trafficked, as well as for ‘ordinary’ criminal offences but nevertheless have a reason to fear return to the country of origin. Although advice in prisons is not constrained by the exclusive contract, it is extremely hard for those in prison to access any asylum advice at all.

Discussion and Conclusion The preceding two sections were intended to show how, in practical terms, the various forces operating on asylum advice providers interact to create real difficulties in access and quality for those in need of publicly funded asylum legal services, even though they are ostensibly available to all asylum seekers. It therefore becomes difficult for people to access protected human rights even where they are justiciable. The fundamental premise of the Carter reforms and the marketised legal aid system was that market forces would control quality and cost and ensure access. Yet, as has been shown above, the ‘consumer’ of asylum legal services may not have any information about the lawyer’s reputation

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for quality on which to base their selection of a provider. They may not in fact have a range of providers to choose from, even if they know which providers are the best, since their preferred provider may have no capacity in the short term or may have run out of matter starts for the year. Closures of firms and organisations, particularly Refugee and Migrant Justice (RMJ) and Immigration Advisory Service (IAS) have left gaps in provision in some areas, while others might have only one or two providers. Interviewees highlighted the interaction between this limited choice and the dispersal system, so that people seeking asylum might be placed in an area where representation choices are very limited. Aside from the ability to choose a good representative at the outset, those seeking asylum are effectively deprived of the opportunity to change when the service is poor. A matter start is unique to the provider who starts it, so a new provider has to treat a case as a new matter.34 The earlier provider has to confirm the reasons why the retainer was terminated and send a copy of the file. The new provider cannot do any work until they have considered the contents of the file (therefore this consideration is at the new provider’s risk), unless absolutely necessary to protect the client’s position. Then the new provider has to justify any work carried out under CLR. These provisions expressly raise the threshold for justification to change provider: ‘dissatisfaction with the service provided by or a breakdown in relationship with a previous provider’ is not normally sufficient. The new provider also has to show that the work does not duplicate that done by a previous provider. In effect this means a client who wants to change provider has to show actual misconduct of the case by the first provider, usually through the formal complaints procedure, as well as finding another adviser willing and able to open a new matter start on their case. Interviewees explained however that the vast majority of clients are unwilling to make complaints because they are afraid it will turn the existing adviser against them and leave them even worse off if they have to remain with that adviser. The complaints procedure is time consuming and difficult since clients have to complain to the firm itself first and give eight weeks for a response before they can escalate the complaint to the Legal Ombudsman. Since the law and procedures are complicated, clients generally need help to complain effectively. Specialist legal expertise is needed, yet no funding is available for advisers to help make complaints against other advisers. The client care letter must set out the complaints



34 Paragraph 3.29 of the Standard Civil Contract with the Legal Aid Agency, which sets out detailed terms and conditions binding all civil legal aid providers.

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procedure but, even if the client is able to understand it, the procedure itself may be too intimidating or too slow for most asylum applicants. Therefore, given a high enough level of overall demand, market forces will never deprive poor quality advisers of business. Nor will they ensure that the good quality advisers remain in business. It is important to recognise that, as one interviewee put it, asylum work is practised by ‘some of the most brilliant lawyers in the business’. But this research suggests that to maintain this brilliance, lawyers have to overcome multiple obstacles to good quality work and incentives to poor quality work in the current system. Good quality advice in the current system inherently means ‘going above and beyond the time you are paid for’. All of the best practice involves time and tenacity in fighting a client’s case – ‘fighting’ rather than merely doing. One said, ‘You can tell the good firms by the number of escape fee claims they put in.’ Good client care was described as taking time to listen to the client, build their trust and confidence, take clear instructions and explain the process to them clearly, but this takes time far beyond what is paid under the standard fee and may be difficult to justify for the escape fee. Therefore a number of interviewees pointed out that this was unsustainable at a personal level for advisers, who ‘wake up at four in the morning with [their] heart pounding’ and work an unreasonable number of hours. For those running businesses in this area of law, rising overheads and falling fee income create intense pressure to lower quality standards. This is not entirely a one-way conclusion. Providers operating only in private services were seen as ‘pretty well unregulated’ in spite of the role of formal regulators, since they need not pass any specialist training or provide any set level of supervision and are not subject to any auditing. This underlines the importance of the Legal Aid Agency’s role in setting standards, albeit that many of these standards were argued to be unrelated to the actual quality of the work.35 The research looked at privately paid representation as well as legal aid, concluding that the quality of the best and the worst of the case files reviewed was roughly similar in both categories. But there was far less ‘in-between’ in the privately funded category: quality was either very good or very poor. The combined effect of these conclusions is that there has been a systematic downgrading of asylum seekers’ access to justice and asylum lawyers’ financial viability. In particular, the fee regime incentivises doing minimal work on a case and strongly discourages evidence gathering or



35 Discussion of the targets and auditing regime and its consequences would fill at least another chapter.

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appealing in complex cases. It deforms the market by capping the maximum number of cases a firm can take, removing choice and preventing the ousting of poor quality representatives. One key question, therefore, is how some organisations manage to continue providing excellent quality legal services; another is why the Legal Aid Agency persists in contracting with those which do not. One effect of poor representation, together with poor quality administration and decision making by the Home Office, is that a significant proportion of people are (wrongly) refused asylum, contributing to a view that large numbers of people claim asylum falsely. This in turn is used to justify harsh policies directed against people seeking asylum and migrants more generally, including further limits on their access to justice, with negative implications for the future of refugees’ and migrants’ rights.

CHAPTER EIGHT BROADENING THE RIGHTS OF STAKEHOLDERS THROUGH A RESTORATIVE JUSTICE APPROACH TO CRIME: AN IRISH PERSPECTIVE DARREN MCSTRAVICK Introduction The notion of human rights protection within the conventional criminal justice system usually concentrates on procedural rights for stakeholders in and around the criminal trial itself. While such rights are fundamental in safeguarding an accused’s freedoms, including the right to silence and the presumption of innocence, it should be further recognised that a broadening of the rights discourse is required when attempting to solve criminal conflicts. These additional rights, which I have classified as ‘restorative rights’, were identified as part of a four year research study of two Irish based restorative reparation panel schemes managing adult offenders. Ethical clearance was initially granted for observations of the panel model, as part of a doctoral thesis, in 2012 by Dublin City University. After meeting with panel providers and explaining the research plans in detail, access was then agreed for the author alone. Verbal consent from participating offenders was obtained by panel facilitators before observations commenced. Shorthand notes were allowed to be compiled within case meetings and were then written up in full after each case meeting.1

 1

This research was carried out as part of a PhD thesis from the School of Law and Government at Dublin City University. The thesis was entitled ‘The Irish Restorative Reparation Panel and the Search for Community. Idealised Rhetoric or Practical Reality?’ See also Darren McStravick, ‘Five Perspectives on Punishment’ (2013) 13(3) Contemporary Issues in Law 193.

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The research methodology consisted of 40 reparation case observation studies of both Irish reparation panel schemes and a small collection of semi-structured interviews with key stakeholders within the reparation process including participating panel members from the Irish police force (An Garda Síochána) and the Irish Probation Service, as well as community representative volunteers, reparation caseworkers and reparation scheme managers. Throughout the series of interviews and observations a broadening of criminal justice based rights was identified through inclusive dialogue, equal participation in case deliberations, a burgeoning relationship between criminal justice professional and community representative actors and an added emphasis on restorative principles. These principles included an individualised social care ethos which prioritised welfare concerns and rehabilitative and re-integrative options for participating offenders. Such an approach, allied with an emphasis on full accountability and reparation for any harm caused by the offence, can prove an example for other restorative models moving forward.

Irish Restorative Justice Practice and the Offender Reparation Model Restorative justice principles have played a role within Irish justice systems for centuries. Within early Celtic law practice there were elements of social restoration, while the native Brehon law also engaged with restorative principles such as community ownership, reparation and compensation.2 Within modern day practice restorative principles have been used for diverting juvenile offenders since 1963 under the Juvenile Liaison Officer Scheme run by the Irish police force - An Garda Siochana - and more recently as part of the Garda Diversion Programme under Part 4 of the Children Act 2001. However, it was not until recommendations from the National Crime Forum which called for ‘a fundamental change’ within the criminal justice system that thoughts started to turn towards the possibility of diverting adult offenders from prison by way of restorative principles and practices.3

 2

Liam Leonard and Paula Kenny, ‘Measuring the Effectiveness of Restorative Justice Practices in the Republic of Ireland Through a Meta- Analysis of Functionalist Exchange’ (2011) 91(1) The Prison Journal 57. 3 National Crime Forum, National Crime Forum Report (Institute of Public Administration, 1998) 142.

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From 1999 onwards, finance became available for two pilot projects which would manage adult offending using restorative approaches combining reparation panels and victim/offender mediation, as well as active community involvement within both schemes. These reparation panels are today holding the front line of adult restorative justice practice in this jurisdiction. They remain on a non-statutory footing and continue to successfully manage a growing number of adult offenders and range of offences. The schemes are Restorative Justice Services (RJS), what I will call the city based model – mostly managing referrals in and around the inner-city Dublin area, and Restorative Justice in the Community (RJC), which I will call the rural model. This particular model is based in Nenagh, County Tipperary and manages court referrals in County Offaly, County Tipperary and surrounding areas. Both schemes employ the offender reparation panel model as a means of increasing accountability for offenders and securing financial and symbolic reparation for victims. All participating offenders must admit guilt, or have been found guilty in court. All reparation cases are court referred and both schemes are financed by the Probation Service. Both schemes involve the participating offender sitting around a table with criminal justice professionals, including a Garda representative and probation officer and community representative stakeholders including a facilitator, case worker and community members. The community representative case worker is not a legal professional but is trained in restorative principles. During the mediation, the facts of the offence and reasons behind the offending behaviour are explored. Panel members attempt to highlight the harm that has been caused and how best to repair that harm and successfully reintegrate the offender back into their respective communities. Victim participation can consist of either directly attending a panel or indirect participation by way of writing a letter to the panel explaining the effects of any harm caused. Although victim participation is low within panel practices, it should be remembered at this point that the reparation panel is of itself an offender centric restorative model which prioritises the management of those participating offenders. Other restorative models will involve victims more directly such as family group conferencing schemes and victim-offender mediation programmes. Although both Irish based reparation schemes are slightly different in panel representative make-up, the restorative aims remain the same. Crimes referred were initially traditionally low-level in nature such as public order and theft offences, although present practice has illustrated the propensity for some judges to refer crimes with a higher tariff such as serious assault and

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burglary offences. Traditionally only first-time offenders were referred to the panel model but practice has widened to include repeat offenders. Panel members, through inclusive dialogue about the personal circumstances of the offending and the facts of the crime itself, attempt to increase the participant’s awareness of the harm caused, their accountability for such harm, and how best to restrict future offending behaviour. After this stage of the discussion, a reparation contract is then drawn up and agreed by the panel members and the offender. Participants’ contracts will vary depending on the crime and individual referred, but they usually involve a written piece on how the crime has affected the offender themselves, the victim, family members, and the wider community as well as a written letter of apology. There can also be community service elements to the contract, including litter removal. A sum of reparation will also be paid by the participant and can range in monetary value depending on the participant and the seriousness of the crime being managed. A symbolic promise not to reoffend in the future is also signed. Within the city based model, the participant will return after a period of time for a second panel meeting wherein the contract terms and how they have been addressed is discussed further. Within the rural scheme, the facilitator only will meet with the participant a second time to discuss contract completion. If the panel and facilitator are satisfied, the contract is signed off and returned to the referring judge for a final decision on the relevant sanction. Sentencing options can include a suspended sentence, fine, community sentence or disposal of the case by way of Section 1(1) of the Probation of Offenders Act 1907. Under this provision, the case can be struck out of court with no conviction being recorded.

Rights Protection within the Conventional Criminal Justice Construct Within the management of conventional criminal justice conflicts, procedural human rights protections offer a fundamental bulwark to the potential for state managed abuse. Such protections are available to all directly participating stakeholders including victims and offenders. Within the written Irish Constitution, these fundamental rights are clearly defined. For example, Article 38.1 states that ‘no person shall be tried on any criminal charge save in due course of the law’ while Article 40 further outlines fundamental personal rights including Article 40.1 which states that ‘all citizens shall, as human persons, be held equal before the law’. Furthermore, the Criminal Justice (Victims of Crime) Bill, recently

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published in December 2016 in order to transpose into Irish law Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime, offers added protections within the Irish jurisdiction. These include the right to receive comprehensive information regarding the range of services open to victims and their role within the criminal justice system, information on the status of the investigation into the crime and the offender, and an individual assessment as to the possibility of special measures being employed to protect him or her from potential secondary and repeat victimisation. Fundamental due process protections for those accused of committing a crime are widespread across jurisdictions and include the right to silence and the right to legal advice and representation. Such protections are vital in ensuring that the rule of law is consistently and legitimately upheld within the criminal justice system. It can be submitted that there is a different emphasis on rights protections within more conventional justice processes than can be evidenced in restorative justice programmes. This is better understood when the contrast in values and relationships within both paradigms are explored further. The conventional justice process has at its heart the principle that an offence is primarily a violation against the state wherein focus tends to be limited to the establishment of blame and the finding of guilt. Adversarial and professional relationships take root within a normative, judge-led process which underlines ‘right rules’ and individualism and tends to encourage passiveness from participating offenders whilst also side-lining direct victims and their communities.4 It can also be said to prioritise what Morris and Young have labelled ‘legal rights’; that is, the promotion of equality and consistency of practice within criminal justice processes and a primary focus on punishment.5 Moreover, it has been argued that previous decades have seen a change in the objectives and priorities of criminal justice organisations and a reworking of management styles and practices. Sentencing has been seen to have changed from ‘a discretionary art of individualised dispositions’ to a ‘rigid and mechanical application of penalty guidelines and mandatory sentences’, while probation and parole agencies have ‘de-emphasised the social work ethos that used to dominate their work and instead present themselves as providers of inexpensive, community based punishments,

 4 Howard Zehr, ‘Retributive Justice, Restorative Justice’ in Gerry Johnstone (ed.), A Restorative Justice Reader (Willan Publishing 2003) 81. 5 Allison Morris and Warren Young, ‘Reforming Criminal Justice: The Potential of Restorative Justice’ in Heather Strang and John Braithwaite (eds), Restorative Justice: Philosophy to Practice (Ashgate Publishing 2000) 14.

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orientated towards the monitoring of offenders and the management of risk’.6 For Garland, this configuration of criminal justice aims represents ‘a new and all-pervasive managerialism’ in which ‘specific agencies and organisations, performance indicators and management measures have narrowed professional discretion and tightly regulated working practice’ with an emphasis now on the ‘cost effective management of risks and resources’.7 In addition, Shapland has viewed the concept of managerialism as one that highlights the importance of ‘efficient administration by salaried officials, managing to hit a basket of targets within tight time limits’8 while Cohen 9 and Abel 10 have both previously warned of the dangers of justice processes claiming to be community representative but which, in reality, merely serve to promote and strengthen managerial ideals.

Rights Protection within the Restorative Justice Construct The restorative justice concept has proved difficult to define. This is due to the fact that it is in an ever developing state of flux, continually changing as each different set of participants and offences open up new possibilities within the particular restorative model being engaged.11 In saying that, however, one often quoted description succinctly outlines the main aims of the restorative ideal. For Tony Marshall, it is best described as ‘a process whereby parties with a stake in a specific offence resolve collectively how to deal with the aftermath of the offence and its implications for the future’.12 In attempting to clarify the definition of restorative justice further, a number of theorists have grounded it in direct opposition to the concept of ‘retributive justice’. For example, Umbreit argues that restorative justice contrasts fundamentally with ‘retributive justice’ in that crime is recognised first and foremost as ‘an activity directed against individuals

 6

David Garland, The Culture of Control (Oxford University Press 2001) 18. ibid 19. 8 Joanna Shapland, Justice, Community and Civil Society. A Contested Terrain. (Willan Publishing 2008) 6. 9 Stanley Cohen, Visions of Social Control (Polity Press 1985). 10 Richard Abel, The Politics of Informal Justice Volume 1: The American Experience (Academic Press 1982). 11 Joanna Shapland et al. ‘Situating Restorative Justice within Criminal Justice’ (2006) 10(4) Theoretical Criminology 505. 12 Tony F Marshall, ‘The Evolution of Restorative Justice in Britain’ (1996) 4(4) European Journal on Criminal Policy and Research 21, 37. 7

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rather than as against the state’, and that ‘whereas retributive justice focuses on punishment, the restorative paradigm emphasizes accountability, engagement of the parties most affected by the crime in responding to its impact, and repair of the emotional and physical harm caused, to the greatest extent possible’.13 There is a need to challenge the fundamental principles of the established criminal justice system with a fresh set of ideas.14 Zehr addresses this challenge by viewing the criminal justice dynamic through a set of diametrically opposed lens.15 The ‘restorative lens’ focuses on problem solving, normative dialogue, offender accountability and integration. Also included is the acknowledgment of a victim’s voice and suffering and the repair of social injury. The ‘retributive lens’, on the other hand, discourages accountability and forgiveness and assumes a state monopoly of criminal law enforcement’.16 Zehr has further clarified the restorative justice concept as a ‘new paradigm’ within criminal justice policy and procedure.17 Within this new paradigm, crime can be categorised as the violation of a collection of stakeholder relationships rather than an individualised violation of the state and is primarily concerned with repairing those relationships using mediation and inclusivity rather than fixating on blame, guilt, rules and process. The new paradigm also understands that the context surrounding a criminal offence can be multi-layered and include moral, social and economic factors rather than the conventional definition of criminal behaviour as the breaking of a selection of legal rules. In this regard, Braithwaite believes that restorative values should always play a role within restorative processes, whatever the model. These values include elements of non-domination, empowerment, accountability and respect for fundamental human rights18 as well as inclusive dialogue, negotiation and overall agreement amongst all stakeholders within the specific process.19 For Braithwaite, retributive values should not be

 13

Mark Umbreit, The Handbook of Victim Offender Mediation: An Essential Guide to Practice and Research (Jossey-Bass Publishing 2001) 2. 14 Howard Zehr, Changing lenses: A new focus for crime and justice (Herald Press 1990). 15 ibid. 16 ibid 211 17 Zehr, ‘Retributive Justice, Restorative Justice’ (n 4) 81. 18 John Braithwaite, ‘Principles of Restorative Justice’ in Andrew von Hirsch, Julian V. Roberts, Anthony E. Bottoms, Kent Roach and Mara Schiff (eds) Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms? (Hart Publishing 2003). 19 Andrew Ashworth, ‘Responsibilities, Rights and Restorative Justice’ (2002) 42(3) British Journal of Criminology 578.

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included within a restorative framework as restorative justice should amount to a ‘values shift’ from retributive and punitive emotions which have the potential to destroy relationships.20 This notion of crime as primarily a violation of human relationships rather than simply a violation of state imposed laws has been taken forward further. For example, Schluter believes that we should be ‘thinking relationally about justice’; that crime represents a relational breakdown between offender, victim, family members and the general community and it is only by strengthening these relational bonds that we may begin to successfully understand the initial causes of the criminal behaviour as well as how best to reintegrate and rehabilitate the stakeholders affected.21 Furthermore, Claassen argues that state imposed rules and laws only exist in order to primarily safeguard fairness and safety within these same relationships.22 At this point it might be argued that these descriptions signify an overly simplistic view of the retributive/restorative alleged conflict. Indeed, both Daly and Duff argue that both forms and their respective principles can be interchangeable as both regularly merge within various practices. For Daly, retributive and restorative justice principles should be renamed ‘old’ and ‘new’ justice. Within this format, ‘old’ justice could refer to a legal actor led process with little or no interaction with victims and offenders with its emphasis on punishment whereas ‘new’ justice could be all inclusive with multiple aims including, but not reliant on, punishment. Both forms should be exchangeable depending on the model being employed. In her opinion it is overly simplistic to argue that both ideals are polar opposite in the principles they espouse.23 Similarly, Duff notes that the idea of restoration for offenders and victims ‘requires’ a relationship with retributive punishment; for example, the sincerity of an offender’s apology can be strengthened further by financial reparation or

 20

John Braithwaite, ‘Setting Standards for Restorative Justice’ (2002) 42(3) British Journal of Criminology 563. 21 Michael Schluter, ‘What is Relational Justice?’ in A Restorative Justice Reader (n 4) 309. 22 Ron Claassen, ‘Restorative Justice – Fundamental Principles’ The National Commission for the Protection of Child Rights (NCPCR) (The UN Alliance of NGO’s Working Party on Restorative Justice 1996). 23 Kathleen Daly, ‘Restorative Justice: The Real Story’ (2002) 4(1) Punishment and Society 4.

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community service in situations where a serious crime has been committed.24

The Irish Reparation Model and Restorative Rights: Challenging the Conventional Norms Within the Irish reparation panel restorative model, there is indeed a relationship between both retributive and restorative ideals. Each participant is referred to the reparation panel model by a judge as part of a formal court process after an arrest and subsequent charge by police officers. Their conventional procedural rights are protected after arrest and charge and within the initial court process where they are legally represented by criminal justice professionals. The reparation process is at all times under the supervision of the court and referring judge who remains the final arbiter in the disposal of each particular case. Furthermore, the panels are as yet not embedded within legislation and are reliant on case referrals from the court system and funding from the Irish Probation Service. They are also reliant on criminal justice professional expertise and participation alongside their community representative colleagues.25 However personal observations of reparation panel case management have reinforced this author’s view that restorative principles are coming to the fore within panel practices despite linkages with the conventional justice system. These principles have included inclusive dialogue and mediation, relational justice issues, social and welfare care concerns, reparation and reintegration priorities and active involvement from community based actors and services. These restorative principles within panel discussions and deliberations have, in turn, resulted in the strengthening of participant rights, specifically what I have termed ‘restorative rights’. A criminal justice system should broaden its collective reach to include a wider set of rights protections than simply those related to due process rights for the offender and for the victim, the right to be fully informed of developments, and to have the opportunity to be present and heard in court. Indeed, while human rights protection must be a part of

 24 Anthony Duff, ‘Restorative Punishment and Punitive Restoration’ in Lode Walgrave (ed) Restorative Justice and the Law (Willan Publishing 2002) 82. 25 See The Probation Service, Report on Pilot Expansion of Probation Funded Adult Restorative Justice Projects (The Probation Service July 2012). For further analysis, see The Department of Justice, Equality and Law Reform, National Commission on Restorative Justice Final Report (Department of Justice, Equality and Law Reform 2009).

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both criminal justice and restorative justice practice generally the criminal justice system’s emphasis on certain ‘legal’ rights, including due process protections, can be viewed as being overly narrow in construction.26 In addition, the conventional method of stigmatisation through continuing criminal recording of past behaviours, especially in the case of minor offending, serves to limit the potential for full offender reintegration and rehabilitation. Contrast this with the diversion opportunities opened up to participating offenders after successful completion of their reparation contract and the community services available in the management of various dependency problems as part of those contract terms. This is all the more important as Ireland was, up to the passing into legislation of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016, the only EU country not to have a second chance legislative means of overcoming barriers to travel, education and career choices that can follow a criminal conviction and an ‘offender’ label.27 Such restrictions can ultimately perpetuate the cycle of offending whereas the reparation panel diversionary option can help to delimit that cycle. The restorative rights in evidence within reparation panel practices reinforce the restorative values highlighted by Braithwaite, Zehr and others. These rights complement the conventional procedural safeguards present from the arrest of the suspect to case disposal. However, these restorative rights help to broaden further the re-integrative, rehabilitative and restorative opportunities for those stakeholders directly and indirectly affected by the criminal behaviour. As detailed further within the following sections, participating offenders are treated as a ‘person’ first and an ‘offender’ second. Their social welfare needs, relational problems and dependency issues are discussed as part of an inclusive mediation. This in no way takes priority over their offending behaviour and need for accountability, which is addressed fully as part of the restorative dialogue and reparation contract tasks. Direct victims, certainly in at least one of the reparation schemes, are fully informed of the reparation process and asked if they are willing to either directly or indirectly participate in that process. The very notion of what constitutes a ‘crime’ itself is challenged within reparation deliberations wherein many of the participants have addiction and mental health problems, economic and welfare concerns, and have been the victims of crime themselves in the past. The strengthening of

 26 Ann Skelton and Cheryl Frank, ‘How does Restorative Justice address Human Rights and Due Process Issues?’ in Howard Zehr and Bob Toews (eds) Critical Issues in Restorative Justice (Criminal Justice Press 2004) 203. 27 Howard Becker, Outsiders: Studies in the Sociology of Deviance (Free Press 1963).

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restorative rights as part of reparation procedure can be illustrated in two specific ways.28

Restorative Rights and the ‘Care and Concern’ Approach to Offending During those panel discourses observed, it soon became obvious that what was emerging was a particular emphasis on the welfare needs and social care concerns of referred participants. This was in parallel with discussions on the facts of the crime itself, the effects of the harm caused, and the need for accountability. This welfare ethos was present within the introductory stage of panel case proceedings, as well as within the subsequent reparative contract agreement terms drawn up and agreed at the conclusion of case deliberations. This ethos mirrors Zehr’s idea that restorative justice should treat offending behaviour with a broad brush and include social and economic considerations,29 and was illustrated in a number of ways. For example at the beginning of panel meetings, and before a discussion surrounding the actual offending behaviour and its consequences, the facilitator of the RJC scheme and the chairpersons from the RJS programme would ask the offender a number of questions. This initial pre-panel discussion would generally involve questions about the offender’s family, friends, hobbies and work experience. Such discussions tended to have the effect of both relaxing the participant and helping them to settle in slowly to the reparation process. Indeed, many of the participants appeared very nervous when first entering the panel room. However, through various body language examples such as smiling with the facilitator, and looking at the panel members’ faces instead of looking down at the floor during this initial stage of panel proceedings, there appeared to be a more relaxed attitude as a result of this more informal line of questioning. This, in turn, can lead to participants being more receptive to panel aims and fully engaging with the process generally. Within this phase of the panel discussion, the participant was being treated as an individual first and foremost and as an offender second. They were not being, initially in any case, labelled or tagged by the crime for which they had been referred but were being recognised through personal characteristics such as their background, career, relationships and family status. Participants would be asked questions such as where they lived, if

 28

Such principles were gleaned from panel observations and interviews with the panel participants. All transcripts are on file with the author. 29 Zehr (n 14).

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they were married and had children, how many brothers and sisters they had, if they had a career and how they filled in their time if they were not working. Those chairpersons within the RJS model who were interviewed as part of this research study noted that this welfare based introductory discourse was not something that could be strictly identified within panel policy but was an approach they preferred in order to personalise the individual appearing before the panel. Thus, interestingly, the policy did appear to have arrived on an ad hoc basis rather than by way of any discernible programme aim. This welfare ethos could be further illustrated as part of stage two of panel proceedings in which the actual criminal behaviour itself and reparation contract terms were discussed. Many of the cases involved alcohol and drug dependency issues. These issues would be discussed in some detail by the panellists present. Questions were asked such as ‘why do you drink…do you think you have a drink problem…what does your family think of your dependency issues…have you tried to stop taking drugs…are you aware that you can get help for these problems?’ The panellists therefore, as well as debating the crime and the respective harm caused, elaborated on certain mental health and dependency concerns in detail. Helpful advice was handed out as to the best way of managing such dependency problems and, within contract terms, meetings would be arranged with community based service suppliers. On many occasions, these issues were a direct factor in the offending behaviour. What further serves to embellish this notion of care and concern is the fact that many of these discussions within the panel process took place outside of the drawing up of reparation contract terms addressing the specific crime and its consequences. Some of those cases observed centred on the mental well-being of participants generally, with many participants suffering from self-esteem problems due to a broken relationship, financial worries or a lost job. Panellists would suggest methods of addressing these problems and organise meetings with local community centres, mental health clinics and also community based advice centres which could help with managing financial and career concerns. This advice, encouragement and referral policy would occur both as part of the reparation contract agreement terms themselves and, perhaps more importantly, within general discussions surrounding the physical and mental well-being of the participant outside of the actual offence being managed. Such examples of the welfare approach within reparative contract agreements can enable participating offenders to engage with rehabilitative services and groups and learn how to manage finances, career plans and dependency issues. However, it should be underlined that panel

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agreements and discourses are not solely concerned with this welfare element. Contract terms will include letters of apology to direct victims as well as a wide range of indirect victims, community service and financial reparation. Such acts, as has been remarked during follow up second panel meetings, have proved to be difficult and time consuming for the participants involved. Even then, after a successfully completed panel agreement, there is no guarantee as to how a presiding judge will dispose of the case. Within the evidence from the series of personal observations, it seems that this welfare combined with accountability dual approach worked successfully within the dynamics of the panel discussion itself. The welfare approach underlined in panel discourses was not only confined to those cases involving first time offenders and relatively minor crimes, cases where arguably it is easier to employ such principles. Public order offences and crimes such as low level shoplifts have no direct victim and any ‘harm’ can be restricted to the emotional harm caused to the offender themselves and their respective families. However, as part of case management of more serious crimes, the welfare ethos continued to play an important role within both preliminary panel discussions and subsequent contract agreements. An example of one such ‘hard case’ involved a 23 year old offender who had pleaded guilty to the criminal damage and attempted theft of a car. He had a remarkable offending history of forty six previous convictions. The introductory background questioning had uncovered major alcohol dependency issues. These were said to have been partly a result of an incident several years ago in which the participant’s friend had been a passenger and been killed in a car accident in which he was driving. The participant had served eighteen months in prison as a result of the crash and subsequent death. However, the panel discovered that this was the first time in two years that there had been a repeat of the offending behaviour. The offender explained to the panel that he needed help with his particular addiction, which included drug use on occasion. Thus, the contract agreement was tailored towards alcohol and drug treatment and counselling courses within the local community. This case illustrated how locally based resources are attempting to reintegrate and rehabilitate offenders and is a further example of task sharing between professional justice institutions and local community based assets. Lay member activism was further illustrated when the caseworker herself added the requirement of a written piece within the contract agreement terms of a ‘plan for the future’ in order to help manage the feelings of restlessness and boredom that the offender had admitted existed within their lives generally as part of preliminary case discourses.

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Such an approach then, of informal discussion of background, family relationships and interests enabled this participant to noticeably relax and open up to the panellists about his past convictions and dependencies and the reasons behind these. Indeed, within panel observations body language and certain ‘rituals’ proved good indicators of offender mind sets. Many participants were visibly nervous and agitated before the panel began and within the early stages of discussions. However, as the process continued some of the offenders noticeably relaxed, their voices became stronger and sentences longer and at the end of the process they smiled, shook hands with the panellists and thanked them. Rituals such as these have been previously observed by Rossner, within restorative conferences between significant others and serious offenders, with participants laughing and crying together, sitting up straight after initially slouching and shaking hands and hugging.30 It is argued that such behaviour within a restorative meeting are vivid examples of a shared morality, solidarity and an emotionally energetic experience.31 As part of this particular case the panellists, through careful and gentle probing into the participant’s past life history, laid the groundwork for a discussion of crime itself, the reasons why such behaviour occurred in the past and continued to occur, and an evaluation of how best to limit such criminal tendencies. Indeed, the offender felt comfortable enough to tell the panel that he had also used drugs in the past, a fact that was not disclosed within the case sheet notes. Thus, this ‘hard case’ was a good illustration of how panellists addressed the ‘damaged’ past of the participant as well as his future rehabilitative needs and is a good example of how panels are attempting to address serious offences and participants with multiple convictions as well as minor offending and offenders entering the justice system for the first time. It can be noted at this point that such a positioning of the welfare approach within the ‘punishment’ stage of the panel process renders itself vulnerable to a claim of ‘soft justice’. Restorative justice generally within the Irish jurisdiction has been seen by one practicing judge to be ‘a tad woolly, namby-pamby, excessively liberal, genteel, well- meaning but ineffective’.32 However, such a welfare approach within reparative contract terms also corresponds somewhat with the approach argued by

 30

Meredith Rossner, ‘Reintegrative Ritual: Restorative Justice and MicroSociology’ in Susanne Karstedt, Ian Loader and Heather Strang (eds) Emotions, Crime and Justice (Hart Publishing 2011). 31 ibid. 32 Shane McCarthy, ‘Perceptions of Restorative Justice in Ireland: The Challenges of the Way Forward’ (2011) 8 Irish Probation Journal 194.

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restorative theorists such as Christie, Mika and Zehr. For Christie, punishments should inflict as little pain as possible as we should be striving for alternatives to punishments, not only alternative punishments and that, in addressing acts as crimes there needs to be more emphasis on solving conflicting interests between people.33 Similarly, Mika and Zehr have talked of crime as ‘fundamentally a violation of people and interpersonal relationships’, with a priority on addressing the harm caused to those relationships between victim, offender and the wider community.34 Conversely, Duff suggests that ‘restoration through retribution’ should be the desired outcome of restorative processes; that truly understanding restoration within the context of criminal justice, and understanding what retribution stands for in the criminal punishment context, can then help to illuminate the fact that ‘restoration is not only compatible with retribution and punishment but requires it’.35 Despite such claims of ‘soft’ justice, reparation panels have continually counter balanced the welfare ethos within case discourses with accountability requirements. All contracts negotiated have included detailed reparative plans of action and a strong denouncing by all the panellists, including the caseworker, of the offending behaviour alongside acknowledgement of the harm that such crimes cause to direct victims and indirect local community members alike. Alongside evidence of empathetic words and an exploration of re-integrative and rehabilitative options tailored to each participant’s individual needs, there is also community based support service referrals and words of encouragement to desist from recidivism. However, the principle of teasing out accountability for the offending behaviour and harm caused is prioritised as part of each case referred. Panel members can strive to get to the core of the offending by discussing with participants issues such as relational problems, lack of employment opportunities, debt concerns and dependency issues. Community representatives and community sourced caseworkers can then explore community based support services without

 33

Nils Christie, Limits to Pain (Martin Robinson 1981). Harry Mika, Harry and Howard Zehr, ‘A Restorative Framework for Community Justice Practice’ in Kieran McEvoy and Tim Newburn, (eds) Criminology, Conflict Resolution and Restorative Justice (Palgrave MacMillan 2003) 143. 35 Duff (n 24) 382. 34

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the fear of possible accusations of offender bias and instances of ‘victim lecturing’ witnessed in other jurisdictions.36

Restorative Rights and the Democratic Professionalism Ideal The second way in which reparation panels are broadening the restorative rights of participating offenders is through a successful, symbiotic partnership between panel actors. The seamless integration within panel practice of criminal justice professional, programme representative and locally based volunteer roles has helped to successfully balance competing managerialist and community led ideals. This working partnership illustrates the ‘democratic professionalism’ theory that has been previously mooted by Olson and Dzur as a practical reality.37 To explain further, democratic professionalism argues that criminal justice professionals should ideally act as ‘social trustees’ in that ‘professionals have social responsibilities in addition to their fiduciary and function-specific obligations to their base of clients’, and that such professional expertise should be ideally directed towards ‘facilitating public participation and control…they do not inevitably reduce the sphere of lay or citizen involvement, but share decision-making domains rather than monopolizing them’.38 Both argue that such a concept has proved important in that it has helped to address the apparent conundrum within the restorative justice concept wherein ‘restorative justice theory leaves virtually no role for professionals, yet in practice they are deeply involved in restorative justice programmes’.39 The case can indeed be put forward that much restorative justice theory tends to concentrate on the need for informal control and voluntary, lay orientated participation and ownership. For example, Nils Christie has famously criticised how, over the years, criminal justice conflicts have been continually ‘stolen’ by professionals and that such conflicts should be reclaimed by voluntary, lay orientated and victim centred courts.40 It is also the case that almost all restorative justice models

 36

Patrick M Gerkin, ‘Who Owns this Conflict? The Challenge of Community Involvement in Restorative Justice’ (2012) 15(3) Contemporary Justice Review: Issues in Criminal, Social and Restorative Justice 289. 37 Susan M Olson and Albert W Dzur, ‘Revisiting Informal Justice and Democratic Professionalism’ (2004) 38(1) Law and Society Review 139. 38 ibid 47. 39 ibid 139. 40 Nils Christie ‘Conflicts as Property’ (1977) 17(1) British Journal of Criminology 1.

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involve criminal justice professionals to varying degrees. The Irish panel models are of course fully dependent on these very professionals, alongside the community representative element, from the judicial referral at the initial court appearance through to the participation of Probation Service and Garda officers within actual panel discussions and finalising with the judicial sanction. Within reparation panel practice, justice professionals such as Garda and Probation Service representatives have been observed acting as ‘task sharers’ with their community representative counterparts.41 Both programmes have researched and debated possible re-integrative options and rehabilitative pathways for offenders, including organising meetings within drug and alcohol treatment and awareness centres. Each panellist has been awarded equal amounts of time in which to put across their thoughts and recommendations and the participating offender themselves is fully involved in the evolving discussion. The practical relevance of this theory within reparation practice can be illustrated within one particular case where the participant in this instance was a single mother with mental health issues who had pled guilty to a shoplifting offence.42 Before the meeting began, and before the participant entered the panel room, a discussion took place between the caseworker, Garda officer and chairperson regarding the metal health of the participant. It was further explained that the participant was estranged from her partner, homeless and living in temporary accommodation, and was looking after two young children alone. The caseworker, based on her knowledge of the offender’s circumstances, was thus able to relay the relevant personal circumstances to the Garda representative and facilitator before the panel discussion began. She was also able to propose a somewhat ‘softer’ approach to be taken within the discussion while not forgetting the offence itself and the need for any harm caused and accountability for that harm to be fully addressed. As part of this particular case, it was proposed by the caseworker, and ultimately agreed in principle by the other panellists, that a reparation sum might not be ‘achievable’ and that other contract terms should therefore be explored. The chairperson agreed that ‘taking money from people who cannot afford it’ might prove self-defeating within the contract terms. However, this case proved interesting in that the participant herself proposed to the panel members that she would be willing to pay a charitable donation. A 50 euros donation was initially discussed with the offender who appeared

 41

Shapland et al. ‘Situating Restorative Justice within Criminal Justice’ (n 11) 517. 42 Observation carried out in October 2013. Notes on file with author

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willing to pay that amount. It has been argued that such an example of ‘active accountability’ can represent a ‘shift in the public identity of the lawbreaker’ and illustrate that the participant is ready to take active responsibility for the offending behaviour and pay back the community in a positive way.43 Within this case, the caseworker reiterated that any sum ‘needs to be affordable’ and the sum was reduced to a 40 euros donation. Within this case example there was real evidence of the community sourced caseworker, acting as a surrogate relational support mechanism, safeguarding the welfare and interests of the participant both before the panel discussion and during the subsequent drawing up of agreed contract terms. This element of task sharing, of finding a middle ground between overly technocratic professionalism and parochial communitarianism, shares a further resonance with Crawford’s notion of ‘deliberative justice’. This notion of justice can be illustrated when public participation in the consequences and recurring nature of criminal acts is corralled within a framework of fairness of process and human rights consideration. For Crawford, such justice ‘encourages public discussion, and emphasises reasoning, debate, communication and normative appeals while offering proposals for how best to solve problems or meet legitimate needs’.44 Within the panel model the importance of communication, discussion and reasoning, as well as the importance of safeguarding the rights of participating offenders, has been clearly in evidence. For example, regarding the safeguarding of participant rights, offenders are informed within discussions that any previous criminal acts that they may divulge will have no legal bearing on the case at hand. It has been asserted by panellists that ‘we are only here to discuss this particular crime, the reason why you have been referred to us’.45 This is an important element within panel discussions and contrasts with a conventional justice practice wherein past offending behaviour is usually omitted from formal court proceedings except during sentencing. In analysing past offending behaviour, whilst still safeguarding a participant’s procedural rights protections, both professional and community representative panel

 43

Gordon Bazemore and Jeanne Stinchcomb, ‘A Civic Engagement Model of Reentry: Involving Community Through Service and Restorative Justice’ (2004) 68(2) Federal Probation 17. 44 Adam Crawford, ‘In the Hands of the Public?’ (2002) 13 Relational Justice Bulletin 7. 45 This was told to a participating offender, by a programme facilitator, as part of one panel meeting (January 2014) in which the participant was concerned that previous drug convictions might have a bearing on his present case.

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members can place the current crime being managed into wider context. It can enable the panel representatives to delve deeper into any societal and behavioural issues within the participant’s background and increase the opportunities for successful rehabilitative and re-integrative proposals as part of the agreed reparation contract. During the contract agreement phase of a town based panel managing a case involving a series of public order offences, this task sharing notion of ‘deliberative justice’ was again in evidence. As part of this case discussion, panellists debated whether it would be practical for the participating offender to apologise in person to the manager of the fast food outlet in which the public order offences had taken place. The offender had been intoxicated and had used threatening words and behaviour towards another man and a Garda officer in the establishment. The community representative on this particular panel told the facilitator that he knew the manager personally, and that he would be open to such an apology in person. He told the participating offender, ‘he will sit down with you and discuss the incident…he will respect you for apologising in this way…he is a good guy’. The offender was agreeable to the term but appeared somewhat anxious as to what such an apology might entail. The representative added that ‘you will find this challenging but it will be good for you…keep it simple…you do not have to regurgitate everything that happened’. Thus, the Garda representative and programme facilitator actively sought out the community representative volunteer’s inside knowledge of the local area and contacts within it, and the apology was included as part of the agreed reparation terms. Furthermore, the Garda panellist indicated that she knew the arresting officer personally and that she would also be very approachable to the prospect of a face-to-face apology. This term was also included within the reparation agreement. This case example clearly illustrates the task sharing ethos within panel discussions. The community representative’s knowledge was utilised and proposals were included as important reparative and rehabilitative aims. It also provides an answer to concerns noted by Olson and Dzur that ‘the quality of lay participation is crucial from the perspective of democratic professionalism, because merely symbolic task sharing where citizens are present but have no real authority is worse than no task sharing at all’.46 A further benefit of successful professional and community led reparation panel partnerships is that there is an increased perception within participants that the process as a whole is both fair and legitimate. This

 46

Olson and Dzur (n 37) 161.

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perception can be important on a number of levels.47 First, it can help to delimit certain aspects of what Sherman has called the ‘defiance theory’.48 This assumes that when an offender views a sanction as illegitimate, when they have a weak relationship, or no relationship at all, with the sanctioning agent and when they deny any element of shame attached to the offence, then the result can see such offenders continue to offend. Alternatively, future recidivist tendencies may be reduced if sanctions are viewed as fair and relational bonds, even indirect bonds with community representatives who they do not know personally but do know are products of the same local community, can then be reattached to mainstream society. Sherman argues that restorative mediation and conference models are more likely to achieve these desistance patterns, whereas a court room based justice model is more likely to illustrate defiance. In this regard, previous research within youth family restorative group conferencing practices in New Zealand has further argued that reconviction rates can be decreased if offenders agree with the outcome, believe the process is fair and feel generally involved in the decision making process.49 Within other cases, professional criminal justice panellists and their reparation programme counterparts as well as community representative volunteers have debated as equals the various reparative sums that should be included within contract agreements. Garda and Probation Service panellists have been observed on occasion altering reparative financial sums after being reminded by programme caseworkers of the financial and employment based struggles that certain participants have had to overcome. All panellists, therefore, have illustrated a task sharing ethos, not only with their lay member counterparts but also with participating offenders themselves as they have striven to increase ownership and legitimacy in the panel process, as well as accountability for the harm caused. Indeed the reparation partnership sharing ideal have previously been seen as ultimately lacking within other UK-based victim offender mediation and conferencing restorative models.50 Although the theoretical concept of restorative justice sees criminal conflicts managed differently to that of court based processes, in reality almost all restorative justice

 47

Tom Tyler, Why People Obey the Law (Yale University Press 1990). Laurence Sherman, ‘Defiance, Deterrence and Irrelevance: A Theory of the Criminal Sanction’ (1993) 30(4) Journal of Research in Crime and Delinquency 445. 49 Gabrielle Morris and Allison Morris, Understanding Re-offending (Institute of Criminology, Wellington 1999). 50 Joanna Shapland et al. ‘Situating Restorative Justice within Criminal Justice’ (n 11) 517. 48

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programmes have to exist alongside Government oversight and, in most cases, only continue to operate due to continued state funding and a reliance on case referrals. This remains the case within the Irish based reparation model. However, such a working relational, democratic professional ethos as evidenced within these panel practices can improve the possibilities for restorative principles and restorative rights to come to the fore. It can further help to delimit the potential for managerialist domination and serve to ‘reinvigorate democracy by creating new community bonds and strengthening existing ones’.51 .

Conclusion In conclusion, it is important to stress that the general limits of restorative practice should always be remembered when researching this paradigm. Daly argues that caution is needed when faced with the idealism and ‘nirvana story of repair and goodwill’ that can attach to restorative justice as a whole.52 However, the Irish based offender reparation panel model can be seen as a restorative process that has successfully embedded both ‘legal’ and restorative rights for participating offenders. The panels have successfully incorporated both community representative and professional criminal justice representative actors as part of a fully inclusive criminal discourse. While the harm caused by the initial offence, and need for full accountability and adequate reparation to repair that harm, has always been forcibly highlighted, the social justice elements of the referred crime have been equally explored. This has answered previous criticisms of a perceived lack of a social work ethos as part of criminal justice procedure generally.53 It has also, in turn, helped to uncover a number of relevant welfare based factors which have tended to play prominent roles within that offending. Respectful dialogue has allowed for the participant’s voice to be heard. Rehabilitative recommendations relating to the offence itself, as well as further recommendations aimed at improving future life choices generally, have allowed participants to fully participate within the reparation process. In this way, panel practices have fundamentally clashed with the adversarial nature of conventional criminal justice processes in which, as Doak argues, the (formal) trial process tends to

 51

Jonathan Doak, ‘Honing the Stone: Refining Restorative Justice as a Vehicle for Emotional Redress’ (2001) 14(4) Contemporary Justice Review: Issues in Criminal, Social and Restorative Justice 450. 52 Daly (n 23) 70. 53 Garland (n 6).

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‘crush’ the narratives of both victims and offenders.54 The panels are examples of a successful merging of restorative principles and a broadening of restorative rights within a process that remains at all times reliant on managerial based support. The successful relational dynamic, redemptive and task-sharing ethos between professional and lay member panel representatives can thus prove a practical restorative template for restorative justice practices in the future.

 54

Doak (n 51) 443.

CHAPTER NINE THE TRADE UNION ACT 2016 AND BALLOTING FOR INDUSTRIAL ACTION: IS THE FURTHER RESTRICTION ON THE ‘RIGHT TO STRIKE’ IN THE UNITED KINGDOM A FLAGRANT VIOLATION OF EUROPEAN CONVENTION STANDARDS AND A STEP TOO FAR FOR THE COURTS? CHARLES BARROW

Introduction The Trade Union Act 2016 (which received the Royal Assent on 4 May 2016) introduces wholesale changes to the industrial relations landscape. When originally published the Trade Union Bill was the subject of intense criticism and condemnation by a coalition of trade unionists, members of the wider labour movement, civil liberties campaigners and others with an interest in industrial relations.1 Despite some concessions by the Government and subsequent amendments to the Bill during its passage

 1

For example, Liberty, Amnesty International and the British Institute of Human Rights published a joint statement on 7 September 2015, condemning the Trade Union Bill as a device to ‘... undermine workers’ ability to organise together, protect jobs and livelihoods ..’ and was ‘a major attack on civil liberties ... that would hamper people’s basic rights to protest and shift even more power from the employee to the employer.’ accessed 27 July 2016; the Chartered Institute of Personnel and Development commented that the Bill was ‘an outdated response to the challenges facing the modern workplace’ accessed 10 September 2016.

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through the parliamentary process the majority of the provisions remain in place. The Act introduces further restrictions on the organisation of industrial action including a minimum turnout requirement in strike ballots; specific provision for a required minimum level of support for industrial action in specified public sector industries; the introduction of a two-week notice period to be provided to employers prior to the initiation of industrial action; additional trade union reporting obligations (such as to report details of any industrial action to the Certification Officer) and fresh restraints on picketing.2 In order to benefit from the statutory immunities from an action in tort (provided by s 219 Trade Union Labour Relations (Consolidation) Act 1992) a trade union must comply with existing detailed and complex regulations relating to the conduct and organisation of an industrial action ballot and to the content of any subsequent strike notice. 3 Trade unions need to take considerable care in preparing the content of the ballot paper, the literature that accompanies it and in adhering to the correct procedure during the process of balloting and after the ballot has been completed. 4 Without full compliance with all the details of the balloting rules a strike ballot will be nullified and the strike declared unlawful – resulting in an injunction being granted prohibiting the industrial action. 5 The provisions in the Trade Union Act 2016 build on this existing structure of legal regulation and add further layers of additional bureaucracy. As this new legal framework makes it exceptionally difficult for trade unions to take lawful industrial action the question arises whether a successful legal challenge could be mounted to determine whether these provisions are in compliance with European Convention principles. Up to

 2

Additional changes to other aspects of trade union law have been introduced including: limitations on trade union ‘facility time’ in the public sector, restrictive amendments to the organisation of trade union political funds and new powers have been awarded to the Certification Officer to investigate and regulate trade union internal affairs. 3 As Maurice Kay LJ observed in Metrobus Ltd v Unite [2009] IRLR 851 [119] ‘On any view, the ballot provisions are detailed and legalistic’. 4 The laws regulating the conduct and organisation of industrial action ballots were originally developed in the Trade Union Act 1984, the Employment Act 1988 and the Trade Union Reform and Employment Rights Act 1993. These provisions and the limited reforms of 1999 and 2004 were consolidated into the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 1992). 5 For examples of the courts strict interpretation of the ballot provisions prior to the Trade Union Act 2016 see Metrobus Ltd v Unite [2009] IRLR 851; EDF Powerlink Ltd v NURMT [2010] IRLR 114; British Airways plc v Unite [2010] IRLR 423; Network Rail Infrastructure Ltd v NURMT [2010] EWHC 1084.

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now, legal action at the European Court of Human Rights or in the United Kingdom’s domestic courts (enforced through the provisions of the Human Rights Act 1998), challenging the United Kingdom’s trade union law as contrary to Convention rights, have had mixed results.6 In particular, in the area of industrial action, the Strasbourg court has been reluctant to directly adjudicate on this question. Most recently, in National Rail, Maritime and Transport Union v United Kingdom7 (RMT v United Kingdom) the Strasbourg Court held that the union application that the balloting requirements were incompatible with Article 11 was ‘manifestly ill-founded’ and therefore inadmissible. The union (after earlier strike action had been subject to an injunction) had eventually complied with the strict balloting rules and had successfully called the industrial action. As the union had been able to take action, it had not demonstrated a potential violation of its rights under Article 11.8 Trade unions have also had little success with this argument at the national level. Lloyd LJ in the Court of Appeal in Metrobus Ltd v Unite9 (where an injunction had been granted prohibiting the strike action after an inadvertent technical breach of the notice provisions) rejected the view that the industrial action balloting requirements were ‘disproportionate’ and therefore in violation of Article 11 of the Convention; finding them not excessively onerous or unreasonable.10

 6

For example, in Council of Civil Service Unions v United Kingdom (1988) 10 EHRR 269 the Strasbourg court held that a total ban on trade union membership at the GCHQ monitoring service was not a breach of Article 11 as workers there were to be regarded as ‘members of the administration of the state’ and thus excluded from protection under Article 11(2). By contrast, in Wilson and Palmer and Others v United Kingdom [2002] IRLR 568 the Court held that domestic law that permitted discrimination between union and non-union employees at work in order to discourage collective bargaining was in violation of Article 11. In ASLEF v United Kingdom [2007] IRLR 361 the Court found that the state’s failure to permit trade unions to expel members for membership of a political party (the British National Party) was an unjustified interference with a union’s right under Article 11 to devise its own rule structures. 7 (2015) 60 EHRR 10. 8 For further analysis of this decision, see Charles Barrow, ‘RMT v United Kingdom [2014]: The European Court of Human Rights Intimidated into Timidity or Merely Consistent in its Inconsistency?’ (2015) 3 European Human Rights Law Review 277. 9 [2009] IRLR 851 10 For an analysis of this decision and associated case law see Charles Barrow, ‘UK Courts, Balloting Requirements and the Right to Strike: Recent Developments’ (2011) 45 Law Teacher 132.

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Despite this disappointing recent domestic and European case law the new limitations on industrial action are so unprecedented and of a whole new order – heavily impacting on the already limited ‘right to strike’ – that the issue of whether they are in compliance with European Convention safeguards on freedom of association is a matter that is now ripe for further examination by the domestic courts and the European Court of Human Rights.

Article 11 of the European Convention on Human Rights and the ‘right to strike’ Article 11(1) of the European Convention provides that ‘Everyone has the right ... to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.’ Under Article 11(2) this may be restricted where it is ‘... necessary in a democratic society ... for the protection of the rights and freedoms of others’. The matter that first arises is to what extent the Strasbourg authorities articulate the ‘right to strike’ as an inherent element within Article 11(1) and then secondly, what level of state interference with the exercise of this right is permitted under Article 11(2). The jurisprudence on this issue has developed incrementally; with the Strasbourg court in its earlier decisions noting that although Article 11 does not explicitly provide a right to strike, strike action is one of the essential means by which trade union members’ interests can be protected; such as where a collective agreement needs to be enforced or to deter the victimisation of union members. However, as strike action is only one of the ways trade unions could exercise their rights the exercise of this right could be limited (although not extinguished) by national law.11 In Demir and Baykara v Turkey12 (Demir) and in Enerji Yapi-Yol Sen v Turkey13 (Enerji) the European court further considered the ‘right to strike’ as a feature of Article 11. In Demir14 the Grand Chamber of the European Court of Human Rights held that Turkish law that operated to

 11

See Schmidt & Dahlstorm v Sweden (1976) 1 EHRR 632. In Unison v United Kingdom [2002] IRLR 497 and the Federation of Offshore Workers Trade Unions v Norway, App no 38190/97 (ECtHR, 27 June 2002), the Strasbourg Court proceeded on the assumption that Article 11 encompassed the right to strike (as a complement to collective bargaining) and the issue in question concerned the degree of legitimate state intervention in this right. 12 (2009) 48 EHRR 54. 13 App no 689591 (ECtHR, 21 April 2009). 14 Demir (n 12).

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annul a collective agreement between a civil service union and employer attacked an essential element of Article 11 – the right to organise. Implicit in that judgment was the acceptance that the right to take action to protect collective bargaining is also inherent in Article 11.15 In Enerji16 public sector workers who ignored a legal prohibition on industrial action at their workplace were disciplined by their employer for taking part in a strike in order to secure a collective bargaining agreement. Whilst the Strasbourg Court acknowledged that the right to strike was not absolute, this strike ban was disproportionately harsh and unlawfully discouraged trade union members from “exercising their legitimate right to take part in ... strike action aimed at defending their members interests.”17 Most recently, the European Court of Human Rights in RMT v United Kingdom18 (when examining the compatibility of a ban on secondary industrial action with Article 11) and in Hrvatski lijecnicki Sindikat v Croatia19 (where the Croatian medical union was prohibited from taking strike action to enforce a collective agreement), has explicitly accepted that both primary and secondary strike action is within the scope of trade union rights under Article 11. The issue now to consider is whether the level of interference represented by the additional industrial action balloting provisions contained in the Trade Union Act 2016 can be justified under Article 11(2) as ‘necessary in a democratic society’. Under European Convention case law state intervention can only be permitted under Article 11(2) if it meets a ‘pressing social need’ – which involves a balancing of competing interests and an examination as to whether the state’s intervention goes no further than is necessary to meet that need – i.e. it is a proportionate response to the legitimate objective pursued.20 Thus, an investigation of

 15

The Strasbourg Court had earlier articulated this principle in Wilson and Palmer and Others v United Kingdom [2002] IRLR 568 when it observed at [46] - ‘…The essence of a voluntary system of collective bargaining is that it must be possible for a trade union which is not recognised by an employer to take steps, including if necessary organising industrial action, with a view to persuading the employer to enter into collective bargaining with it on those issues which the union believes are important for its members interests’. 16 Enerji (n 13). 17 ibid [32]. 18 RMT (n 7). 19 [2014] ECHR 1337. 20 On the interpretation of this test see, Handyside v United Kingdom (1976) 1 EHRR 737; Sunday Times v United Kingdom (1979) 2 EHRR 245; Smith and Grady v United Kingdom (2000) 29 EHRR 493 and specifically in the industrial

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whether the balloting requirements are a balanced, measured and proportionate means of securing the policy objectives behind the legislation is necessary. As the provisions of the Trade Union Act 2016 plainly impede the ‘right to strike’, significant reasons would need to be established to justify measures of such a draconian nature.

The Balloting Provisions and Article 11(2) Section 2 of the Trade Union Act 2016 (inserting a new s 226(2)(a)(iia) into the TULR(C)A 1992) introduces a new minimum turnout requirement. In all industrial action ballots at least 50% of union members eligible to vote must participate in the ballot, and of those that participate, a majority of those voting support the call for action. The Government’s view is that this would enhance the democratic process; that it will ensure that industrial action has democratic support and legitimacy within the relevant workforce and ‘... avoid great disruption to members of the public … on very old ballots secured by low turnouts’.21 This is a rather weak and somewhat disingenuous justification for such a radical change. In the United Kingdom, across all national and municipal elections, an accepted principle is that a simple majority of those who voted is sufficient for a democratic mandate. Furthermore, the Government has persistently refused, despite requests from trade unions, to countenance a switch from inefficient postal ballots (that historically produce low turnouts) to secure workplace ballots or electronic balloting – both systems that would be far more likely to yield higher levels of member participation and so guarantee a more democratic decision than an arbitrary minimum turnout condition that will, in practice, be very difficult to achieve.22 Workplace ballots are utilised in other areas of industrial policy; such as when employees are voting on recognition of a trade union under Schedule A1 TULR(C)A 1992, and electronic balloting is a recognised method used by numerous public and private organisations. 23 If the Government genuinely intended to ensure a more democratic

 context – Wilson and Palmer and Others v United Kingdom [2002] IRLR 586 and ASLEF v United Kingdom [2007] IRLR 361. 21 Trade Union Bill Deb 15 October 2015, col 162 per Nick Boles. 22 This power to introduce new forms of voting for strike ballots have been available since 2004 - Employment Act 2004 s 54. 23 The Electoral Reform Services reported in 2014 that over 400 organisations have used secure electronic voting methods for internal and external elections accessed 12 September 2016.

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outcome then it would have introduced these more modern systems of balloting; methods that unions themselves have lobbied for.24 This failure has an impact on the issue of proportionality; alternative and less damaging voting methods could have been applied to meet the objective of strengthening the democratic legitimacy of the ballot.25 Recent research has demonstrated that this new provision will have a very serious impact on the ability of trade unions to take action in support of collective bargaining – an essential element of trade union rights under Article 11. In the period of investigation, between 1997 and 2015, if the 50% criteria was in place, only 85 out of 158 strike ballots would have reached this threshold – a total of 3.3 million workers would have been denied the opportunity to take strike action.26 This provision might satisfy the Government’s stated objective of ensuring that industrial action has a very high level of democratic validity - nevertheless, in the context of its effect on trade union ability to defend the legitimate interests of their membership, it is doubtful whether the insistence on this degree of electoral support can be justified as a sufficiently balanced and proportionate constraint. In ‘important public services’ (including the fire service, education (of those under 17) and health services, and the transport, border security and nuclear decommissioning sectors27) there is an additional requirement that industrial action will require the support of at least 40% of those entitled to vote.28 Thus, a simple majority (that satisfies the new 50% participation threshold) will not be sufficient in order for action to go ahead in these particular industries and any union member who abstains or forgets to return their ballot paper will effectively be deemed to be opposing the strike.

 24

During the Bill’s passage through parliament the Government agreed to commission (powers now contained in the Trade Union Act 2016 s 4) an independent review on the delivery of secure methods of electronic balloting but have not given any guarantee that any proposals would be accepted. 25 The Strasbourg Court in Glor v Switzerland, App no. 13444/04 (ECtHR, 30 April 2009) and in Nada v Switzerland [2012] ECHR 169 noted that a relevant consideration in determining whether a restraint is proportionate is whether there are less restrictive methods of fulfilling the aim of the measure under examination. 26 Ralph Darlington and John Dobson, The Conservative Government’s Proposed Strike Ballot Thresholds: the Challenge to Trade Unions (Institute of Employment Rights 2015) 27. 27 Section 3(2) (2D) & (2E) specifies that the details of the exact services affected will be determined by regulations through the Secretary of State’s statutory instrument powers. 28 Section 3 (2) (2A-2C), amending s 226 TULR(C)A 1992.

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The consequences of requiring a trade union to meet both the 50% threshold and the 40% minimum level of support for public sector disputes will have a serious impact on a trade union’s capability in the public services to call for action - one of the few sectors where unions remain strong. The Government’s own analysts have predicted a 65% reduction in industrial action stoppages in the public sector as a consequence of these thresholds.29 As it becomes more difficult to organise and prosecute lawful industrial action to protect centralised collective bargaining these provisions will inevitably weaken trade union opposition to the erosion of pay and conditions that are often the corollary to cuts in public services. The Government’s justification for this measure is predominantly an argument based on the inconvenience strikes in the public sector cause to the general public and the potential harm to the economy.30 However, it is not clear that there has been any attempt, when devising these new measures, to balance the competing interests as required under Strasbourg principles – a degree of disruption to the public is often unavoidable and temporary, yet the impact (of enforcing these provisions) on trade unions are profound. Strasbourg case law also establishes that disruption to a business is not, on its own, a sufficient reason to unduly limit strike action. In Gustaffson v Sweden31 the applicant was an employer who objected to a lack of state protection from industrial action that forced him to join an employer’s association and be bound by a collective agreement. The Court held that there was no violation of Article 11 as a trade union’s right to strike and so cause economic damage – in order to protect their members’ interests by forcing the employer to comply with a collective agreement – took precedence over the employer’s competing right to refuse to join the employers’ association and engage in collective bargaining. In Federation of Offshore Oil Workers’ v Norway32 the potential damage to the economy was not a valid justification for undue limitation on industrial action as the overall functioning of the national economy was not jeopardised. The Government has attempted to defend these thresholds as compatible with its obligations under the Convention as Article 11(2) not only exempts the armed forces and the police from Article 11 guarantees but also permits ‘lawful restrictions’ on the exercise of rights under Article

 29

Department for Business, Innovation and Skills, Ballot Thresholds in Important Public Services Consultation Impact Assessment (BIS/15/4181A, July 2015) [33]. 30 Department for Business, Innovation and Skills, Consultation on Ballot Thresholds in Important Public Services (BIS/16/15 July 2015) [4]. 31 (1996) 22 EHRR 409. 32 App no. 381901 (ECtHR, June 27 2002).

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11 by ‘members of ... the administration of the state.’ However, this expression has been interpreted narrowly33 and does not include the full range of public servants listed in the 2016 Act. The Strasbourg jurisprudence is also clear that any restriction on trade unions operating in the public sector must still be justified as proportionate in the context of the facts. In Demir34 (a case on restrictions on collective bargaining in the public sector) the Grand Chamber stated that restrictions on civil servants ‘must not impair the very essence of the right to organise’ and must ‘ … not be arbitrarily imposed’.35 The Strasbourg Court has also ruled on a number of occasions that disciplinary measures taken against civil servants for participating in strike action contravenes Article 11.36 In addition to the threshold criteria the Trade Union Act 2016 introduces further regulation of balloting procedure. For example, additional information must now be provided on the ballot paper. Section 5(2B) (amending TULR(C)A 1992 s 229) requires that the ballot ‘…must include a summary of the matter or matters in issue in the trade dispute to which the proposed industrial action relates.’ Section 5 (2C) and (2D) also stipulates that where unions ask for support for action short of a strike, details of the actual type of action will need to be included on the ballot paper and that the ballot paper must specify the anticipated length of the industrial action. The designated purpose of this is to enable a trade union member to make an informed decision when deciding how to vote. Employers are, however, also entitled to receive a copy of the ballot paper in advance simply for the purpose of determining whether the union has complied with these (and existing) requirements and then, where there is an error, to seek an injunction to stay industrial action. As a failure of the union to meet these detailed requirements will not cause the employer any practical disadvantage or inconvenience, and as they are obligations designed to protect the interests of members, not employers, it must be questioned whether, as an unnecessary requirement, they are compliant with the principles underpinning Article 11(2). Section 8 of the 2016 Act (amending TULR(C)A 1992 s 234A) doubles the amount of notice union’s have to give to employers before strike action can be called - from 7 to 14 days37 - giving employers

 33

See Vogt v Germany (1996) 21 EHRR 205 [67]. Demir (n 12). 35 ibid [144]. 36 See Tum Haber v Turkey (2008) EHRR 19, Kaya & Seyhan v Turkey, App no 30946 (ECtHR, 15 September 2009); Dogan Altun v Turkey, App no 7152/08 (ECtHR, 26 May 2015). 37 Unless the employer expressly agrees in advance to the lesser notice period. 34

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additional time to take steps to prepare for industrial action and to put in place contingency plans to nullify the effect of the action. The Government has not produced specific evidence as to why employers need this extra time – certainly none was forthcoming in the consultation documents - yet a delay can have a significant effect on a trade union’s campaign, as a union is unable to strike ‘while the iron is hot’.38 Section 231 and 231A of the TULR(C)A 1992 already obliges trade unions to provide, to all those members entitled to vote and relevant employers, detailed information about the number of votes cast; the number who voted yes; the number voted no and the number of spoiled ballots. Section 6 of the 2016 Act (amending TULR(C)A 1992 s 231) now additionally requires trade unions to additionally specify how many members were entitled to vote and whether the new minimum thresholds have been met. A legislative requirement to inform the electorate of the result of the ballot in broad terms may well be justifiable but compelling the union to inform their membership of the result of the ballot in such detail (with any failure resulting in injunctive relief) is arguably beyond what is necessary to satisfy the democratic objective of the provision. As noted earlier, the Government’s consistent argument in the consultation documentation and whilst the Bill was proceeding through its parliamentary stages was that these constraints on industrial action are necessary in order to protect businesses, the economy and to avoid undue public inconvenience. The whole purpose of industrial action, however, is to put economic pressure on employers in order to encourage settlement of the dispute and, at times, a degree of disruption to the public is an unavoidable and natural consequence of the enforcement of this right under Article 11. Furthermore, the argument based on the damage strike action causes to the economy and to the general public, is itself weakened by the statistical data. Days lost for strike action has fluctuated over the past 25 years, but most recently has shown a decline, for example from 1.04m in 2007 to 170,000 in 201539 - suggesting that this legislative intervention is unnecessary and cannot be justified by reference to the principles of Article 11(2) - as there is no genuine ‘pressing social need’ for the provisions.

 38

A further limitation on strike action is imposed by Trade Union Act 2016 s 6 which introduces a 6 month limit on a trade union’s mandate. After this period the ballot ceases to be effective and any campaign of action that has already been initiated will be interrupted while the union re-ballots at substantial cost. 39 accessed 17 Oct 2016.

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Under Convention principles it is self-evident that a government must act in good faith when devising and implementing any restrictions on a Convention right. If the motive for restrictions impacting on a Convention right is ill-intentioned then the state will clearly be in violation of the relevant Article. The Grand Chamber in Demir re-iterated this point when noting that the reasons introduced by the national authorities to justify the restrictions must be ‘ …relevant and sufficient’.40 The succession of unjustified additional hurdles (to taking lawful industrial action) introduced by the Trade Union Act 2016 suggests that the provisions may be more motivated by hostility to the trade union movement than a genuine attempt to improve industrial relations or economic efficiency.

The ‘proportionality’ test and International and European Labour Standards One aspect of the proportionality test outlined in Strasbourg case law is whether the domestic law is consistent with the requirements of relevant international law and contemporary European practice; it is unlikely that legislation that is in violation of international and European standards can be said to be ‘proportionate’.41 The International Labour Organisation (ILO) supervisory bodies recognise that the right to strike is an essential and fundamental element of trade union rights implicit within Convention 87 on Freedom of Association and the Right to Organise and that any restrictions must be reasonable and objectively justifiable. 42 The ILO Freedom of Association Committee has explicitly held that restrictions that place substantial limitations on the right to strike – such as the imposition of legal procedures that require trade unions to comply with complicated balloting requirements prior to the declaration of a strike - are unreasonable and a violation of Convention 87.43 Specifically, the requirement that at least 50% of relevant employees in a dispute must turn out to vote in a ballot, has been denounced by the ILO Freedom of Association Committee as an ‘excessive’ and ‘unjustified’ requirement that hinders the right to strike.44 Furthermore, the ILO Committee of Experts has condemned a requirement that over 50% of voters must

 40

Demir (n 12) [119]. ibid [78]. 42 See Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO (2006) [520-525]. 43 ibid [547]; See also Report of the Committee of Experts on the Application of Conventions and Recommendations (2009) [235]. 44 Australia (Case 2698) (2010). 41

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approve a strike in a ballot as an unreasonable requirement and inconsistent with ILO Convention 87.45 The Government has attempted to justify the new balloting regulations in the public sector by arguing that the specific nature of these services and their impact on the public justifies the additional controls.46 The ILO does permit states to introduce a higher voting threshold in very limited circumstances – where the strike action is in ‘essential services’. These are defined by the ILO as services ‘ ... the interruption of which would endanger the liberty, personal safety or health of the whole or part of the population’.47 The list of ‘important services’ in the Trade Union Act 2016 includes services (such as education and transport) that do not fall within this ILO definition and therefore should not be restricted in this way. The ILO Committee of Experts in their annual report in 2016, reserved particular criticism for the inclusion of education and transport as ‘important services’ where this 40% threshold must be met. 48 Article 6(4) of the European Social Charter49 establishes the right of workers to take collective action subject to the qualification contained in Article 31 – a restriction has to be ‘necessary in a democratic society’ for the ‘protection of the rights and freedoms of others’ (identical to the test outlined in Article 11(2) of the European Convention). By reference to this test, the supervisory bodies of the European Social Charter have repeatedly been of the view that the detailed balloting requirements in United Kingdom law is not in conformity with Article 6(4) – due to the technical complexity and excessive nature of the balloting provisions.50 It is thus highly likely that the additional balloting provisions in the Trade Union Act 2016 will also be denounced as a violation of Article 6(4). It is also relevant to note that in Demir51 the Grand Chamber of the European Court not only referred to international labour standards (and associated jurisprudence) when determining the extent of Article 11 rights

 45

El Salvador (Case No 2896) (2015). Department for Business, Innovation and Skills, Consultation on Ballot Thresholds in Important Public Services (BIS/16/15 July 2015) [4]. 47 General Survey on Freedom of Association and Collective Bargaining (1994) [159]. 48 Committee of Experts on the Application of Conventions and Recommendations Annual Report (2016) 153. 49 The Charter is part of the same human rights structure as the Convention; deriving from the same parent body – the Council of Europe. 50 See the Committee of Experts Reports Conclusions XV-1 (2000) 637; XVI-1 (2002) 688; XV11-1 (2004) 516. The most recent report of the European Social Rights Committee has re-iterated these criticisms Conclusions XX-3 (2014) 22. 51 Demir (n 12). 46

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and the disproportionality of the Turkish law but also the legal consensus amongst contracting states to the Convention. The provisions of the Trade Union Act 2016 go far beyond the level of control other states have over trade union activity. Across the countries that are members of the Council of Europe, balloting is not unusual prior to industrial action, however, no state requires such detailed information in a pre-ballot notice to be sent to the employer or member or insists on the level of detail to be communicated to an employer prior to industrial action.

The Relevance of the ‘margin of appreciation’ and ‘living instrument’ Doctrines It is self-evident that the relevant sections of the Trade Union Act 2016 are a severe limitation on a trade union’s ability to take strike action and therefore an attack on the democratic right to organise in order to defend terms and conditions of employment through collective bargaining and to protect individual rights at work. For a challenge to these provisions to succeed at Strasbourg may depend, however, on the European Court’s current attitude to the ‘margin of appreciation’ and ‘living instrument’ doctrines. In RMT v United Kingdom52 the Strasbourg court was willing to give the United Kingdom government a wide margin of appreciation (the discretion states have in determining national law in areas of social or political sensitivity) when holding that a total ban on secondary action was not in violation of Article 11 safeguards. The Court’s decision that the state is entitled to a wide discretion when regulating industrial action was inevitably fatal to the union’s claim. In coming to this conclusion the Court failed to give appropriate weight to prior Strasbourg jurisprudence which emphasised that the more important the right (such as the ‘essential’ rights of collective bargaining and industrial action) the narrower the margin of appreciation available to the state. In support of this view, that the state was entitled to a wide discretion, the Strasbourg Court classified secondary industrial action as an ‘accessory’ activity rather than a ‘core’ aspect of trade union freedom of association and held that if a restriction affects an accessory, rather than a core aspect of trade union freedom, a wider margin of appreciation is permitted to signatory states when assessing whether the interference can be justified under Article 11(2).53 On this hierarchal classification of strike

 52 53

RMT (n 7). ibid [87].

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action, primary strike action (restricted by the balloting provisions under the Trade Union Act), is thus a ‘core’ trade union activity and should attract a much narrower margin of appreciation than ‘accessory’ secondary action. The Court also explained that to achieve a proper balance between the interests of labour and management involved sensitive social and political issues and that the state’s policy choice must be respected unless it was ‘manifestly without reasonable foundation’54 – a test that the balloting restrictions arguably fail. The decision in RMT v United Kingdom55 reflects a cautious attitude to the interpretation of Article 11; mirroring a recent trend across the Convention of affording states a wide margin of appreciation in ‘sensitive’ policy areas. It appeared that the phase of dynamic Strasbourg judicial decision making constructed on the ‘living instrument’ doctrine - where the Convention is interpreted in the context of contemporary European legal, political and industrial consensus (reflecting the evolution in trade union rights in international and domestic systems of law) – was in decline. However, an alternative view is that the Court’s judgment was an aberration; interrupting a more progressive line of case law that applied Convention principles in a more consistent and purposive manner. Certainly, the judgment is arguably contradictory: as the logic of the decision is that there is a ‘right’ to take secondary action but it cannot be exercised as a total ban is a legitimate ‘proportionate’ response. 56 The most recent jurisprudence in this area has endorsed the understanding in Demir and Enerji that strike action should be protected as an important aspect of Article 11 and that any restrictions should be construed strictly.57 The Strasbourg court in Unite v United Kingdom58

 54

ibid [99]. RMT (n 7). 56 It has been argued that in cases concerning the United Kingdom persistent judicial, political and media criticism of Strasbourg ‘activism’ has had an arguable influence on decision making at Strasbourg. The judgment in the RMT case could be seen as an attempt at appeasing United Kingdom critics of the Strasbourg court weakening the power of the judgment. For further discussion of this theme see Matthew Saul, ‘The European Court of Human Rights’ Margin of Appreciation and the Process of National Parliaments’ (2015) 15 Human Rights Law Review 745. 57 See Hrvatski Lijecnicki Sindikat v Crotia [2014] ECHR 1337 where the court held that a prohibition on strike action by the Croatian medical union in support of collective bargaining was a violation of Article 11. In particular see the concurring opinion of Judge Pinto De Albuquerque who confirmed that instruments of international law must be taken into account when assessing proportionality. 58 App no 65397/13 (ECtHR, 3 May 2016). 55

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referred to the Grand Chamber’s judgment in Demir, when confirming that the right of association under Article 11 has a number of important elements where the margin of appreciation may be limited. The Strasbourg Court confirmed that the breadth of the margin of appreciation depends on the nature and extent of the right and the applicable restrictions; the strength of the competing interests and the state’s compliance with international instruments and the European consensus.59

Conclusions As the ‘right to strike’ is within the scope of the protection provided by Article 11 one question that arises is the attitude of the United Kingdom domestic courts to a new challenge to the balloting regulations under the provisions of the Human Rights Act 1998. The Court of Appeal in Metrobus60 (before the amendments introduced by the Trade Union Act 2016) held that the balloting provisions were not in violation of the Article 11 as they were ‘proportionate’ and appropriate - taking into account the wide margin of appreciation available to signatory states. In the immediate wake of this decision the courts have declined to re-consider the issue on the grounds that the Court of Appeal has disposed of the issue. The new restrictions contained in the 2016 Act provides an opportunity for a further examination, at the domestic level as well as at Strasbourg, of the compatibility of the provisions with Article 11. A contemporary challenge to the balloting provisions will now take into account that since the Metrobus61 decision there has been an unequivocal acceptance by the Strasbourg court of the ‘right to strike’ as an aspect of Article 11 protection and the Trade Union Act has significantly increased the level of interference in balloting procedure, making it more difficult for the government to justify the provisions. There is also some evidence of a shift in the attitude of some of the judiciary to the construction of the statutory provisions on balloting. For example, Elias LJ in the Court of Appeal in NURMT v SERCO, ASLEF v London and Birmingham Railway Ltd62 (RMT v SERCO) held that, taking cognisance of the Strasbourg court’s recognition of the ‘right to strike’ under Article 11, it would be inappropriate to continue with the historical policy of construing the immunities legislation against trade unions

 59

ibid [55] Metrobus (n 9). 61 Metrobus (n 9). 62 [2011] IRLR 399. 60

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seeking to protect industrial action from civil action. The Court acknowledged that the balloting rules have not been designed to erect impenetrable obstacles to strike action but are to ensure that a union organises a fair and open democratic ballot and that minor technical failures should not be permitted to undermine the whole balloting process. 63 The Court did not consider whether the balloting rules were contrary to Article 11 and therefore did not invoke the provisions of the Human Rights Act 1998, but clearly anticipated a challenge to these statutory requirements in the Supreme Court or in Strasbourg in the near future. Although the decision in RMT v SERCO64 is to be welcomed, the complexity and comprehensive nature of the provisions still remains an issue for trade unions attempting to exercise their ‘right to strike’. The Court of Appeal’s guidance does not necessarily change the position where a trade union fails to follow any one of the detailed and technical statutory provisions.65 What it does demonstrate is that the hostility to trade unions attempting to exercise their right to take strike action may be waning – a crucial requirement if the challenge to the balloting provisions is to be sustained. It remains to be seen whether the observations by the Strasbourg Court in RMT v United Kingdom66 are used as a justification to reject the argument that the balloting provisions in the Trade Union Act 2016 are in violation of Article 11. There are numerous Strasbourg cases, noted earlier (in decisions concerning other signatory states), that re-state and apply relevant Convention principles on the nature and scope of Article 11 rights in a more robust and consistent manner. If this Strasbourg jurisprudence is considered appropriately it may be only a matter of time before the United Kingdom higher courts declare the balloting provisions in the 2016 Act incompatible with the Convention. To fail to do so will surely merely be delaying the inevitable judgment of the European Court of Human Rights that the new legal framework is in violation of Article 11 safeguards.

 63

This approach was followed by Eady J in Balfour Beatty v Unite [2012] IRLR 452 and by Ede J in London Underground Ltd v ASLEF [2012] IRLR 196 where it was noted that balloting rules attempt to strike a balance between ensuring democratic legitimacy and a fair ballot without imposing unrealistic burdens on union officers. See also comments to this effect by Singh J in ISS Mediclean Ltd v GMB [2015] IRLR 96 [12]. 64 RMT v SERCO (n 62). 65 The recent High Court decision on the balloting regulations in Govia Thameslink v ASLEF [2016] IRLR 686 demonstrates this, where a specific technical violation of the provisions resulted in an injunction being granted. 66 RMT (n 7).

CHAPTER TEN SOCIAL AND ECONOMIC RIGHTS IN A POST-NEOLIBERAL SOCIETY CLAIRE-MICHELLE SMYTH

Introduction Neoliberal ideology has dominated western political discourse and practice since the 1970’s and is one which centres on favouring the free market and limiting state intervention. At the outset when researching this paper, I was focused on the potential legal status of social and economic rights in a post neoliberal society. However, it soon became apparent that the neoliberal ideology is too entrenched to simply change, having been described as the ‘most successful ideology in world history’.1 Looking at it from another perspective, it may be possible that social and economic rights themselves could prove to be the catalyst which ameliorates this embedded neoliberal thinking. Social and economic rights require state action, regardless of whether the imposition is of a positive or negative obligation, and in some cases, do require expenditure. Judicial enforcement against the state to protect and vindicate these rights, restrict the market to a degree and ensure the intervention of the state. For example, if there is a right to emergency medical care that the state must provide and can be enforced in a court, this restricts the free market privatisation of medical providers for emergency medical care. There is significant opposition to the justiciability of social and economic rights which are diametrically inimical to the neoliberal agenda. However, this resistance predates the dominance of the current political climate and was evident at the negotiations to transpose the Universal Declaration on Human Rights into a legally binding treaty.

 1

Perry Anderson, ‘Renewals’ (2000) 1 New Left Review 1, 13.

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This chapter advocates strongly for the justiciability of social and economic rights, particularly through constitutionalisation to elevate these rights to a comparable status of their civil and political counterparts which would in turn curb the neoliberal capitalist expanse while at the same time protecting the most fundamental of human rights. It is not suggested that justiciability is a fix all, nor that it would be an easy task as it would require a significant element of judicial activism. Rather, it is a backstop to ensure that policy is in fact implemented and assures that certain essential services are not privatised.

Neoliberalism: A Brief Synopsis Political restructuring after world war two was designed to prevent the reemergence of inter-state geopolitical rivalries. The Keynesian political and economic organisational policies (known as embedded liberalism) dominated.2 This required a high level of state intervention with capitalist ventures being restricted and the emergence of the welfare state. This ideology began to breakdown in the 1960’s and by the mid 1970’s soaring unemployment and social expenditure saw the global phase of ‘stagflation’.3 Following austerity measures to curb an economic crisis in the early 1970’s, the UK was forced to apply to the International Monetary Fund for $3.9 billion (this was the largest amount that had been requested from the IMF who in turn needed additional financial support from Germany and the USA in order to provide the loan to the UK).4 The fund required significant cuts to public spending as a required precondition to granting the loan, despite government opinion that it would be immoral to require the British people to make further and needless sacrifices.5 While the UK did not need to draw down the entire amount of the loan the changes made to social policy had taken root. It became clear that the

 2

See Jeffrey A Hart and Aseem Prakesh, ‘The Decline of Embedded Liberalism and the Rearticulation of the Keynesian Welfare State’ (1997) 2(1) New Political Economy 65. 3 A term coined in 1970’s in the United Kingdom which refers to the economic state were inflation is high, growth rate is slow and unemployment is high. 4 National Archives, ‘The Economic Situation’ 14 March 1974 available at last accessed 30 January 2017. 5 Memorandum by the Secretary of State and Foreign Commonwealth Affairs, 29 November 1976 available at last accessed 30 January 2017.

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system causing the economic crisis of the 70’s was no longer working and in this void the capitalists stumbled towards neoliberalism. Neoliberalism, based on notions of freedom and dignity, assumes that individual freedom is guaranteed by the freedom of the market and trade. It reflects the interests of property owners, businesses, corporations and financial capital opposed to state intervention. It is not an entirely coherent framework – it does not want state intervention to regulate the market, but does want it to protect property rights.6 Polanyi’s view is that this results in the loss of good freedoms while bad ones take over; planning and control are a denial of freedom whereas free enterprise and private ownership are essential to it.7 Neoliberal freedom has not only restored power to a narrow capitalist class but has produced an immense concentration of corporate power. Disproportionate influence over the media persuades us that we are all better off living under the neoliberal ideology. By redefining the citizen as the consumer it confers rights and freedoms on those who’s income, leisure and security need no enhancing, leaving a pittance for the rest.8 The move to neoliberalism, the focus on the market and the freedom of consumerism has, as Verhaeghe suggests, brought out the worst in us.9 Redefining citizens as consumers means that people show their choice by spending, some have more to spend than others ergo in consumer democracy votes are not equally spread which results in the continued disempowerment and disenfranchisement of the poor and middle classes. Notwithstanding the fact that the neoliberal policies have contributed to the economic crisis (the privatisation of public services and banks which are too big to fail resulting in the company reaping the benefits with the state taking the risk) this crisis has then been used as an excuse to impose more policies which disproportionately affect the poorer sections of society while overall enhance the wealth of the state.10 Recent years have been characterised by a transfer of wealth, not only from the poor to the rich but also within the ranks of the wealthy resulting in a new class of super rich.11 In a world governed by competition, those who fall behind become defined as losers. If you are unemployed it is not because of

 6

David Harvey, A Brief History of Neoliberalism (Oxford University Press 2005). Karl Polanyi, The Great Transformation (Beacon Press 1954). 8 ibid 256. 9 Paul Verhaeghe, ‘Neo-Liberalism has brought out the worst in us’ (The Guardian, 29 September 2014) 10 See Elise Klein, ‘Neo-Liberal Subjectivities and the Behavioural Focus on Income Management’ (2016) 51(4) Australian Journal of Social Issues 503. 11 Andrew Sayer, Why We Cant Afford the Rich (Policy Press 2015). 7

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structural unemployment caused by the application of capitalist ventures, it is because you are unenterprising and lazy, if you are in debt it is not because of the rising cost of living, increased taxation or benefit cuts, it is because you are improvident. This has resulted in self harm, eating disorders, depression, mental health problems and loneliness in an endemic fashion. The neoliberal solution to the problems that it itself caused (including the IMF imposed austerity measures) have been widely judged to be unjust.12 Those responsible for the financial crisis are saved by public funds resulting in cuts to public expenditure which to date has fallen disproportionately on the already poor and marginalised.13 The hypocrisy of the implementation of these policies is also evident. Many governments have strongly criticised the implementation of these style of policies in occupied territories while at the same time employing similar ones at home. For example, in 2003 Paul Bremer, head of the Coalition Provisional Authority in Iraq set out the measures intended to transform Iraq – the privatisation of all public enterprises, ownership rights by foreign firms, repatriation of foreign profits, control of the banks given to foreign entities and the elimination of nearly all trade barriers coupled with the strict regulation of the labour market, strikes forbidden, unionisation restricted and flat taxes imposed. These measures were heavily criticised as being repugnant to The Hague Regulations and in excess of the powers of an occupying state.14 However they bear a striking a resemblance to measures being imposed by governments within their own states, as according to the neoliberal theory these measures are necessary and sufficient for the creation of wealth and therefore the improved well-being of the population at large. These policies are, as Paul O’Connell has previously opined at their heart antagonistic to social and economic rights which require state intervention, action and expenditure.15 Social and economic rights are rejected by the neoliberal theorists in two main grounds; one libertarian

 12

See David Stuckler and Sanjay Basu, The Body Economic: Why Austerity Kills (Basic Books 2013). 13 Joe Wills and Ben TC Warwick, ‘Contesting Austerity: The Potential and Pitfalls of Socioeconomic Rights Discourse’ (2016) 23(2) Indiana Journal of Global Legal Studies 629, 630. 14 See Maj Leonard J Law, ‘The Rule of Law in Iraq: Transitional Justice Under Occupation’ (School of Advances Military Studies, Fort Leavenworth, Kansas 2004). 15 Paul O’Connell, ‘On Reconciling Irreconcilables: Neo-Liberal Globalisation and Human Rights’ (2007) 7 Human Rights Law Review 483.

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and the other utilitarian. The libertarian approach centres on the idea that freedom is achieved when coercion is absent. As social and economic rights require taxation in order to finance the enjoyment of the rights, this essentially is coercing the taxpayer who is therefore not free. As such they only support the notion of negative obligations seen in the traditional civil and political rights.16 This contention, as we will see later is unfounded and misguided as all rights contain an amalgamation of both positive and negative obligations. The utilitarian argument is premised on free market interference. Essentially that any state involvement to ensure particular outcomes distort and undermine the free market. Under this model state involvement is discouraged and privatisation strongly encouraged as it creates an environment more economically efficient.17 This holds the freedom to contract and bargain as paramount, does not take into account any inequality in bargaining power and is reminiscent of the Lochner era.18 The consequences of adhering to the neoliberal agenda are clear and are played out daily in the lives of those in poorer sections of society. Within the UK’s social security system the assessment of those in receipt of disability benefits was privatised and staff were encouraged to apply the free market rules (maximise the overall wealth of the state by reducing the amount paid in disability). This resulted in many people being declared fit for work when they arguably were not. Statistics show that between 2011 and 2014 2,380 people died following this determination and their benefit being stopped.19 It has been estimated that 90 people per month in the UK die as a direct result of the withdrawal of benefits. Those in unemployment also face onerous tasks in order to ensure that they continuously receive their benefit and face financial sanctions when they do not comply.20 A recent document21 shows that 20% of the population live in extreme poverty, 27% of children live in extreme poverty with a further 13% of

 16 See Milton Friedman and Rose Friedman, Free to Choose: A Personal Statement (Harcourt Publishing Company 1980); Friedrich A Hayek, The Constitution of Liberty (University of Chicago Press 1960). 17 ibid 18 Lochner v New York 198 US 45 (1905). See David A Strauss, Why was Lochner Wrong? (2002) 70(1) University of Chicago Law Review 373; David Mayer, ‘The Myth of Laissez-Faire Constitutionalism: Liberty of Contract During the Lochner Era’ (2008-2009) 36 Hastings Constitutional Law Quarterly 217. 19 Reported by BBC News available at last accessed 17 June 2017. 20 The website details many personal stories of hardship and death from benefit sanctions. 21 Feargal McGuiness, ‘Poverty Statistics in the UK: Statistics’ Briefing Paper No 7096, 30 June 2016 available at

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children experience material deprivation. Of these children one third of those living below the absolute poverty line are from unemployed families. Therefore, the majority of children living in poverty in the UK today reside in families where their parent(s) are employed. Cuts to legal aid undermine access to justice for those who are from a lower socio-economic background and the introduction of unnecessarily high tribunal fees have had the effect of meaning those in lower paid employments can no longer challenge an unfair dismissal.22 So, we can look at the success of neoliberalism in two ways. The first is that it is working perfectly. It has maximised the wealth of society as a whole, it has created consumer democracy, state intervention has diminished significantly through privatisation of public utilities, removed most of the barriers to trade and restricted interference with the free market. If we are to judge a society based on these conditions, the neoliberal agenda is a roaring success. However, if we are judge it on the endemic levels of poverty then it is a resounding failure. Do we, as a society, want to live in a world where it is acceptable for 80% of the wealth to be confined to the top fifth, where the gap between those who have and those who have not continues to widen, where it is acceptable for any child to be homeless and hungry, where people die because they cannot access the welfare system designed to protect them, where zero hours contracts are becoming the norm, where depression and anxiety is becoming prevalent in children, where those who have not are stigmatised rather than helped? If we are to be judged by that standard, neoliberalism has failed, its illusion of freedom only applicable to those who can afford to access it. If we judge neoliberalism by this second option, and concede that from a human rights perspective it is an abject failure we have an opportunity, as was the case in the 1970’s when embedded liberalism was deemed a failure, to establish a new climate. The emergence of justiciable social and economic rights is essential to combat or ameliorate many of the harms which are caused by the imposition of neoliberal policies. These rights are those which protect the fundamental rights necessary for life including rights to food, shelter, water, clothing, social security and an adequate standard of living. So long as these rights remain beyond the purview of the judiciary there is nothing to stop this spiral. The legalistic approach to human rights determines that



last accessed 17 June 2017. 22 See House of Commons Justice Committee, Courts and Tribunal Fees, Second Report of Session 2016-2017, 16.

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rights are meaningless unless they can be enforced in a court of law.23 As globalisation of economic markets dominate political discourse24 the drive towards commodification, the ‘transformation of all social relations to economic relations’, serves the economic elite to the detriment of the imposition of obligations on the state to provide.25

Social and Economic Rights: The Case for Justiciability Before delving into the objections generally proffered against justiciability, it is necessary to emphasise why constitutionalisation, and not merely legalisation, is crucial for effective protection. Legalisation commends issues to the legislature and constitutionalisation ascribes decision-making power to the courts.26 Within this distinction, Gearty asserts the possibility that it would be permissible, in certain circumstances, for the courts to become involved in cases of social and economic rights, but only as secondary actors, leaving primary responsibility with the political arms of the state.27 In other words, the courts can enforce the legislation, but no further. A similar argument is put forth by Ellen Wiles who suggests that certain safeguards or qualifications should be placed on the judiciary in determining these rights.28 This concessionary approach effectively makes social and economic rights justiciable, albeit within the confines of the legislation. A compelling issue with this position, as identified by Jeff King, is that there is a lack of legislative focus.29 He draws on the UK case of Bellinger v Bellinger which challenged the provisions of the Matrimonial Causes Act 1973, for its failure to include the marriages of post-operative transsexuals.30 Despite the claim being rejected in the High Court31 and the

 23

JK Mapulanga-Hulston, ‘Examining the Justiciability of Economic, Social and Cultural Rights’ (2002) 6 International Journal of Human Rights 29, 37. 24 See generally Arthur MacEwan, Neo-Liberalism or Democracy? Economic Strategy, Markets and Alternatives for the 21st Century (Zed Books Ltd 1999). 25 Paul O’Connell, ‘The Death of Socio-Economic Rights’ (2011) 74(4) Modern Law Review 532, 537. 26 Conor Gearty and Virginia Mantouvalou, Debating Social Rights (Hart 2010) 55. 27 ibid 28 Ellen Wiles, ‘Aspirational Principles or Enforceable Rights? The Future for Social and Economic Rights in National Law’ (2006) 22 American University International Law Review 35, 63. 29 Jeff King, Judging Social Rights (Cambridge University Press 2012) 164. 30 [2003] UKHL 21. 31 [2001] I FLR 389.

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Court of Appeal,32 the House of Lords issued its first declaration of incompatibility under section 4 of the Human Rights Act 1998,33 by following the jurisprudence of the European Court of Human Rights.34 The issue of marriage for post-operative transsexuals was clearly something that the legislature had not considered during drafting.35 Further, even in circumstances where the intention of the legislature is clear, given changing social norms and evolving human rights standards the court may interpret the legislation in light of emerging social standards.36 The controversy in rigidly applying legislation without regard to such considerations is evident from the case of R (Pearson and Martinez) v Secretary of State for the Home Department where the court observed that: In deference to the legislature courts should not easily be persuaded to condemn what has been done, especially where it has been done in primary legislation after careful evaluation and against a background of increasing public concern about crime.37

In upholding the prohibition of convicted felons from voting in elections, the court deferred to the legislature, relying on the Forfeiture Act, a statute enacted in 187038 and taking little account of any changing

 32

[2002] Fam 150. The House of Lords declared that the legislation was incompatible with Articles 8 and 12 of the European Convention on Human Rights. 34 Goodwin v UK (2002)35 EHRR 18. 35 For further discussion of this case and surrounding issues see Sharon Cowan, ‘That Woman is a Woman! The Case of Bellinger v Bellinger and the Mysterious (Dis)Appearance of Sex’ (2004) 12 Feminist Legal Studies 79; Ralph Sandland, ‘Feminism and the Gender Recognition Act 2004’ (2005) 13 Feminist Legal Studies 43; Hollin K Dickerson, ‘Vindication without Substance: Gender Recognition and the Human Rights Act’ (2005) 40 Texas International Law Journal 807. 36 This is known as dynamic statutory interpretation. See William N Eskridge Jr, ‘Dynamic Statutory Interpretation’ (1987) 135 University of Pennsylvania Law Review 1479; William N Eskridge Jr, Dynamic Statutory Interpretation (Harvard University Press 1994); Anthony D’Amato, ‘The Injustice of Dynamic Statutory Interpretation’ (2010) 64 University of Cincinnati Law Review 1996. 37 R (Pearson and Martinez) v Secretary of State for the Home Department [2001] HRLR 39 [20] per Kennedy LJ. 38 Cases brought before the European Court of Human Rights have since held that this blanket ban on voting for convicted felons is a breach of Article 3, Protocol 1 of the Convention in Hirst (No.2) v UK (2006) 42 EHRR 41; MT v UK App No. 60041/08 and 60054/08 (ECtHR, 11 April 2011) and McHugh & Others v UK App 33

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societal standards; a position which has been found to be in breach of the European Convention on Human Rights. Further, laws that criminalised homosexual acts would have remained if the court’s sole function was merely to enforce the legislation, as written, without recourse to more fundamental considerations of justice.39 Practically, if the role of courts is limited to the enforcement of duly-enacted legislation, laws which violate human rights would remain unchecked, which is wholly inappropriate and a clear abdication of duty. Consequently, as fundamental rights, Paul O’Connell concludes, social and economic rights should be constitutionalised and not merely provided for in legislation. He articulates two main reasons for this approach: firstly, legislation, which may be repealed or modified, insinuates that these rights are elective or non-compulsory, and are, in essence, ‘charity to the deserving poor’ rather than a fulfilment of an obligation; secondly, in hierarchical terms, statutory rights are of lower rank than constitutional rights.40 Additionally TRS Allan wonders whether fundamental values can be ‘defined’ in statute at all, asserting that judgments of value are inextricably linked with context, something that legislation cannot provide.41 Therefore, courts would have their efforts vitiated if the legislature could simply repeal any law or policy, thereby making any ruling null and void. Identifying social and economic rights as constitutional rights affirms their status as fundamental rights which cannot be changed at the whims of government. They ‘should not be at the mercy of changing governmental policies and programmes’42 rather, rights to basic goods ‘ought to be above politics’.43 It has been a serious normative defect to exclude an entire category of rights from the rubric of constitutional order. As such, constitutional

 No. 51987/08 (ECtHR, 10 February 2015). See Susan Easton, ‘Electing the Electorate: The Problem of Prisoner Disenfranchisement’ (2006) 69 Modern Law Review 443; Steve Foster, ‘Reluctantly Restoring Rights: Responding to the Prisoner’s Right to Vote’ (2009) 9 Human Rights Law Review 489. 39 See Norris v Ireland (1988) 13 EHRR 186; Dudgeon v UK (1981) 4 EHRR 149; McR’s Application for Judicial Review [2003] NI 1. 40 Paul O’Connell, Vindicating Social Rights (Routledge 2012) 6. 41 TRS Allan, ‘Human Rights and Judicial Review: A Critique of Due Deference’ (2006) 65 Cambridge Law Journal 671, 674. 42 Asbjorn Eide and Allan Rosas, ‘Economic, Social and Cultural Rights: A Universal Challenge’ in Asbjorn Eide, Catarina Krause and Allan Rosas (eds), Economic Social and Cultural Rights; A Textbook (2nd Ed Martinus Nijhoff 2001) 6. 43 Gearty and Mantouvalou (n 26) 108.

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democracy will remain incomplete without their inclusion.44 Restricting the court’s role to enforcement of legislation impedes the development and content of the right and, takes no account of the contextual element of a given case. There is however significant opposition to the constitutionalisation of social and economic rights. Gearty, in his opposition, draws heavily on the refusal of the Joint Committee on Human Rights in the United Kingdom to recommend them as justiciable rights within a proposed Bill of Rights.45 The Committee provided three main reasons for this approach: firstly, these rights could only be vaguely expressed and this would increase the potential for lengthy and boundless litigation against public bodies;46 secondly, the incorporation of these rights would be undemocratic in nature as it would open matters of purely political concern to scrutiny by the judiciary;47 finally, any adjudication upon such rights would require judges to make decisions that they are ill-equipped to make, given the complexity of these rights.48 In addition, Gearty discerns further difficulties and objections centring on the competence of the courts,49 issues of enforceability relating to the potential of on-going court supervision50 and threats of ‘undesirable outcomes’.51 Essentially, these concerns can be categorised under three headings:

 44 Colm O’Cinneide, ‘The Constitutionalization of Social and Economic Rights’ in Helena Alviar Garcia, Karl Klare and Lucy A Williams (eds), Social and Economic Rights in Theory and in Practice: Critical Enquiries (Routledge 2014) 271. 45 Gearty and Mantouvalou (n 26) 60. See also Jemima Stratford, ‘Joint Committee on Human Rights Report, A Bill of Rights for the UK?: Proposed Approach to Social and Economic Rights’ (2009) 1 Judicial Review 35. 46 Joint Committee of Human Rights, ‘A Bill of Rights for the UK?’ Twenty Ninth Report of Session 2007-8, HL165, HC 150, 183-4. 47 ibid 185-7. 48 ibid 188-91. 49 Gearty and Mantouvalou (n 26) 60. The argument of the court’s competence is dealt with in more detail later in this chapter as a central argument against its involvement. 50 The court does however, routinely become involved in the supervision of orders in areas of the administration of estates, bankruptcy and the winding up of companies. Herman Schwartz, ‘Do Economic and Social Rights Belong in a Constitution’ (1995) 10 American Journal of International Law and Policy 1233, 1237. 51 He provides the example of such an undesirable outcome as if courts can issue orders and enforce social and economic rights, taxes may have to be raised in order to meet the cost of fulfilling the order. Gearty and Mantouvalou (n 26) 63.

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characterisation, legitimacy, and institutional capacity.52

Characterisation The objection to the justiciability of social and economic rights in terms of their content, obligation, and cost can be classified as one based on the character of these rights. This essentially states that their normative content is too vague and, secondly, that they necessarily impose costly positive obligations on the state, and should therefore remain solely within the ambit of the political sphere.53 This is redolent of the position of those who do not deny the existence, or indeed importance, of social and economic rights but maintain that they belong within the political arena. The first argument is that social and economic rights are less specific, less concrete and subject to more debate as to their substance and therefore are ‘quintessentially political’ in nature.54 This is countered by Pius Langa who argues that the reason for any vagueness is due to their exclusion from adjudication.55 It can equally be argued that many civil and political rights were equally vague but through consistent judicial review the parameters and content of these rights have been developed.56

 52 Aoife Nolan, Bruce Porter and Malcolm Langford, ‘The Justiciability of Social and Economic Rights: An Updated Appraisal’ Centre for Human Rights and Global Justice, Working Paper Number 15 of 2007, NYU School of Law, 6. They are referred to as ‘vague, costly and institutionally complex’ by Alana Klein, ‘Judging as Nudging: New Governance Approaches for the Enforcement of Constitutional Social and Economic Rights’ (2008) 39 Columbia Human Rights Law Review 351, 360. 53 Mark Tushnet, ‘Reflections on Judicial Enforcement of Social and Economic Rights in the Twenty First Century’ (2011) 4 National University of Juridical Sciences 177, 178. 54 Gearty and Mantouvalou (n 26) 53; EW Vierdag, ‘The Legal Nature of the Rights Granted by the International Covenant on Economic, Social and Cultural Rights’ (1978) 9 Netherlands Yearbook of International Law 69; Michael J Dennis and David P Stewart, ‘Justiciability of Economic, Social and Cultural Rights: Should there be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing and Health?’ (2004) 98 American Journal of International Law 462. 55 Puis Langa, ‘Taking Dignity Seriously-Judicial Reflections on the Optional Protocol to the ICESCR’ (2009) 27 Nordic Journal of Human Rights 33. 56 This is particularly so when the court has determined and expanded on the precise contours of what is required in order to secure the right to a fair trial. For examples and analysis see Eva Brems, ‘Conflicting Human Rights: An Exploration in the Context of the Right to a Fair Trial In the European Convention for the Protection of Human Rights and Fundamental Freedoms’ (2005) 27 Human Rights

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Gearty argues that the lack of specificity inherent in these rights would require a novel and radical shift in the style of analysis by the courts, which could result in a backlash from other sections of society. 57 Historically, the same could be said of cases concerning civil and political rights. One salient example comes from the United States Supreme Court in Brown v Board of Education.58 Here, the Court departed from its reasoning of past decisions and held that racial segregation in educational facilities was unconstitutional. This decision incited a surge in activity from white supremacist movements.59 Yet, the legacy of this judgment cannot be disregarded. It led to significant change in racial relations, the desegregation of public services and accommodation cascaded through the southern United States with judges declaring segregation laws invalid, and it acted as the catalyst for the Civil Rights Act.60 The conditions in the United States prior to the Brown decision illustrate the difficulties of placing human rights exclusively within the political sphere. Before Brown, segregation remained insulated from meaningful scrutiny; it was only by the intervention of the Supreme Court (declaring the unconstitutionality of the practice) that action became possible. To leave these rights solely within the remit of the political realm is to promulgate, retain, and affirm existing policies, which systematically occasion violations in the first instance. Devising a distinction between civil and political rights on the one hand as worthy of judicial protection, and social and economic rights on the other as purely political, is misguided, and the two are not mutually exclusive. This divergence is often accomplished by categorising corresponding obligations as either positive or negative. In traditional terms, civil and political rights were deemed to impose negative obligations as they act to restrain the state from certain actions, while social and economic rights were seen as imposing positive, and expensive, obligations upon the state. This is clearly an oversimplification of the issue, creating a false dichotomy,61 as all human rights contain an

 Quarterly 294; Paul Mahony, ‘Right to a Fair Trial in Criminal Matters Under Article 6 ECHR’ (2004) 4 Judicial Studies Institute Journal 107. 57 Gearty and Mantouvalou (n 26) 48. 58 347 US 483 (1954). 59 Detailed in King (n 41) 64. 60 See generally Martha Minow, In Brown’s Wake: Legacies of America’s Educational Landmark (Oxford University Press 2010). 61 Jeanne M Woods, ‘Justiciable Social Rights as a Critique of the Liberal Paradigm’ (2003) 38 Texas International Law Journal 736, 764.

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amalgamation of both positive and negative obligations.62 Many civil rights, such as those which seek to ensure the right to a fair trial impose positive obligations on the state (and are costly to enforce) while preventing evictions might require the state to refrain from an action.63 Thus the assertion that social and economic rights are naturally expensive is questionable. Internationally the notion that all rights contain both positive and negative obligations has gained broad acceptance, particularly within the European Court of Human Rights.64 Additionally, there have been several high profile cases in different jurisdictions, which have served to confirm that vindicating social and economic rights does not always require positive action on the part of the state. Cases such as Grootboom v Republic of South Africa,65 Olga Tellis & Others v Bombay Municipal Council66 and Attorney General v PHS Community Services Society (the ‘Insite case’)67 all show that this category of rights can be upheld and enforced effectively by the implementation of negative obligations. Thus, it may be costly to administer constitutional rights generally68 however, many social and economic rights can effectively be protected through the imposition of negative obligations, which are inexpensive.69 It may be costly to secure certain social and economic rights, yet equally as expensive to safeguard particular civil and political rights and as such this argument becomes moot.

Institutional Capacity A further argument against justiciability is the lack of expertise that judges may possess in such matters. Those subscribing to this objection argue that

 62

Sandra Liebenberg, ‘The International Covenant on Economic, Social and Cultural Rights and its Implication for South Africa’ (1995) 11 South African Journal of Human Rights 359, 362. 63 Examples given in Gearty and Mantouvalou (n 26) 110. 64 Airey v Ireland [1979] 2 EHRR 305; Ellie Palmer ‘Protecting Socio-Economic Rights Through the European Convention on Human Rights: Trends and Developments in the European Court of Human Rights’ (2009) 2 Erasmus Law Review 397. 65 2000 ZACC 19. 66 [1985] 2 Supp SCR 51. 67 [2011] 3 SCR 134. 68 Cass R Sunstein, ‘Why Does the American Constitution Lack Social and Economic Guarantees?’ (2006) 56 Syracuse Law Review 1, 7. 69 Such as ensuring procedural safeguards against arbitrary eviction as was the case in Connors v UK App No 66746/01 (ECtHR, 27 August 2004).

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there is no objective way for a judge to decide on the amount of an individual’s welfare entitlement, such being political decisions.70 However, in countering this proposition, it has been demonstrated that courts are often injected into controversies where specialist knowledge is implicated and this concern is misguided: to suggest that economic rights issues should be dealt with exclusively by economists and others is tantamount to suggesting that civil and political rights issues should be seen as the exclusive domain of criminologists, trade unionists, psychologists, physicians, paediatricians, the clergy, communication experts and others.71

Furthermore, a thorough knowledge of human rights law is in itself an expertise.72 A critique of the court’s capability to engage with this category of rights is that it is ill-equipped to determine polycentric situations.73 Cases which involve, or will result in, budgetary allocations are classically polycentric. The fear is that adjudicating upon these types of cases will have unintended consequences, encourage unorthodox solutions, or cause courts to avoid the complexity and implications of cases in order to mould the problem into a more manageable form.74 It has been contended that traditional adversarial court proceedings are unsuited to such disputes which could more properly be determined through the parliamentary process.75 However, this is not unique to matters associated with social and economic rights, and many cases of civil and political rights (for example in securing the right to a fair trial) involve similar polycentric issues.76 The South African High Court has stated:

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Tara Usher, ‘Adjudication of Social and Economic Rights: One Size Does Not Fit All’ (2008) 1 UCL Human Rights Review 155, 159. 71 Philip Alston, ‘US Ratification of the Covenant on Economic Social and Cultural Rights: The Need for an Entirely New Strategy’ (1990) 84 American Journal of International Law 365, 375. 72 Gearty and Mantouvalou (n 26) 118. 73 Polycentric in this context refers to the fact that the judgment will have considerable implications outside of the particular case before it. This was argued by Lon Fuller, ‘The Forms and Limits of Adjudication’ (1978) 92 Harvard Law Review 353 discussed in King (n 41) 190-193; JWF Allison ‘Fuller’s Analysis of Polycentric Disputes and the Limits of Adjudication’ (1994) 53 Cambridge Law Journal 367. 74 Jeff King, Judging Social Rights (Cambridge University Press 2012) 192. 75 Usher (n 70) 159. 76 Tushnet (n 53) 179.

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The problems of polycentricity must clearly act as important constraints upon the adjudication process, particularly when the dispute has distributional consequences. But polycentricity cannot be elevated to jurisprudential mantra, the articulation of which serves, without further analysis, to render courts impotent to enforce legal duties which have unpredictable consequences.77

Unequivocally Jeff King considers this the most overstated objection to the constitutionalisation of social and economic rights, as courts regularly engage in polycentric adjudication,78 and all constitutional rights have budgetary implications.79 Questioning the court’s ability to determine these rights on the basis that they lack the capacity accordingly infers that the executive possesses the requisite expertise. It is argued that this is not necessarily the case. Time after time we see the executive making decisions which show their fundamental misunderstandings of these rights and their general inability or unwillingness to protect them. Most recently the UK High Court struck a further blow to the governments benefit cap. Having previously determined that it could not apply to certain groups of carers80 it determined that the cap disproportionately affected lone parents and commented that it caused ‘real misery to no good purpose’.81 Thus it found that imposing the benefit cap on lone parents of children under the age of two to be unlawful. The government immediately announced its intention to appeal the decision.

Democratic Legitimacy This argument, in essence, is that as adjudications on social and economic rights will have implications on resource allocation, such competence lies solely within the remit of the executive branch of the state. The distributive nature of remedies is central to this objection. Distributive justice is concerned with the distribution of society’s wealth, supported by utilitarianism emphasising the common good, it has implications beyond

 77

Rail Commuter Action Group & Ors v Transnet Limited & Ors, High Court, Cape of Good Hope Provincial Division, Case No 10968/2001, [112]. 78 King (n 74) 172. 79 Sunstein (n 68) 7. 80 Hurley & Ors v Secretary of State for Work and Pensions [2015] EWHC 3382 81 See Ben Kentish, ‘Tory Government’s NBenefot Cap is Unlawful and Causes ‘Real Misery for No Good Purpose’, High Court Rules’ (Independent.co.uk 22 June 2017).

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the two parties to the case.82 Conversely, commutative justice (or corrective justice), based on libertarianism, advocates and defines the protection of human rights in a negative manner.83 Also defined as compensatory justice where the court must focus on restoring the victim to the position they were in prior to the violation.84 It is suggested that to engage in resource distribution usurps the role of the executive as well as violates the comity between the separate branches of government. However, in models of deliberate democracy, adjudication enhances the democratic process by augmenting accountability. To suggest that engaging in matters which involve resource distribution is undemocratic is to misunderstand the nature of democracy. In a democratic system where decisions are made by majorities, policies which neglect social and economic rights are common. Conversely, part of the judicial role is to correct ‘the deficiencies of the democratic system and their effects on the most vulnerable’.85 This issue of failing to protect the marginalised is one that cannot reasonably be disputed by those who argue against justiciability. Instead, they reformulate the argument, stating that judicial review cannot provide an adequate remedy and therefore is not appropriate.86 Mounting evidence shows this not to be the case. In several jurisdictions, court rulings have led to the immediate amendment or repeal of offending legislation and, in the absence of immediate action, political pressure has been brought to bear on governments through public debate occasioned by these rulings.87 Accordingly, these cases represent not only a victory for the individual who has successfully litigated her case but also results in far-reaching change for all of those affected by the same violation.

 82 Christopher Mbazira, ‘Appropriate Just and Equitable Relief in Socio-Economic Rights Litigation: Tension Between Corrective and Distributive Forms of Justice’ (2008) 125 South African Journal of Human Rights 71, 78. 83 ibid 72. 84 Dinah Shelton, Remedies in International Human Rights Law (Oxford University Press 1999) 38; See also Ernst J Weinrib, ‘Corrective Justice in a Nutshell’ (2002) 52 University of Toronto Law Journal 349. 85 Gearty and Mantouvalou (n 26) 125. 86 King (n 74) 165. 87 Gearty and Mantouvalou (n 26) 128. The effect of such rulings is particularly evident in India where the orders of the court have had considerable impact. See also Jayne Kothari, ‘Social Rights Litigation in India: Developments of the Last Decade’ in Daphne Barak – Erez and Aeyal M Gross (eds), Exploring Social Rights: Between Theory and Practice (Hart Publishing 2007) 172.

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As King notes, to cite concerns of democratic legitimacy as a reason to deny judicial protection for social and economic rights is to deny democracy itself: A just democracy depends on the guarantee of social human rights. In any such democracy that guarantee is delivered through a legislative programme of social rights, administered by a responsible executive and buttressed by the existence of legal accountability.88

Inextricably linked with democratic legitimacy is the separation of powers argument: as adjudications of social and economic rights will involve budgetary and resource implications, they will be impinging upon the other branches of the state. The primary purpose of the separation of powers doctrine was not to ensure the strict division of functions but rather to prevent the concentration of power in one. The system of checks and balances achieved by this doctrine, served to prevent tyranny and injustice arising from an oppressive government.89 It is only in circumstances where it is determined that social and economic rights do not form part of the rubric of fundamental human rights is the doctrine of separation of powers argument viable.90 Once it has been accepted that they are rights proper, (and for the large majority this has been accepted) this position has to be reconsidered as otherwise it relegates an entire cache of fundamental rights outside the remit of the judiciary. This exclusion, in effect, obviates any system of checks and balances and arguably creates a situation which it was designed to prevent. This argument (that to engage distributive justice breaches the separation of powers) was comprehensively rejected in South Africa, where the Constitutional Court determined that such implications are not an absolute bar to justiciability.91 Failing to include judicial review of social and economic rights could equally be a breach of the separation of powers, as it is transferring the judicial role (the determination, implementation and enforcement of rights) to the legislature.92 The constitutional role of the court within the separation of powers doctrine is one of ensuring reciprocally that other branches of the state fulfil their respective roles ascribed to them under the Constitution, including those

 88

King (n 74) 187. Eric Barendt, ‘Separation of Powers and Constitutional Government’ [1995] Public Law 599. 90 O’Connell, Vindicating Social Rights (n 40) 171. 91 Re Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC) [76-78]. 92 Nolan, Porter and Langford (n 52) 13. 89

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relating to social and economic rights. This harmonious approach has been endorsed by the South African Constitutional Court where it held that: Where state policy is challenged as inconsistent with the Constitution, courts have to consider whether, in formulating and implementing such policy, the state has given effect to its constitutional obligations. If it should hold in any given case that the state has failed to do so, it is obliged by the constitution to say so. In so far as that constitutes an intrusion into the domain of the executive, that is an intrusion mandated by the Constitution itself.93

While agreement has not yet been reached as to the role of the court in protecting and vindicating social and economic rights generally, the reasons given by those against justiciability evidence a fundamental misunderstanding of the nature of these rights.

Does Justiciability Work? Mounting evidence from around the globe shows that justiciability is having a real and positive impact on the protection of social and economic rights. Newer constitutions within Europe have moved away the strict division of rights and have included certain social and economic rights. Further afield, South Africa, Canada and India are the most frequently cited jurisdictions to engage in judicial protection of these rights.94 Regional courts such as the European Court of Human Rights and the Inter-American Court of Human Rights have been reading these rights into civil and political rights in order to make them justiciable and this is having a notable impact on domestic laws and policies of member states.95 In particular the European Court has had a significant impact to changing policies and law in relation to housing rights in the UK. Connors v UK was the first case in which the court found that eviction without an independent and impartial forum in which to challenge such decision breaches article 8.96 This case related to the eviction of members of the

 93

Minister for Health v Treatment Action Campaign (No.2) 2002 (5) SA 721 (CC). For analysis of this point see Claire-Michelle Smyth, ‘Social and Economic Rights: The Struggle for Equivalent Protection in International Law’ in Lora Wildenthal and Jean Quataert, The Routledge History of Human Rights (Routledge forthcoming 2018). 95 For analysis of the European Court’s developing jurisprudence in this area see Claire-Michelle Smyth, Social and Economic Rights in Ireland (Clarus Press 2017) chapter 6. 96 (2004) 40 EHRR 189. 94

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travelling community from land and in McCann v UK the government sought to restrict the Connors judgment to this group.97 The court disagreed and in extending these procedural safeguards to all council tenants determined that: The loss of one’s home is the most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right of occupation has come to an end.98

These two cases in the European Court of Human Rights a court order is now required for the eviction of council tenants, giving the tenants an opportunity to challenge the basis and validity of a proposed eviction.99 While the European Court has been and continues to be a powerful actor in further the cause of social and economic rights, the UK courts themselves are becoming more open to the need for judicial protection. In addition to the benefit cap cases already noted above some additional cases have erred towards protecting the vulnerable rather than enforcing the state’s neoliberal austerity policies. For example, the 52 week eligibility period for housing benefit indirectly discriminated against the mentally ill,100 a decision to house two homeless children and not their mother was a violation of the right to family life,101 and that the bedroom tax discriminated against those living with disability.102 These cases do not declare social and economic rights justiciable generally, rather they show the necessity for the courts intervention in order to protect and vindicate all human rights, including social and economic rights.

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(2008) 47 EHRR 913. ibid [50]. 99 Although it should be noted that this is not universal. In 2013 the Supreme Court in R (on the application of ZH and CN) v London Borough of Newham and London Borough of Lewisham UKSC 2013/0194 found that no such order was required for an eviction of a tenancy granted under S 188. 100 Obrey & Ors v Secretary of State for Work and Pensions [2013] EWCA Civ 1584 101 R (on the application of PK) v Harrow LBC QBD (Admin)30/1/14. 102 R (on the application of Carmichael and Rourke) (formerly known as MA and Others) v Secretary of State for Work and Pensions [2016] UKSC 58. 98

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Conclusion It is well established that the neoliberal policies of the last few decades have served to increase the wealth of society overall by the transfer of wealth from the poor to the rich. As the free market and capitalism has boomed it has been at a terrible cost to humanity. The fundamental rights, those classed as social and economic, have been eroded almost to their brink. No longer is the social welfare system a safety net for those who find themselves struggling, but a punitive system that stigmatises and sanctions those who find themselves entangled therein. Poverty, homelessness and general deprivation is on the rise and within this situation the state further allows business to profit. Companies who outrageously take advantage of the financial position of their customers and charge exorbitant interest rates which have the effect of making massive profits and compounding the cycle of poverty. It is not suggested here that justiciability for social and economic rights will end poverty and deprivation. As Wills and Warwick rightly point out, such will not address the structural inequalities that exist within the neoliberal society.103 These do require a more systematic overhaul of the political and societal structures. However, the role that the court plays here is one that is difficult to overstate. It provides the final backstop against unjust policies designed to make the rich richer and the compound the poverty of the marginalised groups. Neoliberalism is against state intervention in this manner and when the court takes a stand and tells the state that its policies and laws are violating the rights of people, it has no option but to act. This inspires (or perhaps merely compels) state action in order to protect the most vulnerable in our society, to ensure access to emergency healthcare and housing, to prevent arbitrary evictions and to ensure access to education. Where the state is required to provide a basic minimum by law it makes privatisation and commercialisation of that particular commodity unattractive to potential investors and dilutes the neoliberal onslaught. It may, potentially, even be the catalyst to push us into a post neoliberal society.

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Wills and Warwick (n 13).

CHAPTER ELEVEN THE FUTURE OF ECONOMIC AND SOCIAL RIGHTS IN THE UK: CHALLENGES, BUT ALSO OPPORTUNITIES KOLDO CASLA1

Over the next few years, we will have to take some incredibly tough decisions on taxation, spending and borrowing–things that really affect people's lives. Conservative Leader David Cameron, April 20092 We will make Britain a country that works not for a privileged few, but for every one of us. Prime Minister Theresa May, July 20163

Introduction After six years of austerity, in Brexit times, the UK lives at a time of profound uncertainty. For a long time, voices within the Conservative Party, including the Prime Minister herself, have been threatening to repeal the Human Rights Act and even withdraw from the European Convention on Human Rights. If the state of play for civil and political rights looks bleak, one would expect the reckoning for economic, social and cultural rights (ESCR) to be even more discouraging. By and large, the UK has resisted the idea that claims like education, health, housing or

 1

I am grateful to Dr Alice Donald, Senior Lecturer in Law and Politics at Middlesex University and a Trustee of Just Fair, for her valuable comments on an earlier draft. 2 ‘David Cameron warns of “new age of austerity”’ The Guardian (London, 26 April 2009). 3 ‘Theresa May’s first speech as Prime Minister: full text’ The Spectator (London, 13 July 2016).

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work could be framed as human rights, and there is no reason to believe that fundamental challenges will just fade away. However, judging by economic and social rights advocacy in recent years and the political opportunities in sight, there are reasons to remain moderately optimistic. This paper presents some lessons from the austerity-led decade that may help the advocacy of economic and social rights most effectively in the coming decade. The arguments stem from the author’s legal and political analysis, but also from the experience of Just Fair, an organisation that monitors and defends economic and social rights in the UK in accordance with international human rights law (IHRL). Set up in 2011, Just Fair conducts research, interacts with authorities and offers training to empower groups and rights-holders to defend their rights. The paper begins with a description of the added value of a human rights-based approach to socio-economic policies. Then, the paper presents four important explanatory factors behind the inadequate protection of internationally recognised economic and social rights as human rights in the UK: a) the constitutional status of international law; b) the fact that economic and social rights are generally not enforceable in court; c) the declared intention to repeal the Human Rights Act as a sword of Damocles hanging over the human rights community; and d) Brexit. However, as advanced earlier, some opportunities can be glimpsed, which are presented next: a) greater engagement with international human rights mechanisms; b) innovative jurisprudence; c) a growing movement of people reengaging with politics, fighting austerity and inequality; and d) the possibility of channelling part of that mobilisation through specific actions in favour of socio-economic equality.

What does a Human Rights-based approach to Social Justice mean? ESCR are recognised as human rights in international law. The UK has ratified a number of treaties that proclaim these rights, such as the Convention on the Rights of the Child4 or the Convention on the Elimination of Discrimination Against Women.5 Since 1976, the UK is

 4 Convention on the Rights of the Child, adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989, entered into force on 2 September 1990. 5 Convention on the Elimination of All Forms of Discrimination against Women New York, adopted and opened for signature, ratification and accession by General Assembly resolution 34/180 of 18 December 1979, entered into force on 3 September 1981.

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also a State Party of the best-known normative reference in this regard: the International Covenant on Economic, Social and Cultural Rights (ICESCR), ratified by 164 other countries.6 The ICESCR protects the right to work, favourable conditions at work, and union rights (Articles 6-8), the right to social security (Article 9), the right to an adequate standard of living, including food, clothing and housing, among others (Article 11), the right to health (Article 12), the right to education (Article 13), and the right to take part in cultural life and to enjoy the benefits of scientific progress (Article 15). Since 1962, the UK is also bound by the European Social Charter of the Council of Europe,7 which is very much labour-focused, with a long list of rights related to work (Articles 1-10 and 18-19), the protection of health, social security and welfare (Articles 11-14), protection of people with disabilities (Article 15) and protection of family, mothers and children (Articles 16-17). Before delving into the challenges and opportunities for economic and social rights advocacy in the UK, it is necessary to specify what I see as the added value of a human rights approach to socio-economic policies, or to social justice broadly speaking. I understand social justice as the aim of constructing an egalitarian and fair society based on the principles of equality and solidarity. Taking human rights seriously means that the State, as the duty-bearer, must be held accountable in relation to the following nine points: x Respect of minimum core obligations and immediate obligations to act. According to the UN Committee on Economic, Social and Cultural Rights (CESCR), which monitors countries’ compliance with the ICESCR, the State must ensure the satisfaction of ‘at the very least, minimum essential levels’ of ESCR. The CESCR provides details on the meaning of these minimum core obligations in relation to each right in briefings known as General Comments. ‘If the [ICESCR] were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d’être. […] In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort

 6 International Covenant on Economic, Social and Cultural Rights, adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entered into force on 3 January 1976. 7 European Social Charter, ETS No. 35, adopted in Turin and opened for signature on 18 October 1961, entered into force on 26 February 1965.

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x x

x

x

has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations’.8 The obligation ‘to take steps’ towards the fulfilment of economic and social rights is also of immediate effect; steps must be concrete, deliberate and targeted.9 Equality and non-discrimination. Another immediate obligation of State Parties to the ICESCR is the obligation of non-discrimination on any ground.10 Particular attention to most vulnerable groups. ‘Even in times of severe resource constraints, whether caused by a process of adjustment, of economic recession, or by other factors, the vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost targeted programmes’.11 Obligations to respect, protect and fulfil. The guarantee of economic and social rights has three layers of obligations: obligation to respect, which means that authorities must abstain from interfering in the normal enjoyment of these rights; obligation to protect, meaning that authorities must ensure that non-state actors do not prevent individuals from enjoying economic and social rights; and obligation to fulfil, that is, authorities must overcome obstacles to the full satisfaction of economic and social rights.12 Even if a public authority decides to privatise a public service, such as prisons, schools or hospitals, the State remains ultimately responsible for the protection of all human rights.13 Progressive realisation of economic and social rights. Public authorities must take measures, ‘to the maximum of [their] available resources, with a view to achieving progressively the full

 8 CESCR, General Comment 3: The nature of State parties’ obligations (1990) UN Doc E/1991/23 [10]. 9 Article 2(1) ICESCR; CESCR, General Comment 3 (n 8) [2]. See also Katharine G. Young, ‘The Minimum Core of Economic and Social Rights: A Concept in Search of Content’ [2008] Yale Journal of International Law 113. 10 Article 2(2) ICESCR; CESCR, General Comment 20: Non-discrimination in economic, social and cultural rights (2009) UN Doc E/C.12/GC/20. 11 CESCR, General Comment 3 (n 8) [12]. 12 CESCR, Statement on the obligations of States Parties’ regarding the corporate sector and economic, social and cultural rights (2011) UN Doc E/C.12/2011/1. 13 Find useful comparative analysis in Aoife Nolan, ‘Addressing Economic and Social Rights Violations by Non-state Actors through the Role of the State: A Comparison of Regional Approaches to the “Obligation to Protect”’ (2009) Human Rights Law Review 225.

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realisation’ of economic and social rights (Article 2(1) ICESCR). The International Covenant on Civil and Political Rights is admittedly more categorical when it calls on all State Parties ‘to respect and to ensure’ all the rights contained therein (Article 2(1)).14 Yet, this does not mean that the ICESCR is devoid of meaning, insofar as the State bears the burden to prove that its policies are moving forward expeditiously and effectively towards the ultimate fulfilment of these rights. x All appropriate policies. Public authorities must use the most suitable tools to fulfil economic and social rights, including legislative measures and judicial enforceability (justiciability), but also international cooperation and progressive taxation, among others.15 x Non-retrogressive measures. The obligation to fulfil economic and social rights means that States cannot take measures that constitute a step back in the overall enjoyment of economic and social rights.16 This obligation is of immediate effect, so it is also applicable in times of economic recession, and the State bears the burden of proof. For temporary measures to be in accordance with IHRL, authorities must ensure that the rights of the most disadvantaged people are not disproportionately affected, the measure or policy is non-discriminatory, inequalities are mitigated, and the minimum core content of economic and social rights is respected.17 This imposes a cumulative impact assessment duty on the authorities.18 x Accountability and right to remedy. IHRL provides a set of mechanisms that allow for the monitoring of public policies and, in some instances, empower individuals to lodge complaints and have

 14

International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entered into force on 23 March 1976. 15 CESCR, General Comment No. 9: The domestic application of the Covenant (1998) UN Doc E/C.12/1998/24; Special Rapporteur on extreme poverty and human rights, Report on taxation and human rights (2014) UN Doc A/HRC/26/28. 16 CESCR, General Comment 3 (n 8) [9]. 17 CESCR, Public debt, austerity measures and the ICESCR (2016) UN Doc E/C.12/2016/1 [4]. 18 See also Aoife Nolan, Nicholas J. Lusiani and Christian Courtis, ‘Two steps forward, no steps back? Evolving criteria on the prohibition of retrogression in economic and social rights’, in Aoife Nolan (ed), Economic and Social Rights after the Global Financial Crisis (Cambridge University Press 2014).

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access to effective remedies in case of violation of their rights. At the national level, judicial enforceability is both an accountability mechanism and an appropriate policy to protect economic and social rights. Accountability also includes periodic independent monitoring of the progressive fulfilment of these rights. x Access to information, impact assessment and active participation. As a corollary of all of the above, governments are obliged to provide information about the way in which they are getting the population closer to the ultimate goal of the fulfilment of all human rights. This requires authorities to institutionalise impact assessment and facilitate active participation to monitor State practices.

Four Important Challenges for Economic and Social Rights in the UK The UK Constitution does not Domesticate IHRL More than a challenge, this is a starting point for human rights advocacy in the United Kingdom. As is well known, unlike most other countries, including all its European neighbours, the UK does not have a written constitution. The Constitution derives from legislation, case law and customary practice. As noted in the common core document submitted by the UK Government to all UN human rights bodies, the two main principles underpinning the UK Constitution are the rule of law and parliamentary supremacy, which means that ‘an Act of Parliament cannot be overridden by other bodies’.19 This may be read as a subtle warning to any and all international actors in case they feel tempted to assess a domestic law following their own interpretation of a given treaty. The core document also clarifies that the UK implements its international human rights obligations through appropriate legislation and administrative measures. International instruments do not, however, apply directly in UK law.20

In most countries, constitutions contain a bill of rights and international treaties are often explicitly placed somewhere between ordinary legislation and the constitution in the hierarchy of norms. This is

 19

UK, Common core document forming part of the reports of States parties (29 September 2014) UN Doc HRI/CORE/GBR/2014 [4]. 20 ibid [25].

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not how things work in the UK. Traditionally, the internal realm of law was kept isolated from the international one, which means that the ratification of treaties could generate some obligations for the State in the international sphere in light of the 1969 Vienna Convention on the Law of Treaties, but not automatically vis-à-vis the people under its jurisdiction. From the continental European eyes, it is difficult to process that the rights contained in the 1950 European Convention on Human Rights were only incorporated into domestic law when Parliament adopted the Human Rights Act in 1998, even though the UK had ratified the Convention long before, in 1951.

ESCR are generally not Justiciable in the UK21 Parliament never debated an Economic, Social and Cultural Rights Bill; hence, the internal legal weight of these rights remains light, at best. Since the issue of justiciability was first raised in 1997, the UK has maintained the same policy in its periodic interaction with the CESCR: ESCR are not directly enforceable by courts, neither they should be.22 In its dialogue with the Committee in 2002, the UK delegation insisted on it: [The] Government was determined to comply with its obligations under the International Covenant on Economic, Social and Cultural Rights, but considered that the rights enshrined therein were not justiciable and that it was not for British judges to interpret the provisions of the Covenant. Unlike the European Convention on Human Rights, whose provisions were very specific, the Covenant was primarily concerned with more general commitments.23

And the UK responded to the CESCR’s 2009 Concluding Observations as follows: How to ensure compliance with the Covenant is a matter for each State […]. There is no provision in the Covenant obligating its comprehensive incorporation or requiring it to be accorded any specific type of status in national law. We consider that the United Kingdom’s method of

 21

See Claire-Michelle Smyth’s chapter for arguments for and against the justiciability of economic, social and cultural rights. 22 Summary record (27 November 1997) UN Doc E/C.12/1997/SR.36 [45]–[46]. 23 Summary record (14 November 2005) UN Doc E/C.12/2002/SR.11 [21].

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In the latest review by the CESCR, between 2014 and 2016, the UK stood by this position,25 something the CESCR expressed regret about, because in the Committee’s opinion, it may restrict access to effective legal remedies for violations of Covenant rights.26

The UK has also refused to ratify the 2008 Optional Protocol to the ICESCR, which would give individual victims of the violation of any of the rights recognised in the ICESCR the right to appeal to the CESCR. In the 2nd Universal Periodic Review of the UK in 2012, Spain recommended the ratification of the Optional Protocol,27 but the UK government rejected this recommendation because it remains unclear about the practical benefits of the right to individual petition to the UN.28

The government used similar words when the issue was raised by the CESCR in June 2016.29 This was hardly surprising considering the position that the UK had adopted in the drafting process of the Optional Protocol. In 2005, for example, the UK expressed the concern that an individual complaint mechanism would allow the CESCR to examine domestic policies; together with other countries, the UK argued that international cooperation was ‘an important moral obligation but not a legal entitlement’; it ‘noted that some domestic remedies would be political in nature’; and called for

 24 Comments by the UK on the Concluding Observations (23 July 2009) UN Doc E/C.12/GBR/CO/5/Add.1, 2. The point had been made in the country report (31 January 2008) UN Doc E/C.12/GBR/5 [73]–[74]. 25 UK, State report to the CESCR (25 September 2014) UN Doc E/C.12/GBR/6 [11]. 26 CESCR, Concluding Observations: UK (14 July 2016) UN Doc E/C.12/GBR/CO/6 [5]–[6]. 27 Report of the Working Group on the Universal Periodic Review: United Kingdom of Great Britain and Northern Ireland (6 July 2012) UN Doc A/HRC/21/9 [110.26]. 28 United Kingdom Mid Term Report 2014, 9, 28 accessed 18 June 2017. 29 Summary record (21 June 2016) UN Doc E/C.12/2016/SR.36 [13].

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clear and careful criteria on standing and jurisdiction.30 In its final statement at the time of the adoption in 2008, the United Kingdom reserved its position on the draft [and] remained sceptical about the practical benefits of the protocol, considering that economic, social and cultural rights did not lend themselves to adjudication in the same way as civil and political rights.31

British distrust towards the justiciability of economic and social rights is also expressed at the European level. Within the Council of Europe, the UK has not ratified the 1995 Additional Protocol or the 1996 Revised European Social Charter, which means that, unlike in other European countries, the European Committee of Social Rights cannot deal with collective complaints from trade unions or NGOs sitting in the UK. Lord Goldsmith, who represented the UK in the drafting process of the EU Charter of Fundamental Rights in 1999 and 2000, admitted that his mandate was to do his best to ensure that the Charter did not make economic and social rights justiciable where they are not already justiciable;

In Goldsmith’s view, this was achieved by the distinction between rights and principles, ESCR belonging to this second group.32 In other words, the UK was going to accept the inclusion of ESCR in the Charter as long as they were not given the same status as civil and political rights. It is worth noting that the EU Charter has ‘the same legal value as the Treaties’ since the entry into force of the Lisbon Treaty in 2009 (Article 6(1) of the Treaty of the European Union). Just in case, as is well known, the UK and Poland pushed for the inclusion of Protocol No. 30, insisting that ESCR would not be justiciable unless they have been recognised as such by the laws and practices of these countries.

 30

Report of the open-ended working group to consider options regarding the elaboration of an optional protocol to the ICESCR on its 2nd session (10 February 2005) UN Doc E/CN.4/2005/52 [60], [76], [92], [103]. 31 Report of the open-ended working group to consider options regarding the elaboration of an optional protocol to the ICESCR on its 5th session (6 May 2008) UN Doc A/HRC/8/7 [246]. 32 House of Commons European Scrutiny Committee, The application of the EU Charter of Fundamental Rights in the UK: a state of confusion (HC 2013-14, 979) paras 29, 41-42.

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The Threat to Repeal the Human Rights Act is Working The Human Rights Act 1998 has been in the line of fire of the Conservative Party for years. The Act incorporates the European Convention on Human Rights and essentially contains the common wisdom of civil and political rights in international law. Apart from the fact that the Act largely ignores economic and social rights (with the exceptions of private property and the right to education), there is no reason to believe that a different piece of legislation could protect civil and political rights more effectively. However, soon after it got to power, the Tory-LibDem coalition announced the appointment of a commission mandated to think through possible alternatives for a UK Bill of Rights. The commission ‘was unable to reach agreement, or indeed even come close’, as put by its two outspoken dissenting members.33 But the Conservatives came back to it and in the 2015 campaign they promised to scrap the Human Rights Act and curtail the role of the European Court of Human Rights.34

One of the latest proposals was announced during the 2016 Conservative Party Conference: The UK could somehow try to shield British soldiers from compliance with the European Convention of Human Rights, which would be contrary to the Convention itself.35 The Conservative Party has been vociferous in its threats to get rid of the Human Rights Act and its attacks against the Strasbourg-based Court. To this day, however, the Government has not followed through and the Act remains in force. Furthermore, whatever happens to the Act, no party or Cabinet member could prevent British judges from taking into account the Convention or any ruling of the European Court of Human Rights.36

 33

Philippe Sands and Helena Kennedy, ‘In Defence of Rights’ (2013) London Review of Books 19. 34 The Conservative Party Manifesto 2015, 58. 35 ‘Plan for UK military to opt out of European convention on human rights’ The Guardian (London, 4 October 2016). See also the correspondence between the Chair of the Parliamentary Joint Committee on Human Rights, Harriet Harman MP, and the Secretary of State for Defence, Michael Fallon MP, regarding derogation from the European Convention on Human Rights (October and November 2016) accessed 14 June 2017. 36 See Conor Gearty, On Fantasy Island: Britain, Europe, and Human Rights (Oxford University Press 2016).

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Nevertheless, the threat to repeal the Human Rights Act has proven extremely effective at keeping the human rights community at bay. The fear of seeing the Act scrapped and the possibility that the UK might even denounce the Convention altogether, which would take the UK out of the Council of Europe, has forced human rights groups in the UK to adopt a defensive strategy accurately symbolised by the hash tag #SaveTheAct. In conversations with lawyers and officers of some other human rights organisations, one can often hear that this is not the time for a shopping list of rights. In their opinion, we should not advocate the judicial enforceability of economic and social rights. We should instead focus on maintaining the existing standards for civil and political rights. There are very good reasons to remain cautious given the political environment, but we should not turn a blind eye to existing opportunities to reframe and detoxify the debate about the meaning of human rights. At Just Fair we believe in the indivisibility and interdependence of all human rights. We would not accept a step back from the level of protection provided by the Human Rights Act, but economic and social rights are not part of any shopping list. Housing, health and education deserve just as much legal protection and accountability from government as fair trial, freedom of expression and private and family life. We hope to see the human rights community embrace these ideas and advocate an equal protection of all rights in light of the highest international standards.

The UK is not leaving the EU in order better to Protect Economic and Social Rights More than 17 million people voted to leave the European Union on 23 June 2016. It is simply not possible to know for sure what motivated each individual to cast their vote, but judging by the campaign messages, it is safe to say that the UK is not leaving the EU in order to protect human rights better. For example, the infamous promise to give the NHS the £350 million a week that would thereby be saved was soon thrown into the bin.37 At the time of this writing, the government is expected to submit a ‘Great Repeal Bill’, which will automatically incorporate the acquis communautaire into domestic law when Brexit takes effect.38 From that

 37

‘Vote Leave leaders slammed for abandoning '£350 million' NHS funding promise’ The Mirror (London, 11 September 2016). 38 ‘Theresa May's 'great repeal bill': what's going to happen and when?’ The Guardian (London, 2 October 2016).

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point on, a reinvigorated Parliament would have to decide whether to modify or erase each piece of law originally born in Brussels. Britain outside the EU will still have to abide by the international human rights obligations acquired through the United Nations and the Council of Europe. It remains to be seen what direction is followed once EU Law no longer binds the UK. It is too early to tell, but there is no reason to believe Brexit will bring about anything good for economic and social rights. Concerns have been expressed that, in the name of productivity, in the future the UK may feel tempted to weaken the EU labour and gender equality laws, such as the Working Time Directive 2003, the Temporary Agency Work Directive 2008, the Pregnant Workers Directive 1992, the Part-Time Workers Directive 1997 or the Parental Leave Directive 2010.39 Be that as it may, Brexit or the threat of Brexit might be affecting people’s lives through their pockets. As a by-product of the uncertainty generated, a weak Sterling may raise the price of primary goods whose purchase is unevenly distributed among rich and poor in society. Socioeconomically vulnerable households devote a larger share of their disposable income to imported goods, which are more affected by the spike in prices, and therefore a falling Pound might result in indirectly discriminatory consequences. Nevertheless, there are multiple factors at play, and official statistics for now suggest there is no compelling evidence of this correlation at this point.40 In the meantime, human rights will play a key role in the process too. Exiting the European Union would have important implications for the rights enjoyed by British citizens and residents. This is actually one of the most important reasons why the High Court established, and the Supreme Court confirmed, that the Parliament had to give approval to trigger Article 50 to withdraw from the EU.41



39 See Joint Committee on Human Rights, The human rights implications of Brexit (2016-17, HL 88, HC 695); and House of Commons Women and Equalities Committee, Ensuring strong equalities legislation after the EU exit (HC 2016-17, 799). See also the submissions received by these Committees in their inquiries. 40 Office for National Statistics, ‘Why has the value of the pound been falling and what could this mean for people in the UK?’ (28 October 2016) accessed 14 June 2017. 41 R (Miller) v. Secretary of State for Exiting the European Union [2016] EWHC 2768 (3 November 2016) [92]–[94]; [2017] UKSC 5 (24 January 2017).

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But Four Opportunities as well… Civil Society Engagement with International Human Rights Mechanisms In recent years, an energetic civil society has interacted often with international human rights bodies, providing persuasive evidence about the UK’s lack of compliance with international human rights obligations in relation to economic and social rights. Since 2014, Just Fair has convened a Consortium of nearly 80 national and local organisations in England. The Just Fair Consortium produced reports on the right to food and over-dependence on food banks, the right to housing, and rights of people with disabilities in the austerity era.42 The Consortium also adopted an active role in the UN’s review of the situation of economic and social rights in the UK, which culminated in the Concluding Observations of the CESCR in summer 2016. The CESCR echoed many of the concerns expressed by the Consortium, as well as the shadow reports prepared by about 25 other groups.43 The Concluding Observations can become a powerful advocacy tool for civil society groups. Many organisations and coalitions, including Just Fair, have also submitted their contributions to the Universal Periodic Review of the UN Human Rights Council, which examined the UK in May 2017.44 The joint report produced by the British Institute of Human Rights, for example, gathered information provided by 175 groups, Just Fair among them.45 Just Fair’s engagement with university students and training events with organisations of the voluntary sector have taught us that many people are open and willing to explore and apply a human rights-based approach to social justice.46

 42

Just Fair accessed 14 June 2017. Find all documents of the CESCR’s review of the UK between 2014 and 2016 here: accessed 14 June 2017. 44 UPR-Info accessed 14 June 2017. 45 ‘UK failing on many human rights measures, report claims’ The Guardian (London, 22 September 2016). 46 In the past, international human rights bodies like the CESCR have made recommendations that were later implemented by UK authorities. Find examples in Just Fair, What are economic & social rights and how are they recognised in international law? (February 2017) accessed 14 June 2017, 3. 47 Merris Amos, ‘The Second Division in Human Rights Adjudication: Social Rights Claims under the Human Rights Act’ [2015] Human Rights Law Review 549. 48 R (Carmichael and Rourke) v. Secretary of State for Work and Pensions [2016] UKSC 58 (9 November 2016). 49 R (SG et al) v. Secretary of State for Work and Pensions [2015] UKSC 16 (18 March 2015) [78]–[91]. 50 ibid [112]–[133].

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have the potential to illuminate our approach to both discrimination and justification.51

Lord Kerr added that, despite the seemingly comprehensive ban on the use by the courts of unincorporated international treaties to recognise rights on the domestic law plane, there are three possible ways which have been considered by the courts in which such treaties may have an impact on national law–(i) as an aid to statutory interpretation; (ii) as an aid to development of the common law; and (iii) as a basis for legitimate expectation

that authorities will take ratified human rights treaties into account in the exercise of their powers; therefore, at least some treaties should be ‘directly enforceable in UK domestic law’ regardless of the lack of an Act of Parliament.52 The traditional dualist separation between international and national laws is no longer that clear-cut in the opinion of some members of the highest judicial authority of the land. The opinions expressed by Lady Hale and Lord Kerr may indeed contribute to raising the legal profile of the ICESCR in front of national courts, but this would require legal practitioners to refer much more to the General Comments of the CESCR and to the growing case-law on economic and social rights in other jurisdictions.53

An Energised Civil Society Austerity and rising inequality have angered and invigorated civil society. Following the footsteps of the Occupy movement in the UK and throughout the world, thousands of people have organised themselves to champion equality, campaign for labour rights and demand fairer taxes. Many of them have decided to do so through political parties on the Left, particularly Labour and the Greens, whose membership numbers have gone up significantly in recent years. The 2016 British Social Attitudes Survey showed that more than 76% of people believe there is a wide divide between social classes, and the share of people who disagree with the idea that the government should spend more money on welfare for the poor went down from 43 to 31%

 51

ibid [218]. ibid [238], [257]. 53 ESCR-Net case-law database accessed 14 June 2017. 52

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between 2009 and 2015.54 Poverty and social inequality is the greatest worry for 29% of the British people, according to Ipsos Mori.55 The concerns expressed by activists and the public in general fit within the human rights framing of social justice. Among other things, in its Concluding Observations of 2016, the CESCR condemned the adverse impact of recent changes to fiscal policies and welfare reforms, the restrictions to legal aid, the obstructive measures introduced in the Trade Union Act, or the decoupling between the National Living Wage and adequate living standards. The CESCR also expressed serious concerns about the disproportionate adverse impact that austerity measures, introduced since 2010, are having on the enjoyment of economic, social and cultural rights by disadvantaged and marginalized individuals and groups.56

As with other key political issues like Brexit, there are not definitive indications about the economic plans that Theresa May will pursue in office. Her declared desire to run a country ‘that works for everyone’ suggests that we may be entering into a post-austerity era. Irrespective of that, the reinvigorated civil society is unlikely to fade away, and the human rights discourse and instruments provided by international law could reinforce their advocacy toolbox.

From Non-Discrimination to Equality The principle of non-discrimination runs through the whole human rights regime. It is time to move on from non-discrimination to equality. Human rights defenders must elaborate the philosophical reasoning behind the link between equality and human rights. They must also back it up with sophisticated fiscal and socio-economic policy analysis. But the argument is firmly grounded on human rights premises.



NatCen’s 33rd annual British Social Attitudes report (2016) < http://www.bsa.natcen.ac.uk/latest-report/british-social-attitudes33/introduction.aspx> accessed 14 June 2017. 55 Ipsos Mori, ‘What Worries the World’ (September 2016) accessed 14 June 2017. Unfortunately, the same source indicates that Britain remains the country where immigration is reported as the most significant worry. It is so for 42% of the people. 56 CESCR, Concluding Observations (n 26) [18]–[19]. 54

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Socio-economic inequality can be a threat to human rights insofar as it constrains access to political participation; empirical research shows that inequality can be a cause and a consequence of human rights violations, and that inequalities and the exercise of civil and political rights are closely connected.57 The State is expected to guarantee the minimum core content of all economic and social rights, devoting ‘maximum available resources’ without discrimination to their progressive fulfilment (Article 2 ICESCR). Taking this requirement seriously would result in public policies that lead to greater substantive equality. Section 1 of the Equality Act 2010 sets out the duty of certain public authorities to have due regard to the desirability of exercising [their functions] in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage.

However, Section 1 has not yet been commenced, because when the Conservatives and Liberal Democrats reached power they refused to implement the socio-economic equality duty.58 Some of the civic energy accumulated during the years of inequality and austerity could be channelled through effective campaigning to bring Section 1 to life.59

Conclusion There are fundamental legal-constitutional and political obstacles to giving full effect to internationally recognised economic and social rights. While bound by many human rights treaties, the UK tends to shy away from their incorporation into the domestic realm of law. The UK has also maintained a consistent policy of scepticism as regards the justiciability of economic and social rights. The Conservatives’ threat to repeal the Human Rights Act has kept the human rights community in a defensive line for years.



57 Special Rapporteur on extreme poverty and human rights, Report on extreme poverty and inequality (2015) UN Doc A/HRC/29/31; Independent Expert on the effects of foreign debt and other related international financial obligations on human rights, Report on income and wealth inequality and financial crises (2016) UN Doc A/HRC/31/60. 58 Theresa May on behalf of UK government, ‘Socio-economic duty to be scrapped’ (17 November 2010) accessed 14 June 2017. 59 This is the reason why Just Fair and The Equality Trust launched the joint campaign #1forEquality in February 2017:

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And the prospect of Brexit raises concerns particularly for labour and gender equality laws. On the other hand, four opportunities beckon. The pool of groups and activists that document and provide evidence about the UK’s compliance with international human rights treaties is growing in number, visibility and rigour. Some members of the judiciary are opening up to take IHRL into account in their rulings. After years of austerity, a growing number of people are rediscovering an interest in politics, and some of them may be willing to explore a human rights path to policy analysis. Finally, human rights reasoning provides the basis for greater equality in our society. Economic and social rights are not a shopping list. They are human rights, embedded in human dignity and freedom, just like civil and political rights are. We live in volatile political times, and we face many challenges in the immediate future. But this time is exciting as much as uncertain. Human rights are not an all-encompassing political project called on to replace foregone ideologies, but society desperately seeks normative references, and human rights can provide some of the necessary guidance, discourse and mechanisms.



CHAPTER TWELVE PARENTAL RESPONSIBILITY, VULNERABLE PARENTS AND SCHOOL ATTENDANCE NIALL WILLIAMS

Introduction The aim of this chapter is to examine and trace how parental responsibility has developed as a concept within England and Wales and its legal system. The chapter will focus on an area of law which is increasingly discussed both in media and academic circles, the holding of parents quasicriminally responsible for their children’s non-attendance at school. Parental responsibility is a fluid concept which can be adapted over time and which has come under many guises. It is interesting that when it was enacted as part of the Children’s Act 1989 there was a consensus between the two major UK parties–Labour and the Conservatives–even though at the time on many issues there was a significant ideological divide. It can be argued that this was because both sensed they could shape this definition and that it could have very different meanings depending on who interpreted it. Within the Act parental responsibility was defined as ‘…all the rights, duties, powers and responsibility and authority which by law a parent of a child has in relation to a child and his property’. 1 Bridgeman stated how, [v]aguely defined in the Children’s Act 1989 and given content in cases of disputes arising in fragmented families, the concept of parental responsibility has developed into a confused, contradictory concept with little meaning in relation to the responsibility of caring for children.2

 1

The Children’s Act 1989, s3. Jo Bridgeman, ‘Parental Responsibility, Responsible Parenting and Legal Regulation’ in Bridgeman, Keating and Lind (eds), Responsibility, Law and the Family (Routledge 2016) 233, 237.

2



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This chapter will examine the various meanings of parental responsibility, assessing what its creation has achieved and its purpose. Parental responsibility itself stems from another contested and at times controversial area of parental rights. While discussing parental responsibility, tracing parental rights and the reasoning behind their introduction can be useful in understanding why concepts such as parental responsibility were originally created. Of course, it is also necessary to examine briefly what exactly is responsibility in the two areas of law which largely intersect in this topic, family law and criminal law. This gives us a wider understanding of how such a concept can then be transplanted into an area like the parent-child relationship. Parental responsibility can be molded to alternatively promote individual responsibility or state interference in its different forms and guises. One area of law to which it has been applied in an increasingly quasi-criminal fashion is school-non-attendance. There are still many doubts as to how effective it is in reducing non-attendance which is a multi-faceted and far reaching problem that can be societal, pathological and psychological as well as individual. Firstly, this chapter will examine the issue of parental rights and assess how they laid the foundation for a concept such as parental responsibility to be created.

Parental Rights In whose interest should laws governing the parent-child relationship be? How should these rights be shaped? When looking at the evolution of parental rights, it is important to at first acknowledge that they are the precursor to parental responsibility. Historically the predominant view was that parents had certain rights over their children as a form of property. This gradually developed alongside a move to increased childhood autonomy with parental responsibility becoming prominent within the law particularly with its introduction in the Children’s Act 1989.3 The challenge for law in regulating or interfering in parenting was referenced in judgments such as Re L4 where the Court stated that ‘Society must be willing to tolerate very diverse standards of parenting, including the eccentric [and] the barely adequate’ and that ‘…these are consequences of our fallible humanity and it is not provenance of the state

 3 4



CA 1989 (n 1). Re L (Care: Threshold Criteria) [2007] 1 FLR 20.

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to spare children all the consequences of defective parenting. In any event that couldn’t be done’.5 This shows the complex nature of state involvement with parental rights but then the lingering questions remain: what are the limits to parental rights and do they exist independently of responsibilities?

In whose Interests are Parental Rights? Identifying in whose interest certain rights are based can provide a useful background in learning more about a right and why and how it has developed within Law, as it can tell us about the background and reasoning behind why that right exists. As LW Sumner has stated, rights are always ‘(…) orientated towards their possessors (…)’.6 In the United States for example parental rights clearly developed for the first time federally in the 1920’s in cases such as Meyer v Nebraska7 in which parental rights were tied to the right to liberty which includes the freedom of bodily restraint, freedom to worship, establish a home and bring up a child.8 Linking parental rights to such an important right within the American constitution and psyche such as the right to liberty conveys a sense in many ways of the importance of this right. Many commentators have noted how there has been a marked shift from a position of parental rights to children’s rights with Guggenheim, an American family law scholar, being critical of this approach as the title of his leading work suggests: ‘What’s wrong with Children’s Rights?’9 Guggenheim states that now children’s rights are the ‘(...) most protected and cherished’,10 believing that parental rights should be paramount and children’s rights should be minimalist as parents act in most cases in the child’s best interest. In contrast, Freeman in his critique of Guggenheim’s work has highlighted the value of independent rights for children arguing that [i]t has always been to the advantage of the powerful to keep others out. It is not, therefore, surprising that adults should want to do this to children;

 5

ibid 50. LW Sumner, The Moral Foundation of Rights (Clarendon Press 1987) 47. 7 Meyer v Nebraska 262 U.S. 390 (1923). 8 ibid 400. 9 Martin Guggenheim, What’s Wrong with Children’s Rights? (Harvard University Press 2005). 10 ibid 23. 6



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Chapter Twelve that they should wish to keep them in an often imposed and prolonged dependence which history and culture show to be neither inevitable nor essential.11

Others such as Callus state that these rights are always interlinked: ‘Parents have no independent rights and interests as it is tied up to the responsibility they have towards their children’.12

Children’s Rights and Parents Rights An obvious conflict is that between the child and the parent and which right receives precedence. One case that helps illustrate distinctions between parental rights and responsibilities is Gillick.13 This case involved a mother in the 1980’s who took a case against her local NHS Trust on that basis that she felt her teenage daughters should not be allowed contraception without her consent. This judgment is an interesting one in that it provided judicial analysis as to the nature of parental rights. Here Scarman J stated that ‘The principle of the law, as I shall endeavour to show, is that parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child’.14 He also highlighted some of the problems of this balancing act stating that The law relating to parent and child is concerned with the problems of the growth and maturity of the human personality. If the law should impose upon the process of “growing up” fixed limits where nature knows only a continuous process, the price would be artificiality and a lack of realism (…)’.15

At the time of the judgment the Children’s Legal Centre deemed it ‘a landmark decision for children’s rights’16 whilst Eekelaar highlighted how the judgment in the case helped clarify what happens when children’s and parents’ rights are in conflict, with Scarman J stating that a ‘parental right



11 Michael DA Freeman, Review of What's Wrong with Children's Rights? by Martin Guggenheim (2006) 3 International Journal of Law in Context 89, 89. 12 Therese Callus, ‘First “Designer Babies”, Now A La Carte Parents’ (2008) 38 Family Law 143. 13 Gillick v West Norfolk and Wisbech AHA [1986] AC 112 v West Norfolk and Wisbech AHA [1986] AC 112. 14 ibid 184B. 15 ibid 186B. 16 Children's Legal Centre, ‘Landmark decision for children's rights’ (1985) 22 Childright 11.



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yields to the child's right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision’.17 However it would seem that some of these ideas regarding the child’s self determination have been limited by judgments such as R (Axon) v Secretary of State for Health18 which go to great lengths to highlight parental involvement in the decision making process. In this case, which concerned children under 16 accessing information about abortion and contraception without their parent’s knowledge,19 Silber J clearly stated that there was nothing in his judgment which would encourage young people not to first have a discussion with their parents before seeking advice or treatment and that ‘(...) in the overwhelming majority of cases, the best judges of a young person’s welfare are his or her parents’.20 Whilst acknowledging the role of the parents, he made clear that there were practical reasons for adopting this regime, stating that if confidentiality was not a possibility, it would mean that young people might not consult medical help as they would not feel able to talk to their parents about sexual issues or would not seek help if they felt their parents would know.21 This could mean that this judgment is primarily concerned with deciding what is in the best interests of the child and their health rather then granting them a right to autonomy. It is clear that the judgment acknowledges particularly European Court of Human Rights (ECHR) jurisprudence as stated in the case Youssef v Netherlands22 which stated that in ‘(...) judicial decisions where the rights under Article 8 of parents and of a child are at stake, the child's rights must be the paramount consideration’.23 Also within the case law there is what many would view as a logical viewpoint that as the child gets older their influence in decision making grows. Lester and Pannick state: ‘As the child matures the burden of showing ongoing family life by reference to substantive links or factors grows’.24 In Gillick this was made clear by Fraser LJ who clearly noted

 17

Gillick (n 13) 855. [2006] EWHC 37 (Admin) in (2006) 102 Law Quarterly Review 4. 19 ibid [86]. 20 ibid [2]. 21 ibid [7]. 22 Youssef v Netherlands (2003) 36 EHRR 20. 23 ibid 73. 24 Anthony Lester and David Pannick, Human Rights Law and Practice (2nd ed, LexisNexis 2004) 48. 18



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how time and social policy can change25 and Scarman LJ who described parental rights as a ‘dwindling right which the Courts will hesitate to enforce against the wishes of a child and more so the older he is’.26 Fraser LJ also made clear that that right goes when the child is able ‘(...) to make his own decisions when he reaches a sufficient understanding and intelligence’.27 In this section the chapter has examined the case law and judicial interpretation of the issues faced in defining and contrasting parental responsibility and parental rights. In the next section this chapter will examine how conceptually this issue has been examined within academic discourse.

Parental Responsibility and Parental Rights Reece has noted how in her view ‘Parental Responsibility ousted parental rights as the dominant legal conception of the parent-child relationship’.28 Commentators such as Blustein have made the interesting comparison that ‘(…) the interest protected by parental autonomy is here the parent’s interest, just as the interest protected by the right of private property is the property owner’s interest’.29 This in many ways returns to the view of parental rights or autonomy to a certain extent being about having control over the child within the parent-child relationship. In the early nineties, while parental responsibility was still at the forefront and linked to parental authority, Freeman warned that ‘We clearly have to get away from the notion of children as consumer durables, completing a family after the CD player and video recorder’.30 Echoing this statement, Herring opines that ‘children are not possessions to be controlled by parents, but instead children are persons to be cared for’.31 However, rather than enhancing children’s rights and curtailing parental rights, parental responsibility, or as Reece aptly describes it the later incarnation of parental accountability, brought in a greater role for the

 25

Gillick (n 13) 171F. ibid 172D. 27 ibid 186D. 28 Helen Reece, ‘From Parental Responsibility to Parenting Responsibly’ in M Freeman (ed), Law and Sociology: Current Legal Issues 2005 (Oxford University Press 2006) 459. 29 Jeffrey Blustein, Parents and their Children (Oxford University Press 1982) 5. 30 Michael DA Freeman, ‘In the Child’s Best Interests? Reading the Children’s Act Critically’ [1992] Current Legal Problems 173, 185. 31 Jonathan Herring, Family Law (3rd ed, Pearson 2007) 376. 26



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state, holding parents ‘responsible’ for their children’s actions.32 The start of the emergence of this strand of policy came in 1991 with concepts such as ‘binding overs’ and ‘parental orders’ emerging under successive Governments both Conservative and New Labour. As Reece noted this marked a distinct shift from parental responsibility to parenting responsibly.33 One of the first examples of this approach came under the Criminal Justice Act 1991 which introduced the ‘binding over’ order, an archaic practice which originated in Anglo-Saxon times and was revamped for parental responsibility.34 It basically involves an individual making a legally binding promise and if they fail to keep the promise they must forfeit a sum of money. The amount could be anything up to £1,000. This process was criticised by many groups at the time and a cautionary article appeared in the Times which warned that it ‘(…) could have an effect in hastening a breakdown of family relationships’.35 This trend however was continued in 1997 when Labour won a decisive landslide victory ending almost 18 years of Conservative rule. The use of parental responsibility as a political tool was evident under Labour, the then Home Secretary Jack Straw stating that parental orders ‘would provide a mechanism for coercing parents who are “unwilling” to address their child's behaviour’.36 Juvenile Justice however was still a significant policy area and was part of the Labour policy pamphlet labeled ‘No More Excuses’ which sought to deal with what was then deemed to a be a major problem (the socalled excuse culture). Parental responsibility was central to these reforms as Hakkert highlighted writing in 1997, the year the bill was drafted. Also noted were the restorative justice elements of the reforms such as youth offending teams and the setting up of the Youth Justice Board, and the voluntary services and courses for parents such as Home Start.37 Commentators at the time highlighted how some of these parenting courses could be problematic as they only presented one view of what was

 32

Reece (n 28). ibid. 34 The Criminal Justice Act 1991, s58. 35 The Times (London, 10 November 1990). 36 Raymond Arthur, ‘Punishing Parents for the Crimes of their Children’ (2005) 44 The Howard Journal of Criminal Justice 233, 236. 37 Alfred Hakkert, ‘No More Excuses: A new approach to tackling youth crime in England and Wales–a summary’ (1998) 6 European Journal on Criminal Policy and Research 279, 283. 33



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‘good parenting’ and taught the family this view rather than involving and engaging them in the process.38 This act was also central to the criminalization of parents regarding parental orders. These came into being under the Powers of the Criminal Court (Sentencing) Act 2000 which retained provisions for binding overs,39 but also a new mechanism which had been created in 1998 called the Parenting Order.40 There are three areas in which such an order can be made namely child safety, sexual or anti-social offences and finally if a young person is convicted of non-attendance at school or an offence under the Education Act.41 The main motivation behind the order is to prevent reoffending and make the parent pro-active in achieving this prevention. The order can include ordering the child and the parent to attend counseling, for example.42 There is also a requirement that judges or magistrates issue such orders in clear and normal English. This hints at how the Government saw this as a way of law directly influencing policy outcomes by using the law as a tool for both a change in policy and reducing offending rates. A central tenet to these policies was that they gave the parent more autonomy. They were the ones for example that now made decisions regarding their children and therefore they had to take responsibility for their children’s actions. Fineman firmly rejects the idea of autonomy labelling this autonomy based argument ‘(…) an inflammatory characterisation that does little more to obscure than to illuminate the issue’.43 In her work ‘The Autonomy Myth’44 Fineman critiques what she views an illusion of autonomy which instead, in her view, creates dependency absolving the state of responsibility and promoting individual responsibility which leads blame to be foisted upon families and in many cases, single parents. Her argument instead is that there should be a more collaborative approach with public responsibility or state responsibility for dependents in addition which could include state support and subsidised childcare. Regarding the laws on parental responsibility, she notes that parental responsibility is ‘(...) implemented into laws which can be used at

 38

Clem Henricson and others, ‘Parenting in the Youth Justice Context’ (2000) 39(4) The Howard Journal 325, 330. 39 The Powers of The Criminal Court (Sentencing) Act 2000, s150. 40 The Crime and Disorder Act 1998, s8. 41 ibid s1. 42 ibid s4(b). 43 M Fineman, The Autonomy Myth: The Theory of Dependency (The New Press 2004) 301. 44 ibid.



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the relatively unfettered discretion of various state actors to undermine, even usurp, parental decision making authority’.45 Cases such as Gillick addressed the issue of parental rights stating that ‘(…) they enable the parent to perform his duties towards the child, and towards other children in the family’.46 This statement interestingly can be traced back to Blackstone’s Commentary of 1830.47 This would appear to suggest that parental rights are rooted in autonomy, enabling parents and giving them the freedom to partake in these duties. However, when Fineman’s critique is applied to the issue at hand, it is evident how such a concept rather than giving freedom can also assign blame and target vulnerable populations. Having already discussed briefly some of the reasoning and justification behind the introduction of parental responsibility and contrasting it to parental rights the next section will examine in general the concept of responsibility and how it came to be adapted and moulded to develop the idea of parental responsibility.

Responsibility as a Concept When examining responsibility as a concept it necessary to look at the two main types of responsibility that exist. Historical responsibility which Eekelaar associates with accountability, answerability and liability and prospective responsibility which defines a person’s role.48 Historical responsibility is about holding someone responsible for past events and actions whilst prospective responsibility is more about defining an individual’s role and having them acknowledge what they are responsible for.49 Prospective responsibility is often related to the idea that ‘(…) prevention is better than cure’.50 Cane writing on the topic of responsibility within law generally states that ‘a well-functioning and successful legal system is one in which non-compliance with prospective responsibility, and hence occasions for the imposition of historical responsibility are minimised’.51

 45

ibid 301. Gillick (n 13) 170. 47 ibid. 48 John Eekelaar, Family Law and Personal Life (Oxford University Press 2006) 103-104. 49 ibid. 50 P Cane, Responsibility in Law and Morality (Hart 2002). 51 ibid. 46



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One of the key dilemmas is attempting to define what exactly is a responsible person and how should such an individual be defined in a nonbinary and complex world. Jurists such as HLA Hart have attempted to define a responsible person within the context of the law, stating that ‘a responsible person is one who is disposed to take his duties seriously, to think about them and to make serious efforts to fulfill them’.52 Obviously, this presupposes many things. Is the individual aware of his duties which some would say could be linked to a false idea of the importance of the law? Is the fulfillment of these duties moral or legal and when should the law intervene? Other commentators such as Gorecki have said that prospective responsibility in cases like divorce or child care can be used as a tool of recrimination stating that: ‘Their punishment conveys a message to general society: (…) minimum of responsibility is anyone’s family obligation and so is the effort to avoid inflicting suffering on one’s spouse and children wrecking lives’.53 In some aspects, this could be an effective tool of control according to proponents of parental responsibility being used as a concept for school non-attendance. For example, does holding parents quasi-criminally responsible encourage better parenting or encourage parents to be more proactive about sending their children to school? On the other hand, this presumes parents are aware of the law and aware that they are responsible in whatever way the law deems when it could be suggested many are simply oblivious to the law in question. A further question that is central to the concept of responsibility is the key question of what is the difference between responsibility and blame? Eekelaar in his text explores the concept of responsibility54 and how it has evolved with divorce law. He examines covenant marriages in the Southern United States. These are marriages where parties agree to a covenant which sets out the duties and responsibilities of each spouse and can only be broken if one of these responsibilities is not fulfilled, so this makes the circumstances limited. These types of marriages interestingly shy away from the idea that an individual is to blame, for having an affair for example, and instead it creates a notion of a responsible couple and lists responsibilities that they adhere to. This also raises a question of what

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HLA Hart, Punishment and Responsibility (Oxford University Press 1968) 213. J Gorecki, ‘Moral Premises of Contemporary Divorce Laws: Western and Eastern Europe and the United States’ in JM Eekelaar and SN Katz (eds), Marriage and Cohabitation in Contemporary Societies: Areas of Legal, Social and Ethical Change (Butterworths 1980) ch 13. 54 Eekelaar, Family Law and Personal Life (n 48) 108. 53



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is the difference in punishing someone or holding them responsible. This is quite an interesting legal development as rather than using responsibility in relation to blame, it creates an almost contract law approach. Would it be possible to adapt this approach to other issues and for example could it work for the issue in this chapter, namely, school non-attendance? While examining such an issue it is true that perception is critical. Cane has stated ‘(…) that although punishment implies blame and fault, responsibility does not’.55 Whilst this statement holds true when talking in everyday language, within law the term ‘responsibility’ has been used to imply blame and responsibility and carries in many ways the associated stigma of blame, so perhaps the line like others in law is increasingly being blurred. Whilst covenant marriages could be a collective collaborative approach between two individuals who draw up the document together, the problem is that the success of the document is dependent on both parties fulfilling their own individual responsibilities. In this section of the chapter responsibility in general was discussed and examined briefly as to how it developed as a subject. In the following section this chapter will explore how this relates to parental responsibility and begins by asking what responsibilities should parents have?

What Responsibilities should Parents have? When engaging with the concept of parental responsibility, it is critical to first ask what duties should a parent have and furthermore what interest do they have in the parent and child relationship. Currently under statute in England and Wales there is of course a requirement that parents provide basic items like food, clothes and shelter and this is clearly defined in s1 of the Children’s & Young Persons Act 1983. This echoes a view that some such as MacLeod call the Minimum Provision Thesis in which it is argued that the interest and role of the parent is providing these essential items and that therefore the state’s role in this should be limited and curtailed.56 Others however such as Archard suggest that parents have an interest which is interlinked with parenting. He states that (…) parents have an interest in parenting–that is, in sharing a life with, and directing the development of their child. It is not enough to discount the

 55

ibid 110. CM MacLeod, ‘Conceptions of Parental Autonomy’ (1997) 25 Politics and Society 117. 56



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In this way academics such as Archer have demonstrated the interlinked and complex nature of interests within the parent-child relationship, acknowledging that while parents have rights, they also have an element of self-interest regarding becoming and wanting to be a parent. This view that parents have their own unique interest in parenting is shared by MacLeod who in his works seeks to engage whether parents have their own autonomy and examines whether such a concept can be used. He states that parents ‘(…) have an interest in the family as a vehicle through which some of their own distinctive comments and convictions can be realised and perpetrated’.58 Guggenheim has also examined how in many ways parental responsibility recognises parenthood stating that ‘(…) a myriad of legally significant consequences follow from formal recognition of parenthood’.59 This myriad can consist of many basic things such as food and clothes for children and issues linked to pregnancy as highlighted by McCall.60 Heretofore, this chapter has examined the parental-child relationship and briefly the issue of parental rights discussing the reasoning behind that idea. Now this chapter will turn to the question of what exactly is the purpose of parental responsibility.

The Purpose of Creating Parental Responsibility A good place to start in relation to understanding or attempting to ask why should the state create parental responsibility is to examine the purpose or reasoning behind creating such a concept. Is it the state defining clearly what is responsibility or the opposite: defining what is irresponsible in order to set out clearly what the expectations of the state are? Is the creation of such a concept about clearly defining a parent’s duty and defining and enhancing this duty within the law? Or rather is it to shift blame, in other words hinting at what is irresponsible and targeting vulnerable groups?

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D Archard, Children, Family and the State (Ashgate 2003) 97. MacLeod (n 56) 120. 59 Guggenheim (n 9) 20-23. 60 ibid, quoting from A McCall Smith, ‘Is Anything Left of Parental Rights?’ in E Sutherland and A McCall Smith (eds), Family Rights: Family Law and Medical Advance (Edinburgh University Press 1990). 58



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Raz, for example, makes the point that ‘[s]urely what counts, from the point of view of the person in authority, is not what the subject thinks but how he acts. I do all the law requires of me if my actions comply with it.’61 This sort of sentiment would seem to favour a more active role both for the law and for the state, clearly defining in essence what parental responsibility is and creating a duty or standard. Gardner however echoing the post liberal approach we have seen previously returns to this idea of self and describes responsibility as ‘the ability to (…) give an intelligible account of oneself (…) as a rational being’.62 This viewpoint however as we have seen with parental responsibility can be quite abstract as it does not really examine the issue of why something is responsible? Who deems something or someone to be responsible? Stemming from this are other questions which as we have seen in the previous section academics such as Reece and Fineman have highlighted, giving rise to scenarios where the state has a wide range of discretion regarding parental responsibility. This section and the previous one have engaged with the debate about parental responsibility and the nature of it. Central to this question is the debate as to what exactly is parental responsibility. Is it about giving the parent their own individual role limiting state interference and giving the individual more say in relation to their family? On the other hand, is it more about the state further defining and extending its hand in relation to the family and entrenching it and controlling it? This can lead to the point of creating a nanny state where there is potential for the state to become overbearing and infringe on the parent-child relationship. In the next section this chapter will explore how Eekelaar, one of the leading scholars in family law in England and Wales, has examined parental responsibility and how it is related to the law.

Eekelaar’s Tale of Two Parental Responsibilities One of the seminal writings on parental responsibility is Eekelaar’s ‘Parental Responsibility, State of Nature or Nature of the State’.63 He traces the development of the concept of parental responsibility looking at how it evolved from the Illegitimacy Report of 1982. This report interestingly included the term ‘authority’ in the definition of what was

 61

Joseph Raz, The Morality of Freedom (Oxford University Press 1986) 39. John Gardner, ‘Hart and Feinberg on Responsibility’ in MH Kramer and others (eds), The Legacy of HLA Hart: Legal, Political, and Moral Philosophy (Oxford University Press 2008) 121, 123. 63 John Eekelaar, ‘Parental Responsibility: State of Nature or Nature of the State?’ (1991) 13 Journal of Social Welfare and Family Law 37. 62



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then deemed parental powers, authority and responsibility.64 As mentioned earlier the Children’s Act 1989 brought parental responsibility into statute. This definition, as this chapter has identified previously, has the potential to be open to interpretation and moulded into different shapes. Eekelaar identifies two distinct and contradictory meanings of parental responsibility. The first meaning is more based on the idea that parents should act dutifully towards their children.65 It is a more prospective type of parental responsibility in that it lays out the duties or powers the parent has and makes clear that these are based on a sentiment that is to protect the children and both their moral and material self. This viewpoint as Reece succinctly pointed out could be linked to this idea of the parent as an authority figure who has duties or obligations towards the child.66 This approach as we shall see from the definitions provided, favours establishing parental responsibility as a vaguely defined concept but interestingly also attempts to set out clear duties and powers of the parent. A good example of this definition is that agreed by the Committee of Ministers of the Council of Europe which defined parental responsibility as ‘(...) a collection of duties and powers which aim at ensuring the moral and material welfare of the child’. This included ‘(…) personal relationships, providing for education, maintenance, his legal representation and administration of property’.67 The second concept of parental responsibility is a viewpoint that promotes individual responsibility on behalf of parents instead of the state. This approach favours less government interference making clear that family is a distinct and separate entity from the state and this private nature should be respected. In essence this approach is about defining the role that a parent plays rather than regulating the actual parent. In this way, it favours less interference on behalf of the state. Eekelaar cites two definitions from the then Conservative Government’s policy and parliamentary documents, one a consultative document and the other a white paper. The Review of Childcare Law document created by the Department of Health and Social Services stated that parents had ‘(...) natural and legal responsibility to care for their own children’.68 In 1987 a

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ibid. Reece (n 28) 460. 66 ibid. 67 Committee of Ministers of the Council of Europe, Parental responsibilities (Recommendation no R(84) 4, 28 February 1984). 68 Department of Health and Social Services, Review of Childcare Law (1985) [28]. 65



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later White Paper echoed this argument stating that ‘(…) prime responsibility rests with parents’.69 These policy documents and white papers convey a sense of the reasoning behind government policy and how it was believed that parents and not the state was where responsibility should lie. This contrasts significantly from the alternative approach which rather than limiting the state’s powers and almost detaching itself clearly moves toward defining it and giving the state a role. Eekelaar in his concluding remarks notes how [t]here is no comparable legislation in our family law which has undergone such extensive and skilled preparation, and which demonstrates such a firm grasp of the interconnections between aspects of law hithero considered discrete areas on behalf of the state and between the substantive law and its practice.70

He highlights how the reforms have brought about change not just in practical terms as this chapter has previously discussed but also in reducing in his view the supposed amount of control which the state has over parents. In this argument, he cites remarks from the Secretary of State that ‘…the bill’s emphasis on the primary function of parenthood will we hope, sharpen our perceptions and highlight the obligation on parents to care for their children and bring them up properly’.71 Eekelaar in this way conveys a sense of the complexities of the current legal approach and suggests, which is intriguing with hindsight given how the law in this area has developed, that the law could be used to bolster and create new reforms. He is also hinting how the law, despite being written with the overall aim of favouring limited involvement on behalf of the state, thus tilting towards attaching itself to the second definition of parental responsibility, is also reflective of the former approach given the explanation of parental responsibility defined in the Children’s Act 1989. Eekelaar’s article was written at a time when parental responsibility as defined by the Children’s Act was a fresh and somewhat uncertain concept. In the next section this chapter will look further at the debate around the purpose of responsibility. Following in particular New Labour’s rise to power in the 1990’s the definition of this concept would change and evolve. Academics such as Reece were at the forefront of exploring how the concept had changed and been moulded from its older basis of being linked to individual responsibility and limiting the role of

 69

The Law on Childcare and Family Services (Cm 62, 1987). Eekelaar, ‘Parental Responsibility’ (n 63) 48. 71 ibid, 49. 70



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state in childcare. She traces how in many ways rather than limiting the state’s role in parenting or the state interfering within the family unit, parental responsibility was used as a concept to promote state involvement and interference.

Parental Responsibility: A Source of State Involvement? Reece in one of her main texts on the topic of responsibility regarding divorce law labels the current system post liberal.72 She states that it creates this idea linking responsibility to the suggestion that you are expressing or being your so called ‘true authentic self’. This relationship is quantified though as not becoming selfish or self-promoting and includes thus an idea that your authentic self includes your relationship to others.73 It means that whilst you have for example freedom of divorce you should attempt to use it responsibly. Eekelaar notes how the state attempted with regard to divorce to introduce the idea of a reflection period before the final decision, however this was not fruitful following pilot studies.74 This could highlight the dangers of an individualised approach in that it fails to consider the wider family. For example, the divorce or marriage is up to the individuals to be responsible and conduct themselves in such a manner and they are the ones responsible for whether this succeeds, not society or their wider family who do not have a role. Whilst in regards to divorce this has perhaps become the norm (that in such a complex relationship it is down to the individuals to decide), a question remains in this individualistic post liberal system what role is there for the state within the family relationship. In the next section this chapter will attempt to address this point examining an issue where the state has attempted to interfere in the form of a quasi criminal approach regarding the issue of school-non-attendance and adapted the concept of parental responsibility for this purpose.

 72

Helen Reece, Divorcing Responsibly (Hart 2003). This is discussed in wider detail in ibid 84-125. 74 John Eekelaar, ‘Family Law: Keeping Us ‘‘On Message’’’ (1999) 11 Child and Family Law Quarterly 387. 73



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Is Parental Responsibility a Concept Suitable for Non-Attendance? Parents can be held criminally responsible for non-attendance of their children at school.75 This of course raises all kinds of question such as–is this blaming the parent and does this serve the interest of the child or indeed the wider community? Within the case law there have been a number of cases where mothers have been prosecuted for non-attendance even though their child was violent to them76 or was themselves a victim of bullying.77 Many have criticised this approach including Hollingsworth who has stated that Parental Responsibility should not be used as a mask to control and police the activities of children but to support them. As such, it is inappropriate to use the criminal justice sphere to coerce or encourage certain types of parenting.78

There is also an argument that placing criminal responsibility upon parents is a quick fix or easy method to mask other problems or inequalities that may exist. Monk highlights this saying that When law speaks of “parental responsibility”, it appeals to an abstract universal construct. Yet locating ways in which it has been understood in history to the present day demonstrates that its uses and meanings have always been contingent, ambivalent and directed at shifting problem populations.79

The next section of this chapter will examine the offence of nonattendance and how parental responsibility has become used increasingly regarding criminalising parents for their children’s non-attendance.

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The Education Act 1996, s444(1), which reads that ‘(…) if a child who is a registered pupil at a school fails to attend regularly at a school, his parent is guilty of an offence’. This offence is of strict liability and the maximum fine is £1,000. 76 Sutton Borough Council v S [2007] EWCA Civ 790. 77 R v Leeds Magistrates Court [2005] ELR 589. 78 Kathryn Hollingsworth, ‘Responsibility and Rights: Children and their parents in the Youth Justice System’ (2007) 21 International Journal of Law, Policy and Family 190, 212. 79 D Monk, ‘Parental Responsibility and Education: Taking a Long View’ in Probert, Gilmore and Herring (eds), Responsible Parents and Parental Responsibility (Hart 2009) 143.



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Non-Attendance and the Quasi criminalization of Parents for Non-Attendance at school As already seen, non-attendance is an offence under Section 444(1) of the Education Act 1996 which reads that ‘(…) if a child who is a registered pupil at a school fails to attend regularly at a school, his parent is guilty of an offence’. The issue of strict liability evident in the above text goes to the heart of many critiques of the legal response to non-attendance. Like other aspects of law and criminal law, it raises the question of universality and whether it is fair and equitable. The case law highlights a string of circumstances which indicate the problems with strict liability. This often involves circumstances such as bullying, aggressive children and difficult family circumstances. Another criminal offence which was later added in amendments was Section 1A which states than an offence is committed by a parent if he or she ‘(…) know(s) that a child is not attending school and without reasonable cause fails to acknowledge’. An interesting example of the criminalization that is furrowing into this area is the name of the act that brought this amendment. The title no longer included Education or Schools in its title, rather it was passed into Law under the Criminal Justice and Sentencing Act 2000. This act also has a significantly larger fine of £2,500 and an option of a custodial sentence of up to 12 months or both. This sort of offence however can itself be problematic. The practical argument in favour of such an approach could be that school nonattendance is quite a widespread problem with many instances throughout England and Wales, and that there needs to be a clear approach holding parents accountable to reflect this. On the other hand, such a law is highly problematic and as can been seen in the case law it has the potential to target and hit those that are most vulnerable in society.

How have the Courts interpreted Parental Responsibility and School Attendance? The issue of strict liability was examined in Barnfeather v London Borough of Islington Education Authority and Secretary of State for Education and Skills80 in relation to the Human Rights Act 1998 and Article 6 of the European Convention on Human Rights.

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[2003] All ER (D) 89 (Mar).

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Here, McKay J stated the law had a ‘legitimate objective’81 yet questioned whether the imposition of criminal liability without fault was a legitimate objective. He stated that: Whilst I accept that it may be accompanied by a degree of social stigma, this has to be considered in the context of the safeguards to which I have referred and the legitimate aim of section 444(1). For my part I do not consider that this strict liability offence has made “an excessive inroad into the right to a fair trial”.82

Despite holding alongside McKay J that the strict liability of the offence did not infringe on Article 6, Elias J was much more critical of the approach and highlighted previous cases where absolute discharges had been issued by the appellate court, stating that it seemed to be consistent with the view that justice is not served by prosecuting the innocent. If they ought not to be prosecuted, neither in my view ought there to be legislation permitting them to be.83

This sentiment is evident throughout the case law. The strict liability of the offence has been questioned further and was examined in the case of London Borough of Bromley v C.84 In this case the Magistrates Court at first instance had found that there was a reasonable excuse for the absences. The accused had her home repossessed following her divorce. She was rehoused in a council house, however this was 8 kilometres away from the children’s previous school. The only accessible way to the school was by car and the council urged the mother to register the children in closer schools. The mother decided not to change schools on the basis that the children had been through a lot of distress with the divorce and were settled and had friends at the school. Evidence was brought forward that the mother suffered from the medical condition sciatus (pain in the lower back) and had brought the children on a holiday during school term to compete in a dancing competition. However, the ruling of the Magistrates Court was firmly overturned by the High Court which stated that ‘[i]t will be seen that the offence under subsection (1) is one of strict liability: the question is simply whether the child has failed to attend the school regularly’.85

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ibid [28]. ibid [31]. 83 ibid [57]. 84 [2006] EWHC 1110 (Admin) 85 ibid [16]. 82



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One of the cases which highlights the ongoing problem of criminalization very well is that of Sutton Borough Council v S.86 Here the parents had five children, four of whom had been successful and attended at school87 and the middle child who did not attend. The parents had been pro-active and trying their best to encourage attendance including attending parenting classes and asking for help from social services. The child was aggressive and violent and would only communicate through notes. In this case the magistrates found that the accused had taken all the reasonable steps she could and could have not done anymore against the child’s own free will. Other relevant cases such as that of R (P) v Liverpool City Magistrates' Court88 have examined what could happen in the rare but highly possible scenario where a parent is not able to force his or her child to go to school due to a fear of what the child might do. The pupil was a large boy who did not wish to do physical education. In evidence, it was stated that on ‘one occasion his mother had tried physically to drag him to school, but that had resulted in what she described as a physical fight with her son, who was very much larger than she was’.89 In this case the court acknowledged that ‘[t]here may be a perfectly good reason in the sense that the parent has done all that the parent reasonably could to ensure that the child attends school. None the less the offence is in the circumstances made out’.90 Here the conviction was also quashed on the basis that the mother had done everything that she reasonably could in the situation.91 Finally, and perhaps one of the most difficult areas regarding a parent, is that of a child who is being bullied. What if the child is not attending school due to bullying? In such a case, it could it be argued that parents are doing their parental duty by protecting the child from this kind of incident, and this was examined in the case of R v Leeds Magistrates Court.92 In this case the daughter’s frequent absences were caused by bullying and the prosecution did acknowledge what they called her eggshell personality.93 The daughter was a very anxious girl who had difficulty socialising with her peers.94 She was experiencing difficulties

 86

[2007] EWCA Civ 790. ibid [8]. 88 [2006] EWHC 887 (Admin). 89 ibid [12]. 90 ibid [25]. 91 ibid [39]. 92 [2005] ELR 589. 93 ibid [7]. 94 ibid [8]. 87



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with her mother’s diagnosis of breast cancer.95 She had also on occasion threatened to commit suicide and was put on anti-depressants. It was her wish that she attend a new school.96 The question here was whether an unavoidable cause existed to prevent her mother from being held responsible. On appeal, the Judge found that there was a lack of psychiatric or medical evidence regarding suicide and highlighted evidence which made clear that after some of these episodes she went back to school.97 He therefore found that the magistrates had not erred in law in convicting the mother. Within the judgment he also provided an interesting reflection regarding non-attendance law calling it reasonably clear in terms of policy to underline parental responsibility regarding nonattendance. He pointed out however that this could lead to unfair judgments or what some would see as hard cases. This raises a critical problem with having such an individualistic type of responsibility in that it fails to acknowledge state responsibility, in this case potentially absolving the school of having to deal with issues like bullying.98 This approach it is submitted fails to consider the wider cyclical and community effects of non-attendance. For example, Southwell, himself a former non-attender, encapsulates this point well stating of parents: ‘Sometimes their child’s school is their own school, in which the problems they sought to escape are still present or seem to be present’.99

Potential Alternative: Education Supervision Orders Under English Law there is an alternative to criminalization that is not often used called the Education Supervision Order, which is granted by the family court and requires a supervising order for the parent. This is possible under Section 36 of the Children’s Act which states that an order can be granted by the court if ‘it is satisfied that the child concerned is of compulsory school age and is not being properly educated’.100 In this order, the supervising social worker in effect takes on parental rights in relation to the child’s education.101 This at first operates for one year and

 95

ibid. ibid [10]. 97 ibid [27]. 98 ibid [23]. 99 N Southwell, ‘Truants on Truancy’ (2006) 13(2) British Journal of Special Education 91, 95. 100 The Children’s Act 1989, s36(3). 101 Jacqui Newvell, Multi-agency Interventions with Poor School Attenders: Education Supervision Orders (National Children’s Bureau 2008) 6. 96



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then can be extended for up to three years until the child reaches 16 years of age.102 Unlike the criminal offences the parent concerned has a defence if they can demonstrate they have taken all reasonable action to prevent the non-attendance from occurring.103 Some commentators have suggested that this procedure is not properly followed and Newvell highlighted that many councils do not even have any clear policy or guidance for this.104 Newvell highlights that Education Supervision Orders themselves can be problematic, for example, they could be regarded as the state interfering and taking responsibility for the child. They also could be lengthy and cumbersome. She also clearly points out how adopting a policy approach in which this law is used more frequently might be unable to cause a significant drop in non-attendance, as there is a huge variety of reasons and causes for this problem, but that there is potential that it could make a difference in individual lives.105

Conclusion Parental responsibility remains a vague and an unclear concept. It has a fluid statutory definition and it has now veered away from its previous aims which were suggested by some to encourage individual responsibility and hinted at limiting state involvement. Instead whilst it has succeeded to a large degree in fostering individual responsibility it has also promoted and aided state interference, for example, creating a vast and complicated series of legislation which in the case of non-attendance has resulted in targeting the vulnerable and those most marginalized in society. Parental responsibility in many ways has changed the narrative from parental rights, which made children seem like property of their parents, to parents becoming pawns involved in a tedious game of chess which they can never win. They have no real control of the situation and are easy for the other player, the state, to sacrifice first before dealing with the bigger pieces or issues which are complex. That is the problem of having such an individualized approach as it fails to examine the issue of non-attendance and seeks and targets individuals rather than examining the real reasons why it has happened, which research indicates is multi-faceted. On the issue of state intervention, this chapter is critical of the current form of quasi criminalization which has been brought in in relation to

 102

ibid 38. ibid 35. 104 ibid 15. 105 ibid 40. 103



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school attendance. However, state intervention and parental responsibility could be used in a different way to produce positive results. The alternative approach which already exists in English Law under the Children’s Act, in the form of Education Supervision Orders, as this chapter has highlighted may not be a perfect solution. However, they have the potential to encourage some children to go to school and make a difference in some individuals’ lives. Finally, the concept of parental responsibility itself has an uncertain future as it is unclear and can come in so many different versions and such different packaging. Despite this different packaging, like a pop tart it can be reinvented and come out tasting of different flavours. However, it still remains largely the same, in this case like a pop tart that is always full of sugar. The concept of parental responsibility is instead frequently tainted by and often used to encourage individual responsibility and that is unlikely to change.



CHAPTER THIRTEEN THE UNITED KINGDOM – NAVIGATING THE CHOPPY WATERS OF SURROGACY MARY O’CONNOR

Introduction Surrogacy in the United Kingdom has been the focus of judicial and media attention since the birth on Baby Cotton to English surrogate mother Kim Cotton on January 4, 1985 and the subsequent Re C (A Minor) the Baby Cotton Case.1 However, British Parliamentary action had preceded this event with the publication of the Warnock Report 1984.2 Further reaction was immediate and effective; the Surrogacy Arrangements Act 1985, the Brazier Report 19983 and the Human Fertilisation and Embryology Acts 1990, 2008 and 2015. Repercussions of cross-border surrogacy became evident in the landmark X & Y4 case and the decision of Hedley J. Thus, the initial questions are posed – what is surrogacy? What is cross-border or international surrogacy? Surrogacy takes place when the surrogate mother agrees to carry a child to term for the commissioning parents or parent.5 The child born as a result of this surrogacy arrangement is referred to as the surrogate child and the surrogate mother agrees to relinquish her rights to the child at birth. Surrogacy can be traditional or gestational, altruistic or commercial. Traditional surrogacy takes place when the surrogate mother becomes pregnant using her own ova and the sperm of the commissioning father or

 1

Re C (A Minor) (Wardship: Surrogacy) [1985] FLR 846. Report of the Committee of Inquiry into Human Fertilisation and Embryology. 3 Surrogacy: Review for health ministers of current arrangements for payment and regulation. Report of the review team. 4 X & Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam). 5 EU Parliament Study (2013) A Comparative Study of the Regime of Surrogacy in EU Member States, 12. 2

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a donor. The surrogate is the genetic /biological mother in this situation and no medical intervention is required as artificial insemination can be used by the surrogate herself. Gestational surrogacy takes place when the surrogate mother carries and gives birth to a child which is not genetically related to her. The embryo which is fertilised under laboratory conditions as a result of IVF treatment is medically implanted in the uterus of the surrogate. The eggs are harvested from either the commissioning mother or a donor and the sperm of the commissioning father or a donor may be used. In a situation where the ova and sperm of the commissioning parents are used they are the genetic parents of the child. Where the commissioning father’s sperm and donor ova are used he is recognised as the genetic father of the child but the commissioning mother has no genetic claim to the child. Where the commissioning mother’s ova and donor sperm are used she is regarded as the genetic mother of the child but the commissioning father has no genetic claim. Altruistic surrogacy takes place when a surrogate mother agrees to carry a child to term without financial gain over and above ‘reasonable expenses.’ Family members are often party to this form of surrogacy agreement. Commercial surrogacy involves financial reward for the surrogate over and above ‘reasonable expenses.’ It usually involves an overseas fertility clinic, commercial surrogacy agencies and travel by the commissioning parents to overseas destinations. This practice is referred to as fertility tourism or cross-border surrogacy. In relation to the complexity and implications of the procedure, Tobin states there are potentially five people (the surrogate mother, the biological/genetic mother and the two commissioning parents) who may have a ‘distinct role in the creation of the surrogate child’.6 This number can increase to six in circumstances where the surrogate is married and to seven where mitochondrial DNA is used by a third party to the surrogacy process.7 The UK government has responded in a timely and positive manner in recognising and providing for this cutting-edge technique in the form of a Statutory Instrument, The Human Fertilisation and Embryology (Mitochondrial Donation) Regulations 2015.8

 6 John Tobin, ‘To Prohibit or permit: what is the (human) rights response to the practice of international commercial surrogacy?’ (2014) 63(2) International and Comparative Law Quarterly 326. 7 Ruth Keating, ‘Left in Limbo: The need to regulate International Surrogacy Agreements’ (2014) Trinity College Law Review 64. 8 accessed 14 March 2017.

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Undoubtedly, the surrogate child is central to the entire process of surrogacy and it is essential that the rights of that child are secured with legal certainty and clarity, irrespective of the child’s place of birth. This inevitably raises the question as to how the UK recognises the legal parentage, nationality and citizenship of the surrogate child; rights from which further rights flow. This chapter will chart the development of surrogacy regulation and legislation in the UK which is a clear response to medical advances in assisted reproduction technology and the subsequent social response which is manifested in non-traditional family forms. It will consider the issues raised in relation to establishing the legal recognition of parenthood in circumstances of surrogacy and cross-border surrogacy and examine the UK legislative response to relevant medical and social change. It will indicate evidence of judicial and academic dissatisfaction with the current system as UK surrogacy legislation appears to have stalled and has not responded to more modern family forms. It will consider the demand for new surrogacy legislation and the possible adoption of the Greek Model, currently gaining traction in the UK. It will conclude by considering the likelihood of the UK becoming party to an International Surrogacy Convention.

The English Solution Undoubtedly, questions arise in relation to the international approach to surrogacy. Is there consensus among states in relation to surrogacy and cross-border surrogacy? Is there unanimity in relation to establishing and securing the rights of the resulting child? It is clear there is no common approach adopted by European states in relation to surrogacy. For example, there is a general prohibition on surrogacy in France, Germany, Italy, Portugal and Spain, while gestational surrogacy is prohibited in Austria.9 Belgium has no express provision for surrogacy and Bulgaria has a general legal prohibition against surrogacy. While the Netherlands has no express provision for surrogacy, fertility clinics have provided IVF for surrogacy arrangements since 1998. The UK has clarified the position in relation to the non-enforceability of surrogacy contracts and the transfer of legal parentage in surrogacy cases.10 In fact Greece is the only European state which has made legislative provision for the ex ante transfer of legal parentage, which involves judicial pre-approval and the

 9

EU Parliament Study (n 5) 15. ibid 38.

10

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enforceability of surrogacy arrangements in domestic altruistic gestational surrogacy cases.11 When the intending parents of a surrogate child embark on their journey from the UK to another state in pursuit of their dream, their experiences can be fraught with legal complexities in both the destination and receiving state. These difficulties primarily concern the recognition of legal parenthood, the issuing of birth certificates, of passports, the establishment of nationality and their consequent impact on the rights of the child. The practice of cross-border surrogacy gives rise to a conflict of laws between both jurisdictions which results in a situation where, for example, the surrogate mother of a child born in Ukraine is recognised in the UK as the mother of the child while she has relinquished her rights to the child under Ukrainian law. However, the UK has made legislative provision in the Parental Order system which enables the intending mother and father to be recognised as the legal parents of the child, subject to a number of criteria. It is also clear from recent case law that the jurisprudence of the English courts is evolving to recognise the best interests of the child in all circumstances. Surrogacy has been recognised in England and Wales since the Surrogacy Arrangements Act 1985 was introduced in response to the Warnock Report12 and the Baby Cotton case.13 Commercial surrogacy arrangements14 and advertising are prohibited.15 Surrogacy arrangements are not illegal if they are altruistic but they are unenforceable.16 The Human Fertilisation and Embryology Act 2008 states that the gestational surrogate who gives birth is the legal mother of the child and that provision has extra-territorial application.17 At least one of the commissioning parents must have a genetic relationship with the child.18 They must be married, civil partners or in an enduring family relationship.19 The child must be living with the commissioning couple at the time of the application and they must be domiciled in the UK.20

 11

ibid. Report of the committee of inquiry into human fertilisation and embryology, 1984 13 Re C (A Minor) (Wardship: Surrogacy) [1985] FLR 846. 14 Surrogacy Arrangements Act 1985 s 2. 15 ibid s3. 16 ibid s1(a) as inserted by HFEA 1990. 17 HFEA 2008 s33. 18 ibid s 54 (1) (b). 19 ibid s 54(1)(c). 20 ibid s 54 (4)(a)(b). 12

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Section 54 provides for the Parental Order which in effect allows for the transfer of legal parentage to the commissioning couple subject to certain conditions. The surrogate mother must consent freely to the making of the application.21 Application for the Parental Order must be made within six weeks and six months of the birth of the child.22 The issue of expenses paid by the commissioning couple to the surrogate which frequently arise in cross-border surrogacy cases such as X & Y23 are permitted within the parameters of reasonable expenses.24 The section provides for a post-birth transfer of legal parentage which is the subject of academic and legal practitioner criticism and recommendations for reform.25 However, it is clear that there is evidence of growing judicial creativity particularly in relation to cross-border surrogacy in the UK which is reflected in an increasing body of case law. It can be argued that although there is a legislative and regulatory system in place, it is the issues generated in the area of cross-border surrogacy arrangements that have given rise to this case law; issues in relation to legal parentage, nationality, expenses and the time limit. It is clear that the common determining factor in decisions reached in these cases is the best interests of the child which trumps public policy in almost all circumstances.26

Applicability of the Parental Order Model The Parental Order model has been in operation in the UK since 199027 with provision made for civil partners or those in an enduring family relationship in 2008.28 However, there have been further significant legal changes since the introduction of the HFE Act 1990 – the passage of the Human Rights Act 1998 and same sex marriage in 2014. However, what is significant about s 54 Parental Order is that provides for the transfer of legal parentage to both commissioning parents, subject to certain conditions, who, when the order is granted, also assume parental responsibility for the child, while the rights of the surrogate are

 21

ibid s 54 (6). ibid s 54 (3) (7). 23 (n 4). 24 (n 19) s 54 (8). 25 Surrogacy Conference NUIG, Kirsty Horsey, Deirdre Fottrell QC, https://www.youtube.com/watch?v=QpEVAyIDxRA. < accessed 27 August 2016>. 26 (n 4). 27 (n 19) s 30. 28 ibid s 54 (1)(c). 22

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extinguished. However, the consent of the gestational mother and her partner are required in order for the application to proceed.29 The consent of the surrogate mother and her partner to the transfer of legal parentage to the commissioning couple and the consequent relinquishment of their rights is regarded by Fottrell as the cornerstone of UK legislation’.30 Consent must be given freely, unconditionally and with full understanding, and cannot be given by the surrogate mother until at least six weeks after the birth.31 It can only be dispensed with if she cannot be found. Since the woman who gives birth is the legal mother of the child she has the right to refuse consent. Consent could only be waived by the court if the surrogate was deceased or could not be located. However, the UK Report states that this requirement has been dispensed with in recent UK cases on the basis that the granting of the parental order applied for would be in the children’s best interests as in D and L (Surrogacy).32 The Report also recommends the pre-authorisation of parental orders and in such circumstances the post-birth consent of the surrogate mother would not be required.33 The Hague Conference on Private International Law has acknowledged that legal parenthood is the gateway through which the rights of the child flow34 and this ought to be acknowledged as pivotal in establishing the rights of the child, in particular the cross-border surrogate child. Further, ‘[Re]cognition as a parent is important for the identity of the child. It is important for the child’s own identity to know the status of the child’s parents are recognised socially and legally.’35 Furthermore, the determination of legal parenthood should be fundamentally about identity: that is it should be seen as answering the question to which family does this child belong?36

 29

(n 19) s 54 (6) (a) (b). (n 25). 31 (n 19) s 54 (6-7). 32 ‘Surrogacy in the UK: Myth busting and reform’ Report of the UK Working Group on Surrogacy Law Reform (2015) 34; D and L (Surrogacy) [2012] EWHC 2631 (Fam) Baker J. 33 ibid 39. 34 Hague Conference on Private International Law ‘The desirability of further study on the desirability of further study on the parentage/surrogacy project’ April 2014, 10. 35 Rita D’Alton Harrison, ‘Mater Semper Incertus Est: Who’s Your Mummy?’ (2014) 22(3) Medical Law Review 357, 365. 36 June Carbone, ‘The Legal Definition of Parenthood –Uncertainty at the Core of Family Life’ (2005) Louisana Law Review 65. 30

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How does the UK determine legal parentage? In English common law motherhood is determined by birth and the maxim mater semper certa est (motherhood is always certain) prevails. The ruling by Lord Simon of Glaisdale in The Ampthill Peerage; ‘Motherhood, although a legal relationship, is based on a fact, being proved demonstrably by parturition’.37 This position is upheld in s 33 HFEA 2008: The woman who is carrying or has carried the child as a result of the placing in her of an embryo or of sperm or effs, and no other woman, is to be treated as the mother of the child.

From the perspective of cross-border surrogacy the application of the definition of motherhood is extra-territorial and thereby, is applicable in whatever jurisdiction the UK commissioning couple choose the surrogate mother. Fatherhood, by contrast is a presumption, as held by Lord Simon of Glaisdale in The Ampthill Peerage.38 This asserts the common law ‘presumption of legitimacy’ that the child is the legitimate child of the married couple. This position is clearly stated in s 35 of the 2008 Act, and in circumstances where the surrogate is married, her husband is recognised as the legal father of the child unless it can be proven that he did not consent to the pregnancy and consequently ‘the commissioning father has no automatic claim to legal parenthood, even if he is the biological father,’39 and this position is reaffirmed in s 38. Nevertheless, in circumstances where the surrogate is unmarried, the male commissioning father may be treated as the legal father on submission of DNA test when making application for a Parental Order.40 However, he has no legal status in relation to the child at birth and in such a situation the child would be fatherless until the granting of a Parental Order and ‘binding declarations of paternity can only be made by a court and even then only in certain proceedings’.41 A determination of legal parentage is required to amend a

 37

[1977] 1 AC 547. ibid. 39 Michael Wells-Greco ‘United Kingdom’ in Katarina Trimmings and Paul Beaumont (eds) International Surrogacy Arrangements (Hart Publishing 2013) 369. 40 S 20(1). 41 Nigel Lowe, ‘The Establishment of Paternity under EU Law’ accessed 19/11/2016. 38

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birth certificate, to establish the right to inherit property or to acquire nationality and citizenship.42

Relevant Cross-border Surrogacy Case Law in the UK It is apparent that applications for Parental Orders under s 54 in circumstances of cross-border surrogacy are the subject of case law considered in this section. The manner in which members of the judiciary interpret the criteria in order to accommodate the best interests of the child is evident. Thus, questions are inevitably raised as to the relevance and effectivness of the criteria outlined above, to modern methods of family formation. The manner in which the granting of a parental order establishes and secures the rights of the cross-border-surrogate child has been outlined by Theis J in J v G, for the child it means that the ‘parental order will safeguard the child’s welfare on a lifelong basis’, it will ‘confer joint and equal legal parenthood and parental responsibility’ on the commissioning couple which will ensure the child’s security and identity as lifelong members of the applicant’s family.43 But, most importantly it will make the child a British citizen which will entitle him/her to live in the UK with their family on a permanent basis. A further condition which is of particular relevance for the crossborder surrogate child is that ‘at the time of the making of the order the child’s home is with the commissioning parents’.44 This in effect means that the commissioning parents of a cross-border surrogate child cannot make an application for a parental order until the child is living with them. However, since the legal parentage of the commissioning couple has not been established the child will not qualify for British citizenship and will not be issued with a passport. In these circumstances, the child is in a legal limbo and his/her status is determined by a judicial decision which is frequently taken in the best interests of the child and will be discussed later in this chapter. Another parental order condition relates to the payment of ‘reasonable expenses’45 to the surrogate. However, there is no guidance as what ‘reasonable expenses’ means despite it being one of the main terms of

 42

Part 1: Paternity 6 (a) Procedures for the Determination of Paternity and on the Law of Parental Responsibility for Unmarried Fathers 1998. 43 [2013] EWHC 1432 (Fam) [27-29] and cited by Sir James Mumby in Re X (A Child) (Surrogacy:Time Limit) [EWHC) 595 (Fam), Fam Law 813. 44 (n 19) s 54(4)(a). 45 (n 19) s 54 (8) (a) (b) (c) (d).

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reference for the Brazier Review 1998. Nevertheless, none of the recommendations of Brazier had been adopted some 15 years after its publication.46 The monetary inclusion has been described by Wells-Greco as ‘… clearly a policy decision that commercial surrogacy agreements should not be regarded as lawful; equally, there is clearly a recognition that sometimes there may be reasons to do so.’47 The issue of whether expenses were reasonable or not has come before the courts in a number of cross-border surrogacy cases.48 In X v Y (Foreign Surrogacy)49 Hedley J considered the issue of ‘reasonable expenses’ in this case where monthly payments of 235 euro and a lump sum of 25,000 euros for a live birth were paid to the Ukrainian surrogate mother. This sum would appear to be in excess of ‘reasonable expenses’ and Hedley J outlined the position to the court in which he acknowledged the parliamentary entitlement to legislate against commercial surrogacy, but notes that a rigid interpretation would impact on the welfare of the child and that ‘by the time the case comes to court, the welfare of any child (particularly a foreign child) would be gravely compromised (at the very least) by the refusal to make the order’.50 When answering the questions the judge reminded the court that the best interests of the child must be a primary consideration and it is clear that the decision to authorise the payments and make the parental order reflected this. In the case of Re L (A Minor)51 a commercial surrogacy agreement entered into in Illinois was considered. The agreement and the payment were lawful in the US but were regarded as unlawful in the UK as the amount paid was in excess of ‘reasonable expenses’. In the course of his judgment Hedley J observed that “reasonable expenses” remains a somewhat opaque concept’, and authorised the retrospective payment to the surrogate mother.52 The decision of the court in relation to the cross-border surrogate child at the centre of Re L (A Minor), is regarded as ground-breaking in so far as, for the first time the court made it clear that the welfare of any child born by means of a surrogacy arrangement will trump public policy on

 46

Kirsty Horsey and Sally Sheldon, ‘Still hazy after all these years: the law regulating surrogacy’ (2012) 20 (1) Medical Law Review 67. 47 (n 39) 377. 48 Re L (A Minor) [2010] EWHC 4146; Re S (Parental Order) [2010] 1FLR 1156. 49 (n 23). 50 ibid [21]. 51 Re L (A Minor) (n 48). 52 ibid [7].

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payments.53 In reaching its decision the court relied on the welfare test provided for in the Parental Order 2010 Regulations which was ‘imported into the 2008 Act,’ and which states that in regard to the child ‘… welfare is no longer merely the court’s first consideration but becomes its paramount consideration’.54 The effect of this decision is clarified further, ‘… to weight the balance between public policy considerations and welfare decisively in favour of welfare (as considered in Re X and Y)55.’ The court further held ‘it will only be in the clearest case of the abuse of public policy that the court will be able to withhold an order if otherwise welfare considerations support its making.’56 It is clear that a precedent has been set by Hedley J. in Re L (A Minor) and the manner in which this ruling has been interpreted to secure the legal parenthood rights of the cross-border surrogate child in other cases will be considered. FentonGlynn, however, is critical of the 2010 Regulation: ‘[W]hile the elevation of the child’s welfare to the paramount concern is laudable, it has undermined the ability of the courts to refuse a parental order and she cites Hedley J who expressed his concern in Re L in relation to the current position, ‘[T]he effect of that must be to weight the balance between public policy considerations and welfare … decisively in favour of welfare.’57 In Re S (Parental Order)58 Hedley J. considered the issue of whether the sum involved which was $23,000 was in excess of ‘reasonable expenses.’ This was also a commercial surrogacy case involving a British married couple who entered into a surrogacy agreement in California. The British husband’s sperm was used and an anonymous donor’s egg which resulted in the birth of twins. Under Californian law the surrogate mother’s rights were extinguished prior to the birth of the twins and there was a declaration stating that the commissioning couple would be the legal parents, and they subsequently applied for a parental order in the UK. In his decision Hedley J. focused on the legal aspects of the international element of the case and noted that matters of public policy arose in so far as it is necessary to ensure that commercial surrogacy agreements are not used to circumvent childcare laws in this country so as to approve of

 53

Wells-Greco (n 39) 377. (n 51) [9]. 55 (n 4). 56 (n 53) [10]. 57 Claire Fenton-Glynn, ‘The regulation and recognition of surrogacy under English law: an overview of the case-law’ (2015) Child and Family Law Quarterly 93. 58 Re S (Parental Order) (n 48). 54

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arrangements in favour of people who would not have been approved as parents under any existing arrangements in this country. The court must be ‘astute’ as to any payments that might indicate that the child had been bought overseas or that the sum of money involved could overbear the will of the surrogate.59 The court found the payments did not offend any broad issue of principle in relation to the buying of children,60 and approved the payments. Once again the welfare of the child trumped public policy issues and Hedley J. expressed his satisfaction that the welfare of these children viewed in a lifelong perspective is such that it is in their interests that a parental order under s30 should be made.61 However, the rights of the cross-border surrogate child are brought to the fore under the terms of the Human Fertilisation and Embryology Regulations 2010 as stated by Theis J in Re WT (A Child)62 in which it was held that the decision whether to authorise payments retrospectively is a decision relating to a parental order and in making the decision the court must regard the child’s welfare as the paramount consideration. She continued to consider the rights of this child, stating that: … it is difficult to imagine a set of circumstances in which in which, by the time an application for a parental order comes to court, the welfare of any child, particularly a foreign child, would not be gravely compromised by a refusal to make the order.63

The time frame within which an application for a parental order must be made is laid down in the conditions which state that it must be between six weeks and six months of the birth of the child.64 This strict time limit is particularly problematic in cross-border surrogacy circumstances as is evident in X v Y (Foreign Surrogacy)65 and Re X (A Child) (Surrogacy:Time Limit)66 In X v Y, Hedley J referred to the time limit as being non-extendable and stated that ‘… it is noteworthy that apparently there is no power to extend though no specific reason can be ascertained for that. That may especially cause problems where immigration issues have led to delay’.67 This statement can be regarded as an

 59

ibid [7]. ibid [8]. 61 ibid. 62 [2014] EWHC 1303 (Fam). 63 ibid [35]. 64 (n 19) s 54 (3). 65 (n 23). 66 [2014] EWHC 595 (Fam), Fam Law 813. 67 (n 65) [12]. 60

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acknowledgement by the court that the restricted time limit can be problematic in cross-border surrogacy cases, particularly in relation to establishing the rights of the child. This situation changed, however, in what can be considered as a landmark judgment which prioritised the rights of the cross-border surrogate child, delivered by Mumby J in Re X (A Child) (Surrogacy: Time Limit).68 The case concerned a surrogate child born in India in December 2011 to commissioning parents who were living there at the time and who cared for the child from birth. They returned to the UK in July 2013. They had never applied for a parental order. They separated and the commissioning father sought a residence order and the commissioning father and mother made a joint parental order application, although well outside the stipulated time limit. They later became reconciled. This meant that during that period, from the birth of the child, the surrogate mother and her husband who were in India, were recognised under English law as the legal parents of the child with parental rights and responsibilities. However, they had relinquished their rights to the child under Indian law. This, in effect, meant that the child was living with the commissioning parents with whom he had no recognised legal relationship under English law, and who, consequently had no parental rights or responsibilities in respect of him. Fenton-Glynn indicates that the courts followed the reasoning of Hedley J in X v Y (Foreign Surrogacy) that the time limit is ‘nonextendable’ and continued to do so in JP v LP and Others (Surrogacy Arrangement: Wardship)69 where King J held that a parental order should not be granted in respect of a child of 33 weeks, just six months prior to Re X. In Re X, Sir James Munby held that this precedent was incorrect and the courts were required to exercise their power in the interests of the child’s welfare. He adopted a purposive approach taking into account the transcendental importance of the parental order with its consequences stretching many, many decades into the future and considered what Parliament, in all likelihood, intended.70 He also relied on the reasoning of Theis J71 in relation to Article 8 of the European Convention on Human Rights which protects family life and private life which includes identity. In light of this reasoning Mumby J held that any application for a parental order implicates both the child’s right to family life and also to private

 68

[2014] EWHC 3135 (Fam). (n 66). 70 Fenton-Glynn (n 57). 71 A v P (Surrogacy: Parental Order: Death of Applicant) [2011] EWHC 1738 (Fam); 2 FLR 145. 69

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life.72 In a further analysis of the parental order three points were made by the court: that a parental order goes not just to status but to identity as a human being; that the court is looking ‘to a future, stretching many, many decades into the future; and in relation to delay in making the application, the court considered the impact on the innocent child, whose welfare is the court’s paramount concern.73 Thus, Munby J in Re X has clearly identified the cross-border surrogate child’s right to family and private life including identity and that this is integral in the application for a parental order on which the future life of the child, whose welfare is the paramount concern of the court, depends. This judicial precedent was applied in circumstances where the time limit had expired for a much longer period. In Re A and B74 Russell J. granted Parental Orders and issued UK birth certificates to two crossborder surrogate children 8 and 5 years after they were born in California. The children had been left legally parentless by international law and, since they were not British citizens the children had no right to inherit from their parents or to financial protection if they separated. The judge said that it would be ‘manifestly unjust’ for the six month deadline to be given greater weight than the welfare of the children and it was for the court to consider whether the principle established in Re X75 should apply in this case.76 In weighing public policy issues against the welfare of the child she cited the Human Fertilisation and Embryology Authority Regulations 2010 which provide the paramount consideration of the court must be the child’s welfare throughout his life.77 She held that in terms of identity, only parental orders will fully recognise the children’s identity as the applicants’ natural children. The judge concluded that in their interests the lifelong welfare of the children was best met by making the orders enacted by Parliament for them in their circumstances, namely the Parental Order’78 Thus, it is clear from the most recent judicial decisions in cross-border surrogacy cases that the best interests and the welfare of the child are given paramount consideration by the courts in the granting of parental orders and the breach of the time frame no longer appears to be a determining factor. In light of recent decisions therefore it can be

 72

Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 [61]. ibid [64]. 74 Re A and B (Children: Parental Orders: Time Limits) [2015] EWHC 911 (Fam). 75 (n 74). 76 (n 74) [45]. 77 ibid [46]. 78 ibid [68]. 73

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concluded that the courts have interpreted the concept of welfare/best interests of the child as meaning that the parental order must be granted almost regardless of the length of time after the six-month deadline the application comes, and almost regardless of the amount of money involved. In relation to these decisions it is clear that English jurisprudence is evolving and responding to the best interests of the child born in circumstances of medical and scientific developments in the area of assisted human reproduction. It also highlights the remarkable ability and adaptability of the English Judiciary to make landmark decisions domestically and in doing so skilfully avoiding a trip to the Strasbourg Court as in the cases of Mennesson v France79 and Labasse v France.80 This is particularly evident in the reasoning of Mumby J in Re X which reflects the judgment of the Strasbourg Court in relation to the crossborder surrogate child’s right to a private life and identity.

Critical Interpretation of Judicial Creativity in UK Surrogacy Cases However, there appears to be a level of discontent among the judiciary and academics with current surrogacy law, in particular its provisions regarding eligibility for parental orders, which is regarded as not only out of date but is also becoming nonsensical. The current system is regarded as failing to adequately protect the best interests of children and furthermore, is considered as having the unintended effect of driving commissioning parents into cross-border surrogacy arrangements (with which Horsey disagrees), in the belief that they are more favourable to the recognition of legal parenthood, when the case comes before the courts.81 Horsey identifies recent judicial decisions as reflecting an increasing dissatisfaction with some provisions of the law relating to the criteria under which Parental Orders may be granted and which do not mirror the realities of surrogacy today.82 Judges in her opinion, seem increasingly prepared to purposively interpret or read down the provisions of s 54 HFE Act 2008 to give better effect to the welfare of the child. Her paper examines three 2015 cases in support of this opinion and also refers to cases already cited in this chapter. In H v S (Surrogacy

 79

App No 65192/11 (26 June 2014). App No 65941/11 (26 June 2014). 81 ibid 608. 82 ibid 609. 80

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Agreement)83 Russell J awarded the care of a 15 month old girl to a male same-sex couple against her mother’s wishes. The case concerned a dispute in relation to the surrogacy arrangement and the application was made for a parental responsibility order and a child arrangements order. The case was decided on grounds of what best serves the interests and welfare of the child throughout her childhood.84 The other two cases involved single men and highlighted the law’s inadequacies.85 In Re B v C (Surrogacy: Adoption,)86 the man had no choice but to adopt his own genetic child, who was also his legal brother. In Re Z (A Child: Human Fertilisation and Embryology Act: Parental Order)87 the President of the Family Division, Sir James Mumby found that a single father was unable to apply for a Parental Order by virtue of his single status despite the consent of the American surrogate. The decision turned on the literal wording of s 54(4) HFE Act 2008.88 Mumby J stated: But for one matter this application would be unproblematic. The problem is that the application is made by a single parent, whereas section 54 seemingly requires an application to be made by ‘two people.’89

Thus, Mumby J was unable to ‘read down’ the law in this case and found that the Human Rights Act 1998 could not be used to amend the law without the involvement of Parliament. The case raised human rights issues and was appealed. In the second case, In the matter of Z (A Child) (No 2)90 Sir James Mumby P also presided and found that Z’s human rights had been violated in that the law discriminated against him because of his single status. The court made a declaration of incompatibility in relation to the rights of the Applicant and the Second Respondent as agreed by the Secretary of State for Health: under Article 14 ECHR taken in conjunction with Article 8 insofar as they prevent the Applicant from obtaining a parental order on the sole ground of his status as a single person as opposed to being part of a couple.91

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[2015] EWFC 36. ibid [125]. 85 Horsey (n 81) 609. 86 (n 84). 87 [2015] EWFC 73. 88 Horsey (n 81) 706. 89 (n 88) [5]. 90 [2016] EWHC 1191 (Fam). 91 ibid [17-18]. 84

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What are the implications of this decision for those in similar circumstances to Z? It means that the UK government has to change the law, as it has it has been declared incompatible with human rights. In a debate in the House of Lords on 14 December 2016, the Minister confirmed that a reparation order would be introduced early in 2017, to amend the law to allow single applicants who are genetically related to a child born to a surrogate to have a parental order. Clearly, the need for change has been acknowledged by the government of the UK.

Time for Change in UK Surrogacy Law The reality is, that the law pertaining to surrogacy is now 30 years old, stems from the Surrogacy Arrangements Act 1985 and is increasingly out of date. ‘It does not reflect the realities of modern surrogacy and should be brought in line with ‘the views and needs of families –reflecting the best interests of the children – created by this method.’92 However: There are aspects of the existing law that are worthy of retention – there is not a case for radical reform. We should build on an existing model that is not perfect but which provides a workable basis from which improvements can be made, to match the demands of modern family building and mirror other aspects of assisted reproduction law.93

This recent research has recommended changes to the existing Parental Order system.94 It is clear from the findings that demand for the pre-birth authorisation of the Parental Order is gaining traction in the UK. This system would ensure that legal parenthood is conferred on the intending parents at birth, and they should register the birth.95 It is also recommended that the Parental Order be available in circumstances where neither partner is genetically related to the child. Parental Orders should be available to single people who rely on surrogacy.96 This can be regarded as a very clever means of preventing a case similar to Paradiso and Campanelli v Italy97 from coming before the English courts. Apparently in light of recent English case law it is also recommended that the time limit

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(n 32) 11. (n 32) 36. 94 ibid 7, 39. 95 ibid 7. 96 ibid 7. 97 Application no. 25358/12. 93

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for applying for Parental Orders should be removed.98 The Report states that Parental Orders/Surrogacy birth data should be centrally and transparently collected and published annually.99 It has also been suggested by Horsey that there should be a reference to reasonable expenses and there should be donor information and a Surrogacy Register similar to the Adoption Register.100 Horsey and Fottrell have suggested the Greek Model as a possible template for future application in the UK. In fact, Greece is ‘the only country in the EU which has introduced a complete and comprehensive regulatory framework with regard to surrogacy.’101 The results from Law no 3305/2005 on Medically Assisted Reproduction which provides for domestic, gestational, altruistic surrogacy for married and unmarried couples and single women but not for same-sex couples.102 The commissioning mother must be medically certified as being medically unfit to conceive or bring a pregnancy to term103 and must apply to the court and request the granting of permission to use a surrogate mother who must be certified as suitable for fertilisation.104 This will enable her to gain parental rights after the birth of the child and must take place prior to the embryo transfer.105 The Greek regulatory system provides for the enforceability of the surrogacy contract with the commissioning couple, the surrogate and her partner signing the agreement which is presented to the court.106 The judge asks the contracting parties to verify their consent to the arrangement when if granted, the fertilisation of the surrogate can be performed. This is the ‘point of no return’ and the surrogate mother now loses her right to change her mind, must comply with the terms of the agreement and must hand over the child to the commissioning couple immediately after birth.107 Rokas states ‘the centre of gravity in the Greek system does not lie in the arrangements between the parties but in judicial authorisation’108

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(n 32) 7. ibid. 100 (n 25) 101 (n 5) 277. 102 Konstantinos Rokas, ‘Greece’ in Trimmings and Beaumont (n 41) 144. 103 Article 1455, paragraph 1, Greek Civil Code, (GCC). 104 Article 1485 GCC. 105 (n 5) 283; Article 1458 GCC. 106 ibid 290; Article 1458 GCC. 107 ibid 290. 108 Rokas (n 102) 99

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which dispenses with the mater semper principle (motherhood is always certain) and provides that the woman who acquires judicial authorisation for a surrogacy is presumed to be the mother of the child.109 She will be named on the birth certificate as the mother of the child and her husband will be considered as the father of the child due to its birth in wedlock. In the case of an unmarried couple the male partner will be considered the father of the child if he has given his consent before a notary. The advantage of the system is that the parentage issue is solved prior to the birth of the child and the commissioning couple are recognised as the child’s legal parents from birth and a transfer of parentage is not required. The rights of the surrogate child are clearly established with legal clarity and certainty and are recognised under Greek law which, from the outset of the process aims to protect the rights and interests of any resulting child.110 The best interests of the child are considered before judicial approval of the arrangement.111 The commissioning parents are registered as the child’s legal parents at birth and his rights are similar to all Greek children born naturally.112 This is significant as the question of establishing the legal rights of the surrogate child in relation to its commissioning parents, birth certificates, nationality, education, access to health services and inheritance rights do not arise. The commissioning couple have a legislative and constitutional right to personal autonomy and the right to procreate.113 In light of the English ability to respond legislatively to scientific and medical developments in the area of assisted human reproduction and to social change in family forms it is likely that there will be a positive response to the call for a new Surrogacy Act.114

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ibid 148. Article 1[2] Law 3305/2005: ‘When applying the techniques for the medically assisted reproduction, the best interests of the child to be born shall be taken into consideration’; (n 5) 277. 111 Article 1[2] of Law 3305/2005. 112 Rokas (n 102) 150. 113 Article 1[1] Law 3305/2005: ‘The technologies of assisted reproduction are applied in such a way that ensures the respect for the individual’s personal freedom and personal development, and for the [individuals’] right to procreate’; (n 5) 277278. 114 (n 32) 38. 110

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An International Surrogacy Instrument – The Way Forward It is becoming increasingly apparent that some form of international consensus is required in relation to cross-border surrogacy, whereby the legal parentage of the surrogate child and the rights which flow from that status, will be clearly established and recognised from the moment of birth in the country of habitual residence of the commissioning couple. The possibility of an international instrument which will clarify and regulate international surrogacy arrangements (hereafter ISA’s), legal parentage, the rights of intending parents, of surrogate mothers and most importantly the rights of the cross-border surrogate child is currently the subject of serious study being undertaken by the Hague Conference on Private International Law since Preliminary Document no. 11 Private International Law Issues Surrounding The Status of Children, Including Issues Arising From International Surrogacy Arrangements’ was published in 2011.115 It is likely that the UK will seriously consider becoming a party to an international surrogacy convention and this necessity has been acknowledged from the bench. The necessity to formulate such an international instrument is clear from the call made by the English judge, Moylan J: There is, in my view, a compelling need for a uniform system of regulation to be created by an international instrument in order to make available an appropriate structure in respect of what can only be described as the surrogacy market.116

Similarly, Australian judge, Johns J. commented on the need for regulation and scrutiny of these practices in other jurisdictions to ensure the rights of all parties (and any children born as a result of such arrangements) are protected.117

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Preliminary Document No. 11, March 2011; Preliminary Document No. 10, March 2012; Preliminary Document No. 3B, March 2014 (2014 Report); Preliminary Document No. 3C, March 2014 (2014 Study); Preliminary Document No. 3A, February 2015; Preliminary Document No.3, February 2015 (Report); HCCH, Background Note, January 2016; Preliminary Document No.3, February 2016. 116 Re D (A Child) [2014] EWHC 2121 [1]. 117 Green-Wilson & Bishop [2014] Fam CA 1031 [10].

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The fact that the UN Committee on the Rights of the Child discussed International Surrogacy Arrangements (ISA’s), in relation to one receiving State - Germany and one State of birth- India, illustrates both the human rights and children’s rights concerns which were raised in relation to cross-border surrogacy. The queries focused on the legal status of children born as a result of ISA’s and the measures taken by Germany to prevent such children from becoming stateless.118 The state of birth was India and the requests made by the UN Committee have been mentioned in this section. In light of these queries the Hague Conference is of the view that despite the fact that there is no specific provision of the UNCRC on the establishment of parentage and /or surrogacy, there is nonetheless a foundation for international work in the UNCRC when one considers the treaty holistically and, in particular, the provisions the UN Committee cited in its queries on India.119

Issues that Must be Resolved It is apparent that a conflict of laws arises between the destination state in which the surrogate child is born and the receiving state which is the state of habitual residence of the commissioning couple regarding the recognition of the legal parent-child relationship. Non-recognition of this status can result in statelessness and uncertain parentage for the child.120 Firstly, the issues that give rise to a conflict of laws and the consequent need for the provision of an international instrument must be considered. It is apparent that central to the concept of cross-border surrogacy is the fact that the legal systems of at least two jurisdictions are involved in an international surrogacy arrangement, the result of which is the crossborder surrogate child. In relation to the recognition of the legal parentage of that child, a situation arises whereby the commissioning couple are recognised as the legal parents of the child in the country of the child’s birth where the surrogate mother has relinquished her rights to the child under the terms of the surrogacy agreement. However, they are not recognised as the legal parents in the receiving state: the surrogate mother and her husband/partner are recognised as the legal parents of the child in the receiving state of the commissioning couple on the basis of the domestic law of that state which embraces the mater semper and lex fori principles. This situation can result in the child being denied entry to the

 118

Preliminary Document No 3A, 2015 [3]. ibid [4]. 120 Preliminary Document No 11 [13]. 119

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receiving state, being left stateless, trapped in the state of birth, unable to leave and sometimes with no permanent place to stay and with uncertain parentage.121 The classic example of such a conflict being played out in the courts is the English case X & Y122 where the surrogate twins were left marooned parentless and stateless while the applicants could neither remain in Ukraine or bring their children home.123 This case, in the opinion of Hedley J. provides a cautionary tale for any who contemplate parenthood by entering into a foreign surrogacy agreement. These issues highlight the fact that children’s legal parentage has become a matter of international concern.124 As mentioned legal parentage is the gateway through which many of the obligations owed by adults to children flow and it is therefore a legal status from which children can derive many important rights established in international law, identity, inheritance, nationality125 The fact that two states answer the question ‘who is or are your parents?’ in a different manner gives rise to limping parentage which will seriously compromise the child’s ability to engage many of those rights. In order to resolve this issue, states engage in reaching outside the rules agreements which allows the child to enter the state of habitual residence of the intending parents, as in the case of Baby Manji.126 Baby Manji was issued with an identity certificate by the Indian Government. It was the first time such a certificate had been issued. The certificate did not mention nationality, the mother name or religion and was valid only for Japan. The Japanese Embassy issues a one year visa on humanitarian grounds. Manji was three months old when she was permitted to leave India with her future status in Japan uncertain. In circumstances where there is no specific international provision in place, this situation can result in the child living with people who are not recognised as his/her legal parents with all the legal disadvantages that flow from that. This dilemma can also result from circumstances where a foreign judgment granting the commissioning couple legal parentage of the child is refused recognition by the court of the receiving state.127 In order to resolve this issue states engage in reaching outside the rules

 121

(n 119) [13]. X & Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam). 123 ibid [10]. 124 Hague Conference on Private International Law, Preliminary Document 3B, March 2014 [16.] 125 ibid [18]. 126 (n 119) [13]. 127 ibid. 122

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agreements which allow the child to enter the state of residence of the intending parents.128 It can also result in long delays for the commissioning parents as in the case of Jan Balaz,129 where the twins were two years and four months before the German authorities agreed to allow them to enter Germany, and uncertainty regarding the future legal status of the child as in the case of Baby Manji.130 Ergas is critical of such delays experienced in the often protracted process of establishing the nationality of the child, a States unwillingness to recognise the filiation of children born of surrogacy arrangements translates into such children’s statelessness, a de facto violation of ius cogens may be found.131 A further difficulty arises in circumstances where the receiving state refuses to recognise a judgment in the state of birth of the surrogate child that verified the legal parent/child relationship and the parents bring legal proceedings in an attempt to have the foreign judgment acknowledged. Such were the circumstances in Mennesson132 and Labasse.133 The refusal by the receiving state is based on public policy grounds and results in the child living in a state which does not recognise his/her principal carers as legal parents, with all the legal disadvantages which flow from this. In relation to registering the birth of the child, most states apply their own internal law rules and recognise the foreign birth certificate as a statement of fact and not a conclusion of law which is taken into account when the competent authorities establish legal parentage under their own law. However, there are circumstances where parentage does not reflect that on the foreign birth certificate.134 Clearly, in relation to any future instrument, it is imperative to ensure the child’s best interests as a primary consideration in all matters concerning him /her, to protect the child from suffering adverse discrimination on the basis of birth or paternal status and to recognise his/her right to a name and to acquire a nationality. The child’s fundamental right to a nationality is derived from the UDHR135, ICCPR,136

 128

ibid. Union of India and Ors v Jan Balz and Ors Supreme Court of India, LAWS(SC)-2015-10-121. 130 Baby Manji Yamada v Union of India & Anor [2008] INSC 1656. 131 Yasmine Ergas, ‘Thinking ‘Through’ Human Rights: The Need for a Human Rights Perspective With Respect to the Regulation of Cross-border Reproductive Surrogacy,’ Trimmings and Beaumont, 427- 435,435. 132 (n 79). 133 (n 80). 134 (n 119) [16,17]. 135 Article 15. 129

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UNCRC137 and reaffirmed by the Human Rights Council in 2012.138 Although provisions for the recognition of nationality are examined in detail by the Permanent Bureau139 it is apparent that some pre-date circumstances relating to cross-border surrogacy.140 However, there is a reference to surrogate children in the Recommendations of the Committee of Ministers on the nationality of children which asserts that states should apply their provisions on the acquisition of nationality by right of blood, if as a result of a birth conceived by ART techniques, a child-parent legal relationship is established or recognised by law.141 The Explanatory note explains that states are not obliged to do so being dependent upon internal law and private international law rules of the State. However, if recognition does take place it should also have consequences in nationality law.142 This recognised for the first time that a child-parent family relationship for the acquisition of nationality should be that established or recognised in law (i.e. legal parentage, not genetics is determinative.) It also identifies that where States establish or recognise such a relationship they should accord them the concomitant legal consequences under nationality law without discrimination. Nonetheless, it is clear that in cross-border surrogacy cases the genetic element can prove a contentious issue as in Paradiso and Campanelli. However, it is acknowledged that these are challenges which will confront the international effort to establish private international law rules governing parentage and cross-border surrogacy. It is also recognised that in circumstances where it is clear that internal laws are not developing in a globally uniform manner, private international law can play a unique role in bridging developing gaps between states.

Conclusion There is a clear acknowledgment among members of the judiciary, politicians and academics that legislative reform in relation to surrogacy is necessary in the UK. This was evident in the judgment of Sir James

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Article 24(3). Article 7, 8. 138 ‘The right to a nationality: women and children’ 28 June 2012. A/HRC/L.8 [23]. 139 Preliminary Document 3C, 2014 [59, 60]. 140 The Council of Europe – 1997 European Convention on Nationality. 141 Adopted by the Committee of Ministers, 9 December 2009, no 1073, CM/Rec (2009) 13. 142 (n 141) [60]. 137

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Mumby P in Z143 where the Secretary of State conceded that ‘the current provisions of section 54(1) and (2) of the Human Fertilisation Act 2008 are incompatible with Article 14 taken in conjunction with Article 8’.144 The ruling responded to the invitation by the Secretary of State to make a declaration of incompatibility under a 4(1) of the 1998 Act, in relation to sections 54 (1) and (2) of the HFEA Act 2008.145 The House of Lords debate on the matter and subsequent confirmation by the Minister on the introduction of a reparation order is evidence of the awareness and interest of the government and Parliament in the issues raised. It is also clear from the ‘Surrogacy in the UK’ Report and there is a call for reform and that support for the Greek Model is gaining traction. There is equal interest in the work of the Hague Conference on Private International Law and a future International Surrogacy Convention which is spearheaded by Paul Beaumont and Katrina Trimmings at the University of Aberdeen. The indications are that the UK will continue to successfully navigate the choppy waters of surrogacy.

 143

In the matter of Z (A Child) (No 2) [2016] EWHC 1191 (Fam), ibid [11]. 145 ibid [17]. 144

CHAPTER FOURTEEN A UNIQUELY BRITISH DEBATE? THE RELATIVE INVISIBILITY OF THE EUROPEAN CONVENTION IN THE EUROPEAN PRESS1 LIEVE GIES

Introduction European human rights law has been intensely debated in UK media for almost two decades. The debate was ignited in 1998 when the first Labour Government delivered on its election manifesto promise to ‘bring rights home’ and make the European Convention on Human Rights (ECHR) part of domestic law. During this time, the Convention has proved deeply controversial, with sections of the press openly calling for the repeal of the Human Rights Act 1998 (HRA). Some newspapers have also not shied away from advocating withdrawing from the ECHR, a scenario that is also regularly being mooted by the Government. In stark contrast to the UK, there is remarkably little discussion of European human rights law in other European media. It is not a running news story; neither is it an especially polemical subject as it is in the UK where in some respects the very term ‘human rights’ has become toxic. The ECHR is not particularly high on the political agenda in Europe and its status appears relatively uncontested at a time when populism is riding high and the suggestion of a ‘crackdown’ on human rights could conceivably be a vote winner. Specialists debating the issue away from the general news media seem to constitute the only forum where the ECHR is actively discussed. By the

 1

This chapter is based in part on Lieve Gies, ‘British human rights scepticism through the lens of the European press’ in Michelle Farrell, Eleanor Drywood and Edel Hughes (eds), Human Rights in the Media: Representation, Rhetoric and Reality (Routledge Forthcoming November 2017).

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same token, there also is limited discussion of the UK’s human rights scepticism and its agenda for reform in European media. This too is an issue that tends to go not just unnoticed but also unchallenged. Why is there this huge contrast between the UK and other European countries when it comes to media coverage of the ECHR? Why are the amount of attention and the tone of the public debate so strikingly different in the UK press? One possible explanation is that the constitutional and legal traditions in continental Europe are more closely aligned with those embedded in the ECHR, meaning that there is less potential for a clash with domestic law. Also, although Euroscepticism may be on the rise, there may be little cause for newspapers in Europe to rail against ‘foreign’ judges at the European Court of Human Rights (‘the European Court’ hereafter) because they and their audiences more readily see themselves as European. By contrast, as we know from the successful 2016 referendum to leave the European Union (‘Brexit’), it appears that many UK citizens, possibly a majority, may not be particularly wedded to a European identity. Against this backdrop, the foreignness of the Convention2 stands out all the more because its principles at times sit uneasily with the doctrine of parliamentary sovereignty (including the lack of a truly supreme Supreme Court in the UK), the tradition of negative freedoms enshrined in civil liberties and other elements of the UK’s uncodified constitution. The ECHR is an obvious target for Eurosceptic discourse: there is plenty of case law to fuel tabloid outrage about ‘meddling’ European judges or, alternatively, British judges seemingly giving precedence to a European source of law. These factors may explain why the ECHR is less contentious elsewhere in Europe but it does not fully account for its relative invisibility in European media, nor does it explain why there is such little counterweight to the agenda of human rights scepticism dominating sections of the UK press. Visibility, along with the ‘Europeanness’ of the news, is a key issue in relation to the European polity for ‘higher visibility about European politics provides citizens with information about the issues at stake (…) This condition is necessary (but insufficient) for a polity to function well’.3 On this interpretation, the lack of publicity given

 2

Katja S Ziegler, Elizabeth Wicks and Loveday Hodson, ‘The UK and European Human Rights: A Strained Relationship?’ in Katja S Ziegler, Elizabeth Wicks and Loveday Hodson (eds), The UK and European Human Rights: A Strained Relationship? (Hart 2015). 3 Hajo G Boomgaarden and Claes H de Vreese, ‘Do European Elections Create a European Public Sphere?’ in Claes de Vreese and Wouter van der Brug (eds),

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to the kind of human rights issues that have been consuming British commentators for years is positively disconcerting because it suggests that the European public is largely unaware of the ECHR’s contentiousness in the UK and the possible wider implications for the Convention’s future as an international human rights instrument. This chapter traces the causes for this apparent indifference back to the structural weaknesses of the European public sphere. It builds on research extensively documenting the lack of a communicative space that succeeds in bringing Europeans together to discuss issues of common concern. That the media are crucial in this regard is obvious because they function not just as an information provider but also as a debating forum. Thus, the weaknesses of the European public sphere reveal themselves both in the rather parochial outlook of European media, prioritising national politics to the neglect of the domestic politics of other European countries, but also in the neglect that pan-European issues equally suffer. News agendas across Europe show only a very limited degree of convergence, for example, there is little common focus on specific issues and news frames, hampering the development of a European public opinion. While the literature on the European public sphere is extensive and wide-ranging in some respects,4 it is also the case that the research tends to be exclusively focused on the European Union (EU), glossing over the fact that there are in effect ‘two Europes’.5 To date, there has been very little analysis of the ECHR, despite the fact that the Convention brings into a play some very different institutional arrangements and legal sources. This chapter argues that it is important to treat the representation of European rights law in European media as in an issue in its own right: while it is widely accepted that a European public sphere is ‘necessary’ in respect of EU governance, it is also specifically relevant in the context of the ECHR. This chapter proceeds as follows: the first section illustrates the extent of the neglect of the ECHR through a case study involving European news coverage of the 2012 Brighton conference where, under the presidency of the UK, signatory states negotiated about a British reform package. The second section constructs an explanation for the invisibility of this and other human rights-related topics with reference to the literature documenting the absence of a genuinely European public sphere. The final

 (Un)intended Consequences of EU Parliamentary Elections (Oxford University Press 2015). 4 Harmut Wessler and others (eds) Transnationalization of Public Spheres (Palgrave Macmillan 2008). 5 Ziegler, Wicks and Hodson (n 2) 4.

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section examines the normative basis for the creation of a European public sphere that is sufficiently inclusive of human rights.

European Press Coverage of the Brighton Conference In the UK, it is the press that is the most vocal in opposing the HRA.6 Press criticism is aimed at a wide array of targets, including human rights claimants, judges, government agencies and human rights organisations, in short, anyone who is seen to be championing human rights at home. The criticism does not just concern the domestic aspects of human rights embodied by the HRA, but it also extends to the ECHR and the European Court itself, prompting one judge to qualify the debate as ‘progressively frantic and ill-informed’.7 Indeed, a familiar line taken in the coverage is to accuse European judges of unduly interfering with internal British matters, echoing Eurosceptic arguments grounded in the notion of an existential threat to the nation-state. A classic example is the issue of prisoners’ voting rights in relation to which the European Court has repeatedly found against the UK, provoking much outrage among both politicians and media commentators.8 The Conservative Party has been consistently outspoken in its opposition to the HRA, in some cases playing to the gallery of a hostile press.9 In government, the pro-HRA Liberal Democrats who formed a coalition with the Conservatives from 2010 to 2015 tempered the latter’s ambitions to reform human rights law. The 2012 Brighton Conference coincided with this period of a relatively moderate reform agenda. However, the resulting Brighton Declaration was not the end of the matter: when the 2015 general election returned an all-Conservative Government,

 6

A possible reason for this is that newspapers are at much greater liberty to be partisan in their coverage because they are not subject to the strict impartiality rules that apply to broadcasters. A parallel can be drawn here with the Brexit campaign in which the newspapers were able to openly declare whether they wished Britain to remain in or leave the EU. See David Levy, Billur Aslan and Diego Bironzo, ‘The press and the Referendum Campaign’ in Daniel Jackson, Einar Thorsen and Dominic Wring (eds), EU Referendum Analysis 2016: Media, Voters and the Campaign (The Centre for the Study of Journalism, Culture and Community, Bournemouth University 2016). 7 Bernard McCluskey, ‘Human Rights, governments and judicial independence’ (2012) 5 European Human Rights Law Review 479. 8 Hirst v United Kingdom (no 2) (2006) 42 EHRR 41. 9 See e.g. Dominic Raab, The Assault on Liberty: What went wrong with rights (Fourth Estate 2009).

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it created scope for a more radical scenario, including withdrawal from the ECHR. Brexit produced a change of Prime Minister and a drastic government reshuffle. We know from Mrs May’s tenure as Home Secretary that she dislikes the HRA. Tellingly, during the Brexit referendum campaign, she argued that the UK should withdraw from the ECHR but remain in the EU. Since taking office, her administration has repeatedly indicated that withdrawal from the ECHR is no longer a remote possibility. In the words of Charles Falconer, former Labour Lord Chancellor and Justice Secretary, a turning point was recently reached in that the ‘unwillingness to withdraw’, hitherto shared by parties across the political spectrum, has vanished.10 Previously, under Prime Minister David Cameron, Conservative Government policy consisted of a two-pronged approach: reform of the HRA by replacing it with a ‘homegrown’ Bill of Rights and reform of the European Court. The Brighton Conference presented an opportunity to achieve the latter objective. The reform pursued by the British Government was based around the notion of greater subsidiarity, ‘meaning that sensitive political issues should be determined by national Parliaments, not the Court’.11 This was meant to give a clear signal to the Court that it should refrain from interfering with issues that had already been duly considered by national institutions. With only limited support from other signatory states, the gains made in the final drafts of the Brighton Declaration were only modest, something that was recognised by the former Attorney-General Dominic Grieve who played an active part in the Brighton negotiations.12 The reason for choosing the Brighton conference to exemplify coverage of the ECHR in the European press is that the proposed reforms, in contrast with some of the domestic debates about the application of human rights law in the UK, had a wider European significance and could therefore be presumed to have ample news value to the European news media. As far as the British national press was concerned, Brighton was indeed a relatively newsworthy event, reflecting the salience of the ECHR

 10

Charles Falconer, ‘Human rights are under threat – just when we need them most’ The Guardian (London, 3 January 2017) accessed 3 January 2017. 11 Helen Fenwick, ‘The Human Rights Act or a British Bill of Rights: creating a down-grading recalibration of rights against the counter-terror backdrop?’ [2012] Public Law 468, 485. 12 Dominic Grieve, ‘Is the European Convention working?’ (2015) 6 European Human Rights Law Review 584, 593.

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as a news topic. While it was not dominating the news agenda, there was a moderate amount of coverage in most national newspapers, including some of the tabloids (Daily Mail, Express and The Sun). A dominant theme of the Brighton coverage was the extent of disagreement between various parties over the success/failure of the proposed reforms, along with an assessment of whether these parties would either impede or aid the implementation of the reforms. The focus of the coverage was overwhelmingly on the UK’s stake in seeing the European Court reformed, with only very limited reference to the position of other signatory states. Very few articles engaged with the question of how the reforms would be viewed by citizens and governments elsewhere in Europe: however, Russia was quoted in the coverage by an Amnesty International source as a country that would be emboldened to disregard human rights further by the proposed changes, resulting in a deteriorating human rights record.13 In contrast to the UK press, the conference generated very little coverage in other European newspapers, represented in this study by the Dutch, French, German, Italian and Irish national press. The volume of articles that was retrieved through the Nexis database, a tool that is widely used for archival newspaper research, was small. Take the Republic of Ireland, a country that has very close historical, economic, political and geographical ties with the UK. A reasonable assumption is that its national press would take an interest in the reform package closely pursued by its direct neighbour. Nevertheless, only one relevant article could be retrieved: this involved an opinion piece in The Irish Times by the Executive Director of Amnesty International Ireland making the case that Ireland should support the European Court in the face of the challenges posed by the British reform agenda.14 Coverage of the Brighton reforms was the most extensive in the French press. After the Irish press, it was the German press that featured the least amount of coverage (as measured by the number of articles). The event was also reported in three main national Dutch dailies (NRC Handelsblad, de Volkskrant and het Parool). Although the coverage of Brighton overall was very modest, the few available articles made a visible effort to see the issue from a British

 13 Tom Parfitt, ‘European Court of Human Rights reforms could have ‘devastating’ effect in Russia’ The Telegraph (London, 17 April 2012) < www.telegraph.co.uk/news/worldnews/europe/russia/9207908/European-Courtof-Human-Rights-reforms-could-have-devastating-effect-in-Russia.html> accessed 20 June 2017. 14 Colm O’Gorman, ‘Ireland should champion Strasbourg court’ The Irish Times (Dublin, 2 April 2012) 6.

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perspective: they tried to explain in some detail what the UK’s concerns were in regard to the European Court. It was also reflected in the fact that two key newspaper titles offered a platform to British voices to explain the reforms: in the case of Le Figaro, this took the form of an opinion piece authored by the Justice Secretary Ken Clarke,15 while, in the NRC Handelsblad, it involved an interview with the Attorney General Dominic Grieve.16 Oppositional voices were also heard in Libération featuring an interview with the former president of the European Court, Jean-Paul Costa,17 and in The Irish Times, where it was Amnesty International that was given a platform to outline its concerns about the reform package.18 In summary, there were pockets of cosmopolitanism, involving explicit support for the European Court, to be detected in what otherwise testifies to a parochial neglect of an issue of Europe-wide significance.

Media Coverage of the ECHR in the European Public Sphere Writing about the ECHR in French law, Grewe notes: (…) how modest French public debates on Convention rights have been. On the whole, these debates gained only the attention of specialists as they are related to quite technical subjects (…) Some serious problems have failed to attract wider public interest.19

Similarly, Rackow observes how cases similar to the ones that have sparked heated public debate in the UK have failed to generate the same level of public discussion in Germany.20 Specialist discussion aside, it appears that the ECHR is not routinely or frequently a topic of public debate in signatory states, with Britain being the one notable exception. However, it is important to emphasise that, apart from some anecdotal evidence, little is known about the extent to which the Council of Europe

 15

Kenneth Clarke, ‘Pour une véritable Europe des droits de l’homme’ Le Figaro (Paris, 8 April 2012) 17. 16 Mark Beunderman, ‘Mensenrechtenhof in Straatsburg moet minder zaken aannemen’ NRC Handelsblad (Amsterdam 5 April 2012) Buitenland section. 17 Marc Semo and Sonia Delesalle-Stolper, ‘La Cour des droits de l’homme en accusation’ Libération (Paris, 17 April 2012). 18 O’Gorman (n 14). 19 Constance Grewe, ‘The ECHR in French Law: Status, Implementation and Debates’ in Ziegler, Wicks and Loveday (n 2) 359. 20 Julia Rackow, ‘From Conflict to Cooperation: The Relationship Between Karlsruhe and Strasbourg’ in Ziegler, Wicks and Loveday (n 2).

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and the European Court are the subject of media debate across Europe, as large-scale empirical data is simply lacking. By contrast, there is a sizeable amount of research involving the not dissimilar question of how EU institutions fare in European media. It should be noted that the literature reviewed in this section is mainly preoccupied with the EU, but many of its findings and arguments are equally applicable to the ‘other Europe’ represented by the ECHR. The question of how EU institutions are represented has to be seen against the backdrop of a longstanding debate regarding the existence, or rather non-existence, of a European public sphere. A European public sphere, just like the original model developed by Habermas,21 would require pan-European Öffentlichkeit aimed at monitoring and developing a common discourse regarding European issues, a discourse that is prominently but not exclusively geared towards the European Union. The function of the public sphere in a democratic society is to allow civil society to monitor political institutions closely and hold them to account without usurping their role. A prominent, if imperfect, manner in which the ideal-typical public sphere manifests itself in practice is through the mass media as these provide the channels facilitating the kind of informed and rational debate that is necessary to promote political accountability. Empirically, the public sphere is very much in evidence in democratic countries through the fact that there is a degree of open discussion about matters of public concern, albeit that the system has several shortcomings, such as the lack of media access for disenfranchised groups, hampering their participation in public debate. The normative foundations of the European public sphere will be explored in further detail in the next section. Suffice it to say for now that, ideally, all European institutions should be subjected to a process of close monitoring in order to ensure a degree of transparency and accountability to the peoples of Europe. Just as in national politics, one would reasonably assume that media infrastructures across Europe have an important role to play in achieving a well-functioning European public sphere. According to Statham: Media performance is central to any debate about a European public sphere, since media actors are entrusted with making the European level visible and accessible to citizens. Without an effective media providing a supply line of political information, which allows people the opportunity to see, think, and make decisions about the European level, it would matter



21 Jurgen Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society (MIT Press 1989).

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However, there are number of obstacles that stand in the way of achieving this idea. There is a lack of truly European media, that is, media platforms that have a pan-European reach and target audiences in all, or at least several, member states.23 Language barriers and significantly differing media systems are two of the most obvious obstacles preventing the emergence of a European public sphere. At first glance, the internet should be capable of facilitating some level of pan-European public debate, at least for those who possess the necessary skills, such as the ability to converse in a non-native language.24 Nevertheless, there seems to be a dearth of media channels through which citizens from across Europe can communicate with each other to debate matters of common concern. According to Novy: ‘This, then, is the rub: the European peoples do not ‘talk’ to each other’.25 In the absence of an overarching, Europe-wide communication system, a proxy measure involves the extent to which the content of national news media has been ‘Europeanized’ by incorporating European issues. Europeanization principally takes on two forms.26 In its vertical dimension Europeanization means the extent to which national media cover the politics and policies of ‘Brussels’, whereas in its horizontal dimension it involves national media covering domestic political debates that take place in other European countries. Vertical Europeanization is about the extent to which media across Europe report on the central, overarching institutions that impact on the lives of all European citizens; horizontally, it is about the extent to which national public spheres pay attention to one another, for example, how much interest British media take in the domestic affairs of France, Germany, Italy, Poland, and so on. Other

 22

Paul Statham, ‘Introduction: Europe’s Search for a Public’ in Ruud Koopmans and Paul Statham (eds) The Making of a European Public Sphere: Media Discourse and Political Contention (Cambridge University Press 2010) 4. 23 Marcel Machill, Markus Beiler and Corinna Fischer, ‘Europe-Topics in Europe’s Media: The Debate about the European Public Sphere: A Meta-Analysis of Media Content Analyses’ (2006) 21 European Journal of Communication 57; Leonard Novy, Britain and Germany Imagining the Future of Europe: National Identity, Mass Media and the Public Sphere (Palgrave 2013). 24 Koopmans and Statham (n 22). 25 Novy (n 23) 2. 26 Michael Brüggemann and Katrina Kleinen-von Königslöw, ‘Let’s talk about Europe: Explaining vertical and horizontal Europeanization in the quality press’ (2009) 24 European Journal of Communication 27.

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features of Europeanization include the synchronisation of news agendas27 or ‘congruence’28 in what passes for news in different countries. On the ground, European media display a mixed record in relation to both vertical and horizontal Europeanization. There is relatively little attention on the EU,29 with ‘bread and butter issues’ often treated as too technical and too complex, resulting in an over-emphasising of its moments of upheaval at the expense of its more straightforward day-today business.30 This, in turn, cements the image of the EU as perpetually in crisis. There is also limited coverage of domestic politics in other EU countries. To some extent, this picture depends on the type of media, for example, quality newspapers versus tabloids, although this difference may not be as great as is often assumed.31 There are also important differences between countries, meaning that some national media systems are more cosmopolitan in their outlook compared to others. A British quality newspaper like The Times, for example, has been noted for its ‘parochial’ perspective,32 neglecting much of what is going on in continental Europe, whereas its French counterpart Le Monde ranks among the most cosmopolitan newspapers in Europe. Ironically, this does not prevent The Times from being the newspaper that is most frequently cited by other European newspapers,33 which suggests that it occupies a very influential position as an international opinion maker. It is clear that UK media representations of the EU are in a league of their own. The jury is still out when it comes to the role of the media in the outcome of the Brexit referendum but prima facie it appears to have been considerable.34 As far as the issue of EU integration is concerned, UK media frames are very distinct: for example, the sovereignty theme figures much more prominently in the British press than it does in the other

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Novy (n 23) 63. Barbara Pfetsch, Silke Adam and Barbara Eschner, ‘The Media’s Voice over Europe: Issue Salience, Openness, and Conflict Lines in Editorials’ in Koopmans and Statham (n 22) 153. 29 Machill, Beiler and Fischer (n 23). 30 Lonneke van Noije, ‘The European paradox: a communication deficit as long as European integration steals the headlines’ (2010) 25 European Journal of Communication 259. 31 Pfetsch, Adam and Eschner (n 28) 157. 32 Brüggemann and Kleinen-von Königslöw (n 26). 33 Giuseppe Alessandro Veltri, ‘Information flows and centrality among elite European newspapers’ (2012) 27 European Journal of Communication 354. 34 Jean Seaton, ‘Brexit and the Media’ (2016) 87 The Political Quarterly 333. 28

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European press.35 Moreover, media coverage has become progressively more hostile over time. One author argues that there has been a remarkable transition from ‘permissive consensus’ when the UK first joined the EEC in the early 1970s to present-day ‘destructive dissent’ in its media.36 Another one points to a ‘plethora of oversimplified and hostile stories about the EU in the British press, even in the quality papers’.37 While Britain certainly does not have a monopoly over Euroscepticism, it is much more pronounced in British media described as holding ‘the very hardest of ‘hard’ variants of Eurosceptical opinion’.38 ‘Europe has nearly always been reported as a “problem”, not as a good thing’, noted Seaton in the aftermath of the Brexit referendum. 39 It is little surprise, therefore, that strong scepticism about the EU also has a tendency to spill over in unrelated areas loosely grouped together under the same umbrella of ‘Europe’. An almost inherent inability to distinguish between different European institutions in part explains why Euroscepticism also manifests itself in media coverage of European human rights.

Normative Principles for a Human Rights-oriented European Public Sphere The discussion in this chapter so far has highlighted how the European public sphere operates in a media context and what some of its principal shortcomings are. This section turns its attention to the normative aspects of the European public sphere to explain not just why it is important that media content should be sufficiently Europeanized but also why this process of Europeanization should allow scope for a robust public discussion of human rights. The case for a vibrant European public sphere has already been mapped out elsewhere;40 this section will seek to identify whether there are any specific arguments for giving greater visibility to European human rights law. These arguments centre around the importance of enabling democratic oversight of the European Court’s decision making through the articulation of public opinion, creating the conditions for a robust and wide-ranging discussion of human rights more

 35

Juan Diez Medrano and Emily Gray, ‘Framing the European Union in National Public Spheres’ in Koopmans and Statham (n 22). 36 Oliver Daddow, ‘The UK media and ‘Europe’: from permissive consensus to destructive dissent’ (2012) 88 International Affairs 1219. 37 van Noije (n 30) 261. 38 Daddow (n 36) 1220. 39 Seaton (n 34) 336. 40 See e.g. Wessler et al (n 4).

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generally and ensuring that participation in such a debate is sufficiently inclusive.

Tackling the Democratic Deficit A dominant argument in favour of the creation of a thriving European public sphere is that this would help to overcome the EU’s democratic deficit and strengthen its legitimacy. In part, this is as a result of the fact that, especially in its early stages, European integration was mainly accomplished by political elites operating away from the public limelight.41 As a result, the European public was left in the dark as to why and how European institutions were evolving. Moreover, the discursive vacuum created by this communication blackout was easily filled by the kind of anti-EU rhetoric that has tended to thrive in Eurosceptic media. A vibrant European public sphere in which the relevant institutions try to stimulate public discussion and willingly submit to public scrutiny is generally seen as a way of persuading citizens of the merits of the European project. Thus, there is a ‘consensus that the European public sphere can foster the development of transnational democracy in Europe and mitigate the EU’s democratic deficit’.42 The democratic deficit argument mainly sees strengthening the European public sphere as a remedy for the poor public relations that have left EU institutions vulnerable to the accusation that they are out of touch and lack legitimacy. Is there a comparable democratic deficit in respect of the European Court? The doctrine of the margin of appreciation whereby the Court recognises that there are circumstances in which states should be allowed some latitude in interpreting their obligations under human rights law demonstrates that it is only too aware that it cannot rival the democratic legitimacy of national institutions.43 There is a body of opinion that states should be allowed an even greater margin of appreciation.44 Take for example, Lord Hoffmann’s trenchant criticism that: ‘[i]n practice, the [European] Court has not taken the doctrine of appreciation nearly far

 41

Jos de Beus, ‘The European Union and the Public Sphere: Conceptual Issues, Political Tensions, Moral Concerns, and Empirical Questions’ in Koopmans and Statham (n 22). 42 Cristian Nitoiu, ‘The European Public Sphere: Myth, Reality or Aspiration’ (2013) 11 Political Studies Review 26, 27. 43 Andrew Legg, Margin of Appreciation in International Human Rights Law: Deference and Proportionality (Oxford University Press 2012). 44 Ed Bates, ‘The UK and Strasbourg: A Strained Relationship – The Long View’ in Ziegler, Wicks and Hodson (n 2).

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enough. It has been unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States’.45 One of the grievances aired in sections of the UK press is that the judges of the European Court through their interventions in human rights cases are unduly interfering with the proper democratic process. It is a criticism that judges generally are vulnerable to because of the fact that they are unelected and because they need to be seen as impartial, which, within a certain subset of media frames, easily translates into the negative perception that they are removed from everyday life. However, when it comes to European judges, there is the additional charge in some of the media that they are not just unelected but also powerful foreign actors who are trying to disrupt national sovereignty. The democratic deficit therefore arises when European judges are seen as insufficiently representative but also culturally insensitive to the communities affected by their judgments. It is, of course, difficult to gauge how widespread such perceptions are; however, a salutary lesson from the EU experience is that these can be exacerbated by a lack of communication. Ensuring that human rights issues have prominence in the European public sphere would at the very least enhance transparency by exposing audiences to some of the basics of the ECHR, including the question of who the judges are, the kind of rights that they are upholding and the circumstances in which it may be appropriate to curtail certain rights. While the democratic deficit argument is predominantly about protecting European institutions46 against the critique that they are not representative and accountable, a thriving European public sphere should first and foremost benefit citizens. After all, as Fraser points out: ‘a public sphere is conceived as a vehicle for marshalling public opinion as a political force’.47 If Europe in its many different aspects is more visible through its inclusion in media discourse, this could create opportunities for a greater public ownership of European laws and policies. Media coverage

 45

Lord Hoffmann, ‘The Universality of Human Rights’ (Judicial Studies Board Annual Lecture, 19 March 2009) [27] accessed 19 February 2017. 46 Possibly more narrowly the executive branches, according to Koopmans. Ruud Koopmans, ‘Who Inhabits the European Public Sphere? Winners and losers, supporters and opponents in Europeanised political debates’ (2007) 48 European Journal of Political Research 183. 47 N Fraser, ‘Transnationalizing the Public Sphere: On the Legitimacy and Efficacy of Public Opinion in a Post-Westphalian World’ in Kate Nash (eds) Transnationalizing the Public Sphere (Polity 2014) 9.

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should be sufficiently balanced and wide-ranging so that citizens are able to exercise their own critical judgment about the strengths and weaknesses of the European project. Armed with information that does not hesitate to challenge the institutions’ own narratives of legitimation, audiences should be more readily able to see themselves as active stakeholders who can shape Europe’s future for the collective good. Through their participation in the formation of a public opinion that is effective in influencing the institutions concerned they should accumulate what Habermas calls ‘communicative power’.48

Argumentation and Contestation Free and open discussion has a tendency to be antagonistic: ‘a transnational European public is not to be mistaken as a harmonious gospel choir’, notes Kantner.49 In Fraser’s words: ‘insofar as the process is inclusive and fair, publicity is supposed to discredit views that cannot withstand critical scrutiny and to assure the legitimacy of those that do’.50 When it comes to the Council of Europe but also the European Court, this means that it is not just views that are favourable to their own vision that should be accommodated. The European Court may be a judicial entity; its influence is undeniably political, which calls for an appropriate level of democratic scrutiny. Such is the scope of freedom of expression that it also extends to views that may be deeply unpopular. The public sphere should operate on the basis of equal access so that it is not just one particular viewpoint that dominates. This does not mean that in the debating arena all ideas should be treated equally; the whole point of the debate is to test which of them stands up to closer scrutiny. Views that are excluded from the debate cannot be tested in this manner, which is why it matters fundamentally to have a diversity of perspectives. How far this principle can be stretched is always a delicate question: morally reprehensible viewpoints pose a particular challenge. Equally challenging is the issue of fair and equal access. Structural shortcomings, for example, regulations that allow for media ownership to be heavily concentrated in the hands of just a few players but also particular forms of bias that exclude specific groups, for example, women, also make equal access problematic. In an ideal scenario, however, the legitimacy of the debating process, which

 48 Jurgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (William Regh (tr), Polity 1996). 49 Cathleen Kantner, ‘The European Public Sphere and the Debate about Humanitarian Military Interventions’ (2014) 23 European Security 409, 421. 50 Fraser (n 47) 8.

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derives from its inclusive nature, should make views that get past a critical debate acceptable even to those who may not necessarily share them. The fairness of the procedure matters more than the outcome. The need for ideas to be put through a stress test provides a strong and compelling reason for ensuring that laws and policies pertaining to human rights are sufficiently visible in the public sphere. By their very nature, rights are evolving entities, meaning that the debate concerning their scope and application cannot be considered to have been settled once and for all. The political landscape that gave rise to the ECHR is very different from today’s: ‘What was originally more of a collective pact against totalitarianism evolved into more of a European bill of rights’.51 That is why it is matters when an important initiative such as the British reform agenda, of which the Brighton conference was very tangible evidence, is only receiving limited attention in the European press. One of the norms for gauging a well-functioning European public sphere is the extent to which news agendas converge, meaning that important issues should be simultaneously debated as it ‘enables citizens to take positions at the same time on same topics of same relevance’. 52 Moreover, news convergence is not just about a synchronicity of topics but also requires giving sufficient exposure in domestic media to viewpoints that are dominant or important in other European countries, if only for the simple yet weighty reason that in the European polity there is a high degree of interconnectedness between ideas put forward in one country and the pan-European level of policymaking.53 The low-key coverage of the Brighton conference meant that it was a missed opportunity to involve stakeholders from all over Europe and draw their attention to the significance of an issue that would have potential implications for people outside the UK. The present state of the debate in European media arguably does not allow for sufficient scrutiny of the kind of arguments made in British domestic media regarding the ECHR, including those that lean towards the radical option of a British withdrawal that could drastically impact on how human rights in Europe operate.

Inclusiveness It is not unimportant to labour the point that the EU and the ECHR are not one and the same. Frustratingly, the distinction is frequently lost on

 51

Bates (n 44) 43. Habermas quoted in Wessler and others (n 4) 14. 53 Wessler et al (n 3). 52

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journalists. For example, some of the coverage of the Brighton conference in the British press erroneously attributed the reforms to the EU, although in one instance involving an article in the online edition of the Independent, this was later rectified on the newspaper’s website.54 The European public sphere literature, on the other hand, has hitherto shown very little interest in the ECHR, treating ‘Europe’ and the EU as virtually interchangeable.55 While there will undoubtedly be many parallels in the way in which European media report on the EU and the ECHR (conflation of these institutions being an obvious illustration), it remains the case that these two pillars of European law are very distinct. It is therefore important that sufficient publicity is afforded to each of these within the European public sphere but also that the latter should be thought of in more expansive terms. At its core, this argument draws on what Fraser terms the ‘all-affected principle’: it holds that all potentially affected by political decisions should have the chance to participate on terms of parity in the informal process of opinion formation to which the decision-makers should be accountable56

and the all-affected principle holds that what turns a collection of people into fellow members of a public is not shared citizenship, but their coimbrication in a common set of structures and/or institutions that affect their lives.57

This principle is capable of providing a normative basis for conceptualising the European public sphere as inclusive of all who are subject to European law in all its diversity, including the ECHR. While the debate about the EU is often couched in terms of citizenship, and even more narrowly the electorate,58 the all-affected principle envisages a much wider constituency for the European public sphere. This is also

 54

Martin Beckford, ‘Clarke hails EU court reform…but its leader says nothing has changed’ The Daily Telegraph (London, 20 April 2012) 5; Terri Judd, ‘Clarke clashes with EU court chief over reforms’ The Independent (London, 19 April 2012) accessed 21 June 2017. 55 For a study that also extends to the Council of Europe see Koopmans (n 46). 56 Fraser (n 47) 29. 57 Fraser (n 47) 30. 58 Boomgaarden and de Vreese (n 3).

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undoubtedly relevant for EU matters, but it is especially appropriate in relation to the ECHR which is not just geographically more extensive but also, importantly, does not discriminate on the basis of citizenship. Indeed, it is this feature of human rights that tends to make them especially unpalatable to parts of the media. For example, one of the tropes of the anti-human rights discourse that can be detected in some of the press coverage in the UK is that the HRA and the ECHR offer rights protections that are excessive precisely because they extend to the disenfranchised, including prisoners and asylum seekers. At the same time, there is also the criticism that human rights are not inclusively enough: this is clearly intimated by the tabloid cry of ‘what about our rights?’,59 the contention that ‘good’ citizens do not benefit from human rights laws, suggesting that the latter ought to operate on a quid pro quo basis. In the past, there have been well-intentioned campaigns, for example by the UK’s Equalities and Human Rights Commission, to raise awareness of how human rights benefit a wide range of people, but the narratives that are produced in this way are surprisingly reticent to defend the importance of protecting the rights of what can be called ‘the least deserving’ in the tabloid taxonomy of rights worthiness.60 A clear normative basis for widening the terms of access of the European public sphere is that it allows those who are demonised for bringing human rights claims to have a say. Media ethics literature has long recognised the importance of giving voice to marginalised groups who are frequently the object of public debate but rarely participate in it on an egalitarian basis.61 By virtue of the all-affected principle, human rights warrant a European-wide debate that actively seeks to include the very groups that are otherwise at risk of being negatively stereotyped for seeking human rights protection. By the same token, it is important that public forums do not ignore the concerns of those who, for whatever reason, do not feel that human rights law sufficiently protects them.

 59

See e.g. Michael Seamark, Sam Greenhill and Paul Sims, ‘What about our rights? Husband’s fury after Somali gunman was left free to kill WPC because to deport him would have infringed his rights’ Daily Mail (London, 20 December 2006) 1; Oliver Harvey and Andy Russell, ‘What about our rights?’ The Sun (London, 6 January 2007). 60 Lieve Gies, Mediating Human Rights: Media, Culture and Human Rights Law (Routledge 2014). 61 Roger Silverstone, Media and Morality: On the Rise of the Mediapolis (Sage 1999); Lilie Chouliaraki, The Spectatorship of Suffering (Sage 2006).

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Conclusion This chapter has highlighted a potentially significant contrast in the levels of media publicity afforded to the ECHR in the UK and in other signatory countries. Although currently there is no large-scale empirical data available, the case of the Brighton conference and the way in which it was covered in the European press serves as an illustration of the gulf between the UK and the rest of Europe. An event that was manifestly important to the wider European public was largely ignored in a section of the continental European press. Such neglect suggests that the anti-human rights rhetoric that been unrelenting in parts of the UK press may not only go unnoticed but also unchallenged in other European media, despite the potential ramifications for the European human rights polity as a whole. The absence of a Europe-wide public debate can be attributed to generic failures of the European public sphere. Media research has mainly tended to focus on the EU; yet, much of its empirical and theoretical insights are relevant in explaining the absence of public debate in relation to European human rights law. The concept of vertical Europeanization lends support to the hypothesis that public opinion in Europe is to a large extent underinformed about the ECHR, while the horizontal axis suggests that the neglect of the UK’s domestic debate fit a wider pattern whereby European media tend to pay only limited attention to each other’s national public spheres. Drawing on the European public sphere literature, a large part of this chapter was devoted to exploring why the ECHR should be more visible. The democratic deficit argument is about placing human rights law within the sphere of influence of public opinion and empowering the European public to influence its direction. The public scrutiny argument supports the notion that human rights should be actively discussed in order to establish which viewpoints withstand the stress test and deserved to be treated as legitimate. Finally, the inclusivity principle advocates that everyone, regardless of their status, should be given a voice: this should include human rights claimants but also give those who feel left behind by human rights policies a space to articulate their concerns. All of these arguments highlight the importance of a commons that enables the free exchange of views across the very broad constituency envisioned by the ECHR. The media in Europe, especially those platforms that do not simply act as echo chambers for preconceived ideas, remain an imperfect but indispensable intermediary in realising this vision of a European public sphere that allows space for a Europe-wide debate of human rights.

CHAPTER FIFTEEN WHAT WILL BECOME OF EU LAWS ON THE UK STATUTE BOOK AFTER BREXIT? VICTIMS’ RIGHTS AS A CASE-STUDY RICHARD LANG

Part I: Introductory Remarks– The Overbrimming Summer As the shock of the EU Referendum result sank in, academics spent the summer of 2016 wondering what might become of the European Union Law which currently forms part – in fact a large part – of the “UK statute book” after a (supposed) revoking of the European Communities Act 1972 (“ECA”).1 I use the term “UK statute book” in a loose sense to mean not only legislation produced at the Westminster Parliament and applying throughout the United Kingdom, but also that applying only to England and Wales, only to Great Britain, only to Scotland, only to Wales and only to Northern Ireland,2 as well as that produced in the devolved institutions of the latter three devolved territories. The fate of EU Regulations seemed sealed, in that they relied on the ECA in toto for their entry into, and applicability in, UK Law. The Act is a sort of skylight in the Palace of Westminster, the closing of which was

 1

The subtitles of Parts I, IV, V and VII are taken from/ inspired by ‘To Autumn’ by John Keats. 2 As Hazell makes clear, there are very few Westminster Acts in the latter three categories. Writing in 2007 in respect of the first five years of devolution (19992004), he gives the figures as two, three and ten respectively. It should be noted that Westminster requires the consent of the Scottish Parliament to legislate on devolved matters (via legislative consent motions), although has a much stronger hand vis-à-vis the National Assembly for Wales: R Hazell, ‘Westminster as a Three-in-One Legislature for the United Kingdom and its Devolved Territories’ (2007) 13(2) Journal of Legislative Studies 254, 256.

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likely to see Regulations bounce off and into the Thames. There also seemed to be little controversy in respect of Treaty provisions, as the UK was still bound by these in international law until such time as the Treaties concerned were changed or terminated. Subsequent developments have cast doubt even on these basic predictions, as will be discussed hereafter.3 Meanwhile, EU Directives provoked a difference of opinion, with some opining that since the ECA granted Parliament the power to carry out their transposition, any repeal of the Act would simultaneously repeal all laws made under said power. I call this outcome “depotentiation”. Others took the view that the laws transposing EU Directives into national law were just that – national law – and would therefore continue to have legal effect even after a repeal of the ECA. I call this outcome “divorce”, as its effect, legally speaking, is to divorce the transposing act from the parent directive, even though both of these will continue to have the force of law in their respective legal systems. The structure of the present article will be, in Parts II and III, to investigate these two possible outcomes in turn. In both parts, case law is also examined from the Common Law jurisdiction of South Africa. This is considered especially useful as the post-Apartheid Government in the latter country faced a similar task to that of the post-Brexit Government in the UK in having to process a vast swathe of irrelevant or illegal legislation in a short period of time. In Parts IV and V, I will consider the impact, if any, of, firstly, Prime Minister May’s speech in Birmingham of 2 October 2016, and, secondly, her speech at Lancaster House on 17 January 2017 and the Brexit White Paper which followed it. Part VI then takes victims’ rights as a case study, with a particular though not exclusive focus on Directive 2012/29 (the Victims’ Rights Directive),4 in order to test the conclusions reached thus far. The article closes with a Global Conclusion in Part VII.

Part II: Depotentiation This argument has been put forward, inter alia, in postings on the UK Constitutional Law Association blog, for example, shortly after the Referendum, constitutional expert Stephen Laws commented:

 3

Below, Part IV and V. Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA [2012] OJ L315/57. 4

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And EU Law expert Anthony Arnull wrote in the same blog: There might even be an argument that existing national rules giving effect to directives would be rendered invalid unless preserved by new legislation. 6

A potential source for this argument’s underlying axiom, namely that subordinate legislation should be regarded as impliedly repealed upon the repeal of the enabling statute, is what Johnson has helpfully called the “common law repeal rule”,7 deriving inter alia from an English judgment handed down by the Court of Common Pleas in 1830, Kay v Goodwin.8 At that time, when an individual became bankrupt, he or she could expect to have a “commission” issued against him or her by Commissioners who had heard evidence proving the bankruptcy and been satisfied by it. However, parties seeking a remedy under the commission, such as assignees of the bankrupt, were required first to “enroll” the commission under the Bankrupt Law of 1732.9 Kay, the assignee of a bankrupt called Sherwin, against whom a commission had been issued in 1822, delayed enrolling the commission till after the repeal of the Bankrupt Law of 1732 by the Bankrupt Law of 1825. As nothing in the new statute suggested that it applied to commissions that were issued before it came into effect, Tindal CJ ruled that Kay’s lately-enrolled commission could not now be offered in evidence as it had never been duly enrolled. The Lord Chief Justice held: I take the effect of repealing a statute to be, to obliterate it as completely from the records of the parliament as if it had never passed; and, it must be considered as a law that never existed, except for the purpose of those

 5

See comments below N Barber, T Hickman and J King, ‘Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role’ (UK Const L Blog, 27 June 2016) accessed 30 June 2017. Comment of Laws on 29.6.16. 6 ibid. Comment of Arnull on 6.7.16. It is also the approach taken by the House of Commons Library; see JS Caird, ‘Legislating for Brexit: the Great Repeal Bill’ (Briefing Paper No 7793, House of Commons Library 2016) 13. 7 P Johnson, ‘Ratione temporis, European law and the repeal of EU instruments’ [Apr 2015] PL 258, 261. 8 Kay, Assignee of Sherwin v Goodwin (18 May 1830) 6 Bing 576. 9 5 G.2, c. 30.

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actions which were commenced, prosecuted, and concluded whilst it was an existing law.10

It could be argued that further authority is to be found, courtesy of Parliament, in the Interpretation Act 1978, s17(2)(b), s17 being entitled “Repeal and Re-enactment”. S17(2)(b) reads: (2) Where an Act repeals and re-enacts, with or without modification, a previous enactment then, unless the contrary intention appears,— (a) [...] (b) in so far as any subordinate legislation made or other thing done under the enactment so repealed, or having effect as if so made or done, could have been made or done under the provision reenacted, it shall have effect as if made or done under that provision.

This comes close. However, with its focus on re-enactment of the enabling statute, it does not seem to quite do the job. Rather subsection 2(b) must be read a contrario as saying that, where the original enabling statute has given rise to the making of any subordinate legislation or the doing of any thing, the legislation made or thing done, or having effect as if so made or done, if it could not “have been made or done under the provision re-enacted” shall not “have effect as if made or done under [the new enabling statute]”, all this of course in the absence of any contrary intention stated in the new enabling statute. From this it might be inferred that subordinate legislation which finds no successor power in the new enabling statute to substitute the one under which it was made in the old enabling statute, now lies defunct. But this is not explicit, and in theory at least such subordinate legislation might continue to live an independent life: x as if made under the original enabling statute; x as if made under some other statute, or x causa sui motus11 The courts meanwhile seem to have interpreted s17(2)(b) as meaning that in theory the “thing done” under the prior statute, if not resuscitated, cannot survive at all. This for example would have been the fate of a

 10

Kay (n 8) 582-3. Its own first cause. From T Aquinas, Summa theologiae, Opera Omnia (Leonine edition, Typographia Polyglotta SC de Propaganda Fide 1889) vol 5, First Part, question 83, article 1, objection 3 and reply. 11

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Restraining Order made against Andrew Monument, a paedophile, purportedly under the Sex Offenders Act 1997, when the latter act was replaced by the Sexual Offences Act 2003.12 In the Local Government context, Professor Cross certainly seems to have understood the Act as meaning that the subordinate legislation, following the death of the parent statute, and in the absence of any repotentiation via its replacement, now itself lay defunct: By-laws made under a statute which is then repealed cease to have effect unless either the repealing Act contains some provision preserving the validity of the by-law, or the by-law making power is itself re-enacted [in which case] unless the contrary intention appears, the by-law has effect as if made under the new provision.13

In South Africa, this exact finding, namely that subordinate legislation should be regarded as impliedly repealed upon the repeal of the enabling statute, was made by judges in cases in 1932 and 1936,14 both precedents then followed in a case of 1961, R v Madine, where the court was concerned to know whether a certain Proclamation (Proclamation 150 of 1934), made under a certain Act (Act 38 of 1927), had or had not survived the repealing of the latter Act by a subsequent Act of 1952. The court held: No provision was made in Act 67 of 1952 for the preservation of regulations made under sec 28 of Act 38 of 1927 after its repeal, and it follows therefore, that upon the repeal of the latter section, Proc 150 of 1934 ceased to have any validity.15

A certificate issued under said Proclamation, upon which the accused was relying, had thus similarly ceased to have any effect.



12 R v Andrew Monument [2005] EWCA Crim 30, [2005] 2 Cr App R (S) 57. In the event, though, the Restraining Order was invalidated on a different ground, namely, that it was never made under the 1997 Act to begin with. 13 CA Cross and S Bailey, Cross on local government law (8th edn, Sweet & Maxwell 1991-1996) §6-15, footnotes omitted, emphasis added. The resolution of the issue in particular relation to by-laws is perhaps helped, though, by the existence of a discreet authority on the subject: Watson v Winch [1916] 1 K.B. 688. 14 Lockhat Bros & Co Ltd v Minster of Finance 1932 NPD 469; Hatch v Koopoomal 1936 AD 190. 15 R v Madine 1961(3) SA 29 (Appellate Division) 30 (Botha JA).

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Part III: Divorce In Part III, it is the divorce argument’s turn to be considered. After a short introduction, there will be a slight digression as the mechanics of the importation of EU Law into UK Law, as they stand at the moment, are examined. Possible sources for the argument will then be identified and analysed. Of the two arguments offered, it is submitted that this is the more intuitively correct.16 How, after all, where transposition of EU Directives into UK Law has taken place via primary legislation at Westminster, could an Act of Parliament signed by the Queen cease to be good law without its being expressly repealed by a subsequent Act? The fact that must be faced from the outset is that when we talk of subordinate legislation being impliedly repealed upon the repeal of the enabling statute, we are contemplating normal subordinate legislation (most commonly, a statutory instrument which a Minister draws up and lays before Parliament) being impliedly repealed upon the repeal of a normal enabling statute (that is, a prior Act of the British Parliament expressly giving the Minister concerned the power to act in this way). There is nothing normal about the European Communities Act 1972, the actions which it enables, or the myriad ways in which those actions are carried out. A quick recapitulation of the process (from the UK constitutional law point of view) by which Directives are implemented in the UK may be helpful. It is obvious that Directives, not being directly applicable, require action for their implementation. The European Communities Act 1972, which implemented into domestic law the Treaty of Accession which Britain signed on 22 January 1972, was designed inter alia to deal with this issue, and it did so by introducing a general power to make subordinate legislation to cover future as well as (some) present European Economic Community (“EEC”) instruments. Thus, s2(2) of the 1972 Act provides that a designated minister may introduce regulations (in the British sense) “for the purpose of implementing any Community obligation”.17 However, fresh obligations under EU law continue to be implemented by both primary and secondary legislation. Examples of the usage of Acts of Parliament to implement EU obligations would include

 16

Not that intuition has greatly assisted the prediction of events in the Brexit saga thus far. 17 This is subject to Schedule 2 of the Act, which provides that regulations may not be used for four specific purposes enumerated therein.

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the Employment Protection Act 197518 and the Equality Act 2006.19 This considerably complicates matters. Although it was Heath’s Conservative Government which passed the 1972 Act, it was in fact the previous Labour Government which, in a White Paper of 1967, had originally had the idea of using the analogy of delegated legislation as a way of downplaying the (future) EEC instruments.20 The Paper said that Community Regulations like ordinary delegated legislation, would derive their force under the law of the United Kingdom from the original enactment passed by Parliament.21

However, this analogy with “ordinary delegated legislation” was, as Bradley and Ewing drily comment in a footnote, “badly misconceived”: Delegated legislation… does not give rise to an autonomous body of law claiming supremacy over the source of its legal authority in domestic law.22

Those proffering the depotentiation argument would seem to be the heirs of those that drafted the 1967 White Paper in their confidence that UK implementation measures would entirely depend, for their “force”, on the “original enactment” (the 1972 Act) and so would die if it died. The waters are muddied, firstly, by the wide variety of methods–including primary legislation–by which the UK has chosen to transpose Directives over the years, and secondly, by pronouncements of the Court of Justice which appear to challenge the conventional wisdom that EU Directives do not constitute an independent source of power.23 This is important because, even under the depotentiation argument, a legislative instrument cannot be regarded as impliedly repealed upon the removal of one of the

 18

Implementing Council Directive 75/129/EEC of 17 February 1975 on the approximation of the laws of the Member States relating to collective redundancies [1975] OJ L 48/29. 19 Implementing, inter alia, Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L 303/16. 20 Legal and Constitutional Implications of United Kingdom Membership of the European Communities (Cmnd 3301, 1967). 21 ibid [22]. 22 AW Bradley, KD Ewing and CJS Knight, Constitutional and administrative law (16th edn, Pearson 2015) 129. 23 S Prechal, Directives in EC Law (2nd edn Oxford University Press 2005), 63 (for the conventional wisdom) and following (for the challenge thereto).

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powers under which it was made, where a second such power remains extant.24 Space forbids a full exploration of the ramifications of this hypothesis but suffice it for now to say that if Directives do indeed contain some directly applicable elements, and the doctrine of direct effect, long accepted by all UK courts, would strongly suggest that they do, then it is only the repeal of s2(1) of the ECA 1972, not s2(2), which will truly do away with them altogether. So where does the divorce argument come from? A strong source for the argument may be found in s16(1) of the Interpretation Act 1978, entitled “General savings”, itself a reproduction of s38(2) of the Interpretation Act 1889. S16(1) reads: (1) Without prejudice to section 15, where an Act repeals an enactment, the repeal does not, unless the contrary intention appears,— (a) revive anything not in force or existing at the time at which the repeal takes effect; (b) affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment; (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment; (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against that enactment; (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed.

Johnson comments that by this provision and its predecessor, Parliament ‘modified’ the common law repeal rule from cases like Kay v Goodwin, discussed above.25 Finnis goes further and states that the 1889 provision ‘abrogated’ the common law principle, and that the 1978 version ‘replace[d] the common law principle even more completely’,26 although

 24 Returning to the quote from the South African case of R v Madine above, it continues, ‘[…] except perhaps in so far as some other law may have conferred other privileges upon the holders of [the relevant] certificates’: R v Madine (n 15) 31. 25 Johnson (n 7) 262. 26 J Finnis, ‘Revolutions and continuity of law’ in J Finnis, Philosophy of Law: Collected Essays Volume IV (Oxford University Press 2011) 407, 423. Joseph Raz

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he notes that the Watson v Winch doctrine, with regard to by-laws, remained unaffected.27 Whichever is the more accurate description, the courts acted quickly to limit the modification, or abrogation, so that all future repeals were not rendered nugatory. In the 1895 Privy Council case of Abbott v Minister for Lands, for example, we learn that the mere right (assuming it to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, cannot properly be deemed a “right accrued” within the meaning of s38(2)(c) of the Interpretation Act 1889 (and now s16(1)(c) of the 1978 Act).28 Some extra event, whether it be an action on the part of the potential possessor of the right, or on the part of someone else, must take place. An example of this caveat being satisfied can be seen in the later 1922 case of Hamilton Gell v White, where the tenant of an agricultural holding, on receiving notice to quit from his landlord who wished to sell the property, claimed compensation under the Agricultural Holdings Act 1914, which designated such notice as an unreasonable disturbance within s11 of the Agricultural Holdings Act 1908, and which entitled a tenant so notified to compensation subject to the conditions of that section.29 The tenant complied with the first of those conditions, namely to give the landlord notice of his intention to claim compensation within two months of receipt of the notice to quit, but before he could comply with the second (to make his claim within three months of quitting the holding), s11 of the 1908 Act was repealed. The landlord argued that, at the time of the repeal, the tenant had not “acquired” a right to compensation within the meaning of s38(2)(c) of the Interpretation Act 1889 because he had only satisfied one of the two conditions necessary for acquisition of that right under s11 of the 1908 Act. The Court, however, while accepting the ruling in Abbott, distinguished this case because, as Lord Scrutton explained, what gave the tenant the right was the fact of the landlord having given notice to quit in view of a sale. He went on, The conditions imposed by s11 were conditions, not of the acquisition of the right, but of its enforcement.30

 is an another proponent of the divorce thesis from the world of legal philosophy, stating ‘by repealing a law conferring legislative powers the laws which have already been created on its basis are unaffected’: J Raz, The concept of a legal system (2nd edn, Oxford University Press 1980) 117. 27 ibid. Watson (n 13). 28 Abbott v Minister for Lands [1895] AC 425, PC. 29 Hamilton Gell v White (1922) 2 KB 422, CA. 30 ibid 430 (Scrutton LJ).

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Lord Atkin, with his customary eloquence, noted the danger of overinterpreting s38(2)(c) of the Interpretation Act 1889, namely, that if all abstract rights conferred by the repealed Act were preserved, the repealing Act would be altogether inoperative.31

Rather, the judge continued, the subsection in question should only apply where a specific right has been given to an individual upon the happening of a certain specified event, and, in Mr White’s case, the necessary event had happened. One detects a slightly more lenient approach to the provision in postApartheid South Africa, though. Thus in the 2000 case of Vryheid Transitional Local Authority v Biyela, the Labour Appeal Court of South Africa considered the fate of some staff regulations which had been made under the Black Local Authorities Act of 1982, the which Act having subsequently been repealed by section 13 of the Local Government Transition Act No 209 of 1993, with effect from 2 February 1994.32 The court first held that the staff regulations made under the 1982 Act had “lost their statutory force” as a result of the 1993 Act “absent any statutory provisions that ensured their preservation”.33 However, citing s12(2)(c) of the Interpretation Act, No 33 of 1957, which is in almost identical terms to s16(1)(c) of the UK’s Interpretation Act of 1978, the court went on to find that the regulations “continued to remain an integral part of the contractual relationship between the [employer] and the respondent”, and proceeded to decide the case with full reference to them. It is hard to see what further act was performed by the employee, Mr Biyela, or by anyone else, to allow the savings clause to bite in this case. In EU Law, where legislation is often drafted in a much looser and more flexible style than is UK (common law) legislation, there may be a danger that the event triggering the acquisition of a right will not have been delineated precisely enough in the nullified secondary legislation to avoid the position where the benefit of the savings clause is effectively conferred on the entire populace. While not reversing the depotentiation

 31

ibid 431 (Atkin LJ). Craies makes a similar point, namely, that were subsubsection (c) to be taken as applying to ‘a mere right to take advantage of a repealed enactment’, then this would ‘deprive the notion of a repeal of much of its obvious significance’: D Greenberg (ed), Craies on Legislation (10th edn, Sweet & Maxwell 2012) §14.4.2. 32 Case no DA2/2000 Vryheid Transitional Local Authority (appellant) v Sibusiso Vincent Biyela (respondent) [2002] ZALAC 5 (28 March 2002). 33 ibid [6].

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effect brought about by the Great Repeal Bill’s repeal of the ECA 1972, this would nevertheless leave the courts with a large backlog of “legacy” cases, post-Exit Day.

Part IV: Prime Minister May’s Birmingham Speech– The Gathering Swallows On 2 October 2016, as summer gave way to autumn, Theresa May made her first speech to the Conservative Party conference as leader, in the UK’s second city of Birmingham, and took the opportunity to provide the first clues as to what the country’s migration from the EU’s legal system was going to entail: [W]e will soon put before Parliament a Great Repeal Bill, which will remove from the statute book – once and for all – the European Communities Act… As we repeal the European Communities Act, we will convert the 'acquis' – that is, the body of existing EU law – into British law. When the Great Repeal Bill is given Royal Assent, Parliament will be free – subject to international agreements and treaties with other countries and the EU on matters such as trade – to amend, repeal and improve any law it chooses.34

After Exit Day, in other words, the British, having “entrenched” the whole of the acquis communautaire in national law, would be at liberty to choose which pieces of EU Law to keep and which to discard.35 This considerably shifted the direction of the argument as the EU laws currently on the UK statute book were apparently to be joined there by all of the EU laws which currently were not! The announcement provoked some consternation, with, for example, George Peretz QC commenting, There is a serious risk that swathes of legislation, drafted in a hurry by overworked civil servants with inadequate knowledge of the areas

 34

T May, ‘Brexit speech’ (delivered in Birmingham, 2 October 2016) in --, ‘Read Thersea May's full Brexit speech to Conservative conference in Birmingham’ International Business Times (New York, 2 October 2016) accessed 22 January 2017. 35 ‘I think the Great Repeal Bill should be renamed the Great Entrenchment Bill.’ See Ed Miliband, ‘Ed Miliband: Any Brexit deal must command support of MPs’ Yorkshire Post (Leeds, 14 October 2016).

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concerned, will be waived through without parliament having the means or capacity to scrutinise effectively what is being proposed.36

Mrs May’s speech does not help us with the question in the title of this piece, as it is UK law, albeit EU-inspired, which is at issue here. What does seem clear, though, is that, if Mrs May did feel that she needed explicitly to preserve the national rules giving effect to EU Law in the UK, the moment of repealing the ECA, and at the same time enacting the acquis, would seem to be a good moment to do it. Indeed, and entertaining the depotentiation thesis for a moment, it would seem borderline perverse for an Act part of the purpose of which was to convert the body of existing EU law into British law at the very same time to expel existing “conversions” from British law.

Part V: Prime Minister May’s Lancaster House Speech and the White Paper–The Mourning Gnats There was something gloomy, even fateful, about winter 2016. In the UK the talk was of falling off cliff edges, in the US even funerals.37 Mrs May’s speech at Lancaster House in London on 17 January 2017, largely repeated and only slightly enhanced in the Government’s White Paper the following month, nevertheless tried to sound confident and optimistic, even if both speech and White Paper were highly contingent on unknown future events. In her speech, which set out the Prime Minister’s twelve guiding principles for the UK’s withdrawal from the EU, Mrs May again offered a short description of the Great Repeal Bill. Although still apparently only dealing with incoming EU laws, rather than existent implementing measures, she nevertheless added one comment of possible interest to the present paper, and this concerned the positive contribution which she believed the Bill would make to legal continuity post-Brexit: [A]s we repeal the European Communities Act, we will convert the “acquis” – the body of existing EU law – into British law. This will give

 36

George Peretz QC, ‘Theresa May’s Great Repeal Bill must not lead to rushed and incoherent legislation’ (Civil Service World, 5 October 2016). 37 Matthew Chayes, ‘Rally for Obamacare, mock funeral for presidency in NYC’ (Newsday, 18.2.17) < http://www.newsday.com/news/new-york/trump-foes-holdmock-funeral-for-presidency-in-manhattan-1.13144673> (accessed 30 May 2017); --, ‘Anti-Trump protesters hold mock funeral for the US presidency’ (Global News, 18.2.17) < http://globalnews.ca/news/3259058/anti-trump-protesters-holdmock-funeral-for-the-us-presidency/> (accessed 30 May 2017).

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The point was prominently repeated in Mrs May’s Foreword to the White Paper.39 However, it is submitted that continuity on its own is not enough. The real problem is not so much the EU laws continuing to exist, but the EU laws continuing to function, as will be seen in the next section.

Part VI: Victims’ Rights as a Case-study Certain victims’ rights have been protected for some time in the UK. In terms of the right to compensation, for example, there has been a Criminal Injuries Compensation Scheme since 1964, set up to provide financial support by the state for the victims of violent crime who suffer personal injuries as a result. The Scheme was initially run by the lawyers of the Criminal Injuries Compensation Board, and latterly by civil servants (“claims officers”) within the Criminal Injuries Compensation Authority (“CICA”), who award compensation pursuant to a statutory tariff.40 The UK then agreed to enhance the powers of CICA so that it would also coordinate compensation payments to UK citizens who fell victim to crime elsewhere in the EU.41 Even more recently, the scheme was expanded to include victims of overseas terrorism in the Crime and Security Act 2010.42 The European Union’s Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime43 was

 38 T May, ‘Theresa May's Brexit speech in full’ (17 January 2017)

accessed 26 June 2017. 39 Department for Exiting the European Union, Legislating for the United Kingdom’s withdrawal from the European Union (Cm 9446, 2017) 5. 40 This change was brought about by the Criminal Injuries Compensation Act 1995. The current tariff, along with all other aspects of CICA’s work and procedure, is set out in a statutory instrument adopted pursuant to s11(1) of the 1995 Act, the Criminal Injuries Compensation Scheme 2012. 41 Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims [2004] OJ L261/15, implemented in the UK by the Victims of Violent Intentional Crime (Arrangements for Compensation) (European Communities) Regulations 2005, Regs 2005/3396. 42 First presented in Parliament on 18 January 2010 Official Report, House of Commons, col. 25-26. See now the Victims of Overseas Terrorism Compensation Scheme 2012, which was adopted pursuant to s54(1) of the 2010 Act. 43 Directive 2012/29 (n 4).

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officially adopted on 25 October 2012. The Directive represented a revision of a Council Framework Decision, dating back to 2001, on the “standing of victims in criminal proceedings”44. Even from the titles, one can see that the new Directive was intended considerably to extend the scope of the earlier Framework Decision, so as to provide across-the-board safeguards for the victims of crime, whether legal proceedings ensue or not. To this end, the Directive guarantees victims a large range of rights covering almost every aspect of their dealing with the State, from the moment that they make a complaint right up until the conviction, if it transpires, of the culprit, and perhaps even beyond that. The UK had until 16 November 2015 to implement this Directive into UK law and organize appropriate training. As can be seen from the table produced by the author at Appendix A (Table 15-1), the implementation of the Victims’ Rights Directive into UK law is a most complex affair, constituting numerous pieces of national law, including statutes and statutory instruments of various different sorts, some predating the Directive but amended to give effect to its provisions. However, Mrs May may not be correct when she says that “[t]he same rules and laws will apply to [the victims of crime] after Brexit as they did before”. To test this, let us consider first what will happen to British travelers who fall victim to crime while in another Member State, and then what will happen to travelers from other Member States who fall victim to crime while in the UK. If we suppose that a UK citizen were to travel to France after Exit Day and fall prey to a crime, then there would seem to be no reason why they should not be allowed to partake of the rights specified in the Directive. If they were found to have specific protection needs, for example, then provision could be made for their evidence at any subsequent prosecution in France to be given by teleconference. This is guaranteed in Article 23(3) of the Directive, which states: The following measures shall be available for victims with specific protection needs identified in accordance with Article 22(1) during court proceedings: […] (b) measures to ensure that the victim may be heard in the courtroom without being present, in particular through the use of appropriate communication technology;

 44

2001/220/JHA: Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings [2001] OJ L82/1 (‘the Framework Decision’).

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This has been transposed in French law via a Law of 201545 and a Decree of 201646. Both the Law and the Decree make amendments to the Code of Criminal Procedure, so that the latter now contains the rights set out in the Directive.47 The recipient of the rights is simply described as “la victime”. It would appear then the French are prepared to bestow these rights on all those who fall victim to crime within their territory, not just those from other Member States of the EU, as provided for in the Directive. This is a good result for the British, as they will no longer be EU citizens. Turning to a French citizen who might become a victim of crime while travelling in the UK, they too would seem to be able to partake of the right mentioned, implemented in the UK by Chapter 1, s1.13 of the Code of Practice for Victims of Crime. Again this makes no mention about the nationality of the victim with regard to this particular right. However, there are some nationality-specific victims’ rights, such as the right to compensation which, as mentioned above, was provided for by the Directive of 2004. On the face of it, one might think that the French traveler in the UK would receive compensation,48 as according to Mrs May the same rules apply after Brexit as before, while the British traveler in France would not, as the compensation would be limited to Member State nationals, and the UK is no longer a Member State. This phenomenon might be called unilateral disentitlement, and it could mean a disparity of rights, and expenditure, as between the UK and the remaining Member States, with the remaining Member States very much the winners. In reality, though, it seems that neither traveler would have an easy time of it. Although Mrs May has been criticized for not displaying one-sided largesse towards EU nationals already settled in the UK,49 paradoxically, in designing the Great Repeal Bill, she has shown a degree of one-sided

 45

Article 7 de LOI no 2015-993 du 17 août 2015 portant adaptation de la procédure pénale au droit de l’Union européenne, JORF n°0189 du 18 août 2015 page 14331 texte n° 2. 46 Décret n° 2016-214 du 26 février 2016 relatif aux droits des victims, JORF n°0050 du 28 février 2016 texte n° 14. 47 Code de procédure pénale, Version consolidée au 6 novembre 2016, for example at First Title of the Legislative Part, Subtitle III, Articles 10-2 to 10-5. 48 Victims of Violent Intentional Crime (Arrangements for Compensation) (European Communities) Regulations 2005. 49 F Nelson, ‘Why wait for Merkel? Theresa May should guarantee the status of EU nationals now’ (The Spectator Blog, 29 November 2016) < https://blogs.spectator.co.uk/2016/11/wait-merkel-theresa-may-guarantee-statuseu-citizens-now/#> accessed 30 June 2017.

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largesse which after Exit Day will reserve EU rights for EU citizens here, but which is powerless to ensure that the very same EU rights on the statute books of the remaining Member States will be reserved for Britons there. On the contrary, Britons there will henceforth find themselves disqualified from those rights by dint of being, from the EU Law point of view, third country nationals. Purves nicely describes the unilateral disentitlement point in the context of firms providing financial or payment services: The preservation of EU-derived law implies that incoming EEA firms will have, on day one after Brexit, precisely the same rights to do business in the UK as they did before. (…) [A]bsent agreement with the EU, UK firms will have no equivalent right to do business in the EU on the day after Brexit.50

However, the unusual nature of victims’ rights means that they will not fit into this asymmetric model quite so easily. Rather, they seem drawn towards symmetry. Unfortunately, though, it is not always a happy symmetry. On the one hand, for the video link evidence example, the universalising of the right to all victims, of any nationality, in most Member States meant that transfer from second country to third country status made no difference to future British entitlement to these rights. On the other hand, though, financial compensation for victims of crime, now hampered by a complicated two-stage process involving both the home State (as “assistant”) and the host State (as “decider”), would be unlikely to be available for EU citizens who fall victims to crime here (negative decision by home State qua “assistant”) or for UK citizens who fall victims to crime there (negative decision by host State qua “decider”). Choosing victims’ rights as the case study has illustrated, then, that the fate of EU rights on the UK statute book is not a black and white issue, as those proposing depotentiation seem to be suggesting, but rather a fluid one, hostage to the vagaries of legislative choice at national level, and the overcomplexities of two-step mutual assistance regimes at EU level (which require home State mediation) as compared to more familiar onestep mutual recognition regimes (which do not).

 50

R Purves, ‘Brexit takes shape: the UK government’s White Paper on “The Great Repeal Bill”’ (2017) 5 Journal of International Banking and Financial Law 263, 264.

288

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Part VII: Global Conclusion: The Songs of Spring This paper has attempted to address the question, “What will become of EU laws on the UK statute book after Brexit?” It began by tackling the two chief arguments, namely firstly, that those transposed EU laws would become defunct when the Act “responsible” for their transposition, the ECA 1972, was repealed (depotentiation), or secondly, that they would simply continue to exist at national level in their own right (divorce). The heralding by the Prime Minister of a new piece of legislation, eventually to be called the Great Repeal Act, in October 2016 (and with follow-up in January and February of 2017), while confirming the demise of the ECA 1972 and announcing the conversion of non-transposed EU laws into domestic law after Exit Day, did not help answer the question. During the case-study we saw just how complex the transposition of an EU Directive can be, often involving tiny amendments to existing national legislation. While on its own this cannot negate the depotentiation thesis, it certainly shows how complicated this result would be, as it would be hard for a reader of the national law in question to know which parts of said law were added pursuant to an EU obligation and were therefore null and void, and which parts were still good law. It was also shown that Brexit would have real-world impact on the functionality of an EU-derived law. Even if a piece of EU-derived law stayed on the UK statute book following withdrawal from the Union via the divorce process, there was no guarantee that its sense or logic stayed along with it; the two-dimensional words might remain but the three-dimensional context in which they would be read had drastically changed. As the paper, originally delivered at a conference in Brighton in November 2016, is finalised for publication in May 2017, it is to be noted that matters relating to Brexit finally seem to be gathering pace. The Article 50 process was triggered at the end of March 2017, and a short while later details of the Great Repeal Bill were finally made public in a White Paper entitled, Legislating for the United Kingdom’s withdrawal from the European Union. The White Paper points out that, as predicted in Part IV above, the Great Repeal Bill will provide for the petrification of existing EU laws on the UK statute book. If this provision survives into the final Act, then on the face of it this would obviate the need to worry about a depotentiation outcome as the express words will “save” any endangered secondary legislation passed under the repealed ECA, and it would render purely academic speculation as to whether salvation was or might have been possible absent such words.

What will become of EU Laws on the UK Statute Book after Brexit?

289

However, the principal point which this paper has tried to make is that the true fate of a law is not its continued appearance on the page, but its continued relevance to people’s lives. This is where the depotentiation argument, this overnight vanishing of all existent traces of the UK’s involvement in the European project from the law books, seems a wishful oversimplification. The laws which British people have made pursuant to their own sovereignty, and those produced via shared sovereignty with their European neighbours and interpreted by European judges, are mixed up to too great an extent simply to split back into their constituent parts by Parliamentary fiat. Law leaves a legacy wherever it goes. It alters the DNA of a place. Therefore, the true answer to the question “What will become of EU Law on the UK statute book after Brexit?” is: only time will tell.

290

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Appendix A Table 15-1: Table showing implementation of Directive 2012/29 (the Victims’ Rights Directive) in the UK Article of Directive 2012/29 Article 3 (The right to understand and to be understood)

Article 4 (The right to receive basic logistical information)

UK implementation x The Revised Code of Practice for Victims of Crime51: Introduction, s16 x Armed Forces (Service Courts Rules) (Amendment) Rules 201552 x Court Martial Appeal Court (Amendment) Rules 201553 x The Revised Code of Practice for Victims of Crime: o Generally: Chapter 2, ss1.1-1.11 o With regard to support, complaint and protection: Introduction, s16-18 o With regard to information re legal advice: Information for victims of crime leaflet, distributed by each police force pursuant to an obligation in Introduction, s18 o With regard to the right to receive information about restorative justice: Chapter 2, ss7.7-7.10 o Concomitant duties on service providers such as the police: Chapter 2B, s1 and Chapter 5, ss1.24-1.26 and 1.35-1.37 x The Armed Forces Code of Practice for Victims of Crime54 x With regard to compensation for overseas terrorism: Crime and Security Act 2010 ss47-54

 51

Brought into operation by the Domestic Violence, Crime and Victims Act 2004 (Victims' Code of Practice) Order 2013 SI 2013/2907. 52 SI 2015/1812. 53 SI 2015/1814.

What will become of EU Laws on the UK Statute Book after Brexit?

Article 6 (The right (if the victim wishes) to be informed of any decision not to proceed with or to end an investigation or not to prosecute the suspect) Article 6(5)-(6) (The right (if they wish) to be informed, without unnecessary delay, when the person remanded in custody, prosecuted or sentenced for criminal offences concerning them is released from or has escaped detention, and any protection measures arising from this) Article 11(1) (In the event of a decision not to prosecute a given individual, as mentioned in the first sub-bullet above, the right to have this reviewed)

Article 12 (The right to safeguards in the context of restorative justice services) Article 7 (The right to translation of information)

291

x The Revised Code of Practice for Victims of Crime o With regard to release of the offender: Chapter 2, s6(iii) o With regard to escape of the offender: Chapter 2, s6(iv) x The Armed Forces Code of Practice for Victims of Crime

x The Revised Code of Practice for Victims of Crime: o Generally: Chapter 2A, ss1.1 and 2.1, 2.2 and 2.9 o With regard to children and young people: Chapter 3, s2.2 o Concomitant duties on service providers such as the CPS: Chapter 2B, ss2.2-2.3 and Chapter 5, s1.41 x The Revised Code of Practice for Victims of Crime, Chapter 2, s7.5 x The Revised Code of Practice for Victims of Crime, Introduction, s34, 35 and 36 x The Armed Forces Code of Practice for Victims of Crime x Court Martial Appeal Court (Amendment) Rules 2015 x Armed Forces (Service Courts Rules) (Amendment) Rules 2015



54 Brought into operation by the Criminal Justice (Armed Forces Code of Practice for Victims of Crime) Regulations 2015 SI 2015/1811.

292

Article 7 (The right to interpretation)

Articles 8 and 9 (The right to access victim support services)

Article 5(1) (The right to have their complaint acknowledged)

Article 10 (The right to be heard, and supply evidence, at any subsequent criminal proceedings)

Article 14 (The right to reimbursement of expenses)

Article 15 (The right to the return of property)

Chapter Fifteen

x The Revised Code of Practice for Victims of Crime, Introduction, s33, 35 and 36 x The Armed Forces Code of Practice for Victims of Crime x Court Martial Appeal Court (Amendment) Rules 2015 x Armed Forces (Service Courts Rules) (Amendment) Rules 2015 x The Revised Code of Practice for Victims of Crime: o Generally: Introduction, s22 o With regard to psychological support: Chapter 3B, s1.2 and Chapter 5, s1.24 x The Armed Forces Code of Practice for Victims of Crime x The Revised Code of Practice for Victims of Crime: Chapter 2, s1.1 and Chapter 5, s1.27 x The Armed Forces Code of Practice for Victims of Crime x The Revised Code of Practice for Victims of Crime and the Armed Forces Code of Practice for Victims of Crime x Armed Forces (Service Courts Rules) (Amendment) Rules 2015 x The Revised Code of Practice for Victims of Crime o With regard to Adults: Chapter 2A, s3.6 o With regard to children and young people: Chapter 3B, s4.1 x The Armed Forces Code of Practice for Victims of Crime x The Revised Code of Practice for Victims of Crime x The Armed Forces Code of Practice for Victims of Crime

What will become of EU Laws on the UK Statute Book after Brexit?

Article 16 (The right to a decision on compensation from the offender in the course of criminal proceedings)

Article 19 (The right to avoidance of contact between victim and offender) Article 18 (The right to protection of the dignity of victims during questioning in criminal investigations, and when testifying)

Article 21 (The right to protection of privacy)

x The Revised Code of Practice for Victims of Crime o Generally: Introduction, s18, Chapter 3, s8.7 o With regard to children: Chapter 3B, s7.1 and 8.1 x The Armed Forces Code of Practice for Victims of Crime x The Revised Code of Practice for Victims of Crime: Chapter 1, s11.3 and Chapter 2, s3.1 x The Armed Forces Code of Practice for Victims of Crime x The Revised Code of Practice for Victims of Crime: Chapter 2, s5.4 x The Armed Forces Code of Practice for Victims of Crime x Youth Justice and Criminal Evidence Act 1999 x Youth Justice and Criminal Evidence Act 1999 (Application to Service Courts) Order 200955 x Youth Justice and Criminal Evidence Act 1999 (Application to Service Courts) (Amendment) (No 2) Order 201556 x Summary Appeal Court (Youth Justice and Criminal Evidence Act 1999) Rules 201557 x The Revised Code of Practice for Victims of Crime and the Armed Forces Code of Practice for Victims of Crime x Youth Justice and Criminal Evidence Act 1999 x Youth Justice and Criminal Evidence Act 1999 (Application to Service

 55

SI 2009/ 2083. SI 2015/1805. 57 SI 2015/1813. 56

293

294

Article 22 (The “individual assessment” to ascertain whether a victim has specific protection needs)

Article 23(2)(a)-(d) (The special measures to which victims having specific protection needs may be entitled during criminal investigations)

Chapter Fifteen

Courts) Order 2009 x Youth Justice and Criminal Evidence Act 1999 (Application to Service Courts) (Amendment) (No 2) Order 2015 x Summary Appeal Court (Youth Justice and Criminal Evidence Act 1999) Rules 2015 x The Revised Code of Practice for Victims of Crime o Generally: Chapter 2, s2.14 o With regard to children: Chapter 3B, s2.2 x The Armed Forces Code of Practice for Victims of Crime x With regard to vulnerable victims, the individual assessment is made via: Youth Justice & Criminal Evidence Act 1999, ss16-17 x The Revised Code of Practice for Victims of Crime: Chapter 2, ss1.6, 1.10, 1.16, 2.4, 2.10 and 2.15 x The Armed Forces Code of Practice for Victims of Crime x Youth Justice and Criminal Evidence Act 1999 x Youth Justice and Criminal Evidence Act 1999 (Application to Service Courts) Order 2009 x Youth Justice and Criminal Evidence Act 1999 (Application to Service Courts) (Amendment) (No 2) Order 2015 x Armed Forces (Service Courts Rules) (Amendment) Rules 2015 x With regard to the need for vulnerable victims (specifically victims of sexual violence, gender-based violence or violence in close relationships) to have priority access to accommodation

What will become of EU Laws on the UK Statute Book after Brexit?

Article 23(3)(a)-(d) (The special measures to which victims having specific protection needs may be entitled during court proceedings)

x x x x x

x Article 24 (Further safeguards for child victims – the use of pre-recorded interviews as evidence in court)

x x x x x

x

295

(quaere whether this is in fact one of the needs set out in the Directive for victims with special protection needs?): Homelessness (Priority Need for Accommodation) (England) Order 2002 esp Art 6. The Revised Code of Practice for Victims of Crime: Chapter 1, ss1.131.15 and Chapter 2, 1.8 The Armed Forces Code of Practice for Victims of Crime Youth Justice and Criminal Evidence Act 1999 Youth Justice and Criminal Evidence Act 1999 (Application to Service Courts) Order 2009 Youth Justice and Criminal Evidence Act 1999 (Application to Service Courts) (Amendment) (No 2) Order 2015 Armed Forces (Service Courts Rules) (Amendment) Rules 2015 The Revised Code of Practice for Victims of Crime: Chapter 3A, ss1.3 and 1.4 and Chapter 3B, s1.2 and 1.4 The Armed Forces Code of Practice for Victims of Crime Youth Justice and Criminal Evidence Act 1999, s.21 Youth Justice and Criminal Evidence Act 1999 (Application to Service Courts) Order 2009 Youth Justice and Criminal Evidence Act 1999 (Application to Service Courts) (Amendment) (No 2) Order 2015 Armed Forces (Service Courts Rules) (Amendment) Rules 2015

296

Article 24(1)(b) (Further safeguards for child victims – the appointment of special representatives)

Chapter Fifteen

x The Revised Code of Practice for Victims of Crime: Introduction, s27 and Chapter 3, ss1.3 and 1.5 x The Armed Forces Code of Practice for Victims of Crime x Youth Justice and Criminal Evidence Act 1999 x Youth Justice and Criminal Evidence Act 1999 (Application to Service Courts) Order 2009 x Youth Justice and Criminal Evidence Act 1999 (Application to Service Courts) (Amendment) (No 2) Order 2015 x Armed Forces (Service Courts Rules) (Amendment) Rules 2015

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CONTRIBUTORS

David Barrett David Barrett undertook an undergraduate degree in law at the University of Leicester and a Masters in Legal Research at the University of Edinburgh. He received his PhD from the University of Bristol in 2016 under the supervision of Professors Tony Prosser and Tonia Novitz and examined by Professor Anne Davies (University of Oxford). He is now a lecturer in law at Nottingham Law School, Nottingham Trent University where he teaches EU, Public and Trusts law. He has four central research interests: issues of socio-economic inequality (particularly class from a Bourdieusian perspective), equality and human rights law (specifically socio-economic rights), regulation (particularly issues of enforcement), and the impact of law in schools and the education system. In terms of anti-radicalisation measures he published an article on the Prevent Duty in the European Human Rights Law Review (David Barrett, ‘Tackling radicalisation: the limitations of the anti-radicalisation Prevent duty’ (2016) 5 European Human Rights Law Review 530). In the future, he intends to undertake empirical research exploring how schools are implementing the anti-radicalisation measures discussed in his chapter in this book.

Charles Barrow Charles Barrow is a graduate of the University of Wales and the London School of Economics and Political Science and is a senior lecturer in law at the University of Brighton where he teaches in the areas of tort and employment law. He has taught at several United Kingdom universities and has been acting head of law at London Metropolitan University where he introduced an LLM on Labour Law and Human Rights. He has published 4 books on employment law, has experience as an advocate in employment tribunals and has a particular interest in collective labour law. His present research concerns the regulation of trade unions, industrial conflict and the European Convention on Human Rights. He has published a number of articles and presented several conference papers on this theme; his most recent publication was in the European Human Rights

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Law Review examining the European Court of Human Rights decision in RMT v United Kingdom.

Koldo Casla Koldo Casla is Policy, Research and Training Officer in Just Fair, an organisation that monitors and advocates economic and social rights in the UK. He passed his PhD viva at King’s College London in July 2017; his doctoral research dealt with Western European states’ promotion of international human rights norms. He holds a LLB, with concentration in International and European Law (University of the Basque Country, Spain), a MA in Theory and Practice of Human Rights (University of Essex, UK), and a Fulbright MA in International Studies (University of Denver, USA). He has more than eight years of experience in human rights research and policy analysis for the public and not-forprofit sectors. His most recent publications are ‘The rights we live in: protecting the right to housing in Spain’ (International Journal of Human Rights, 20:3, 2016) and ‘Dear fellow jurists, human rights are about politics, and that’s perfectly fine’ (chapter in edited volume, https://www.amnesty.nl/content/uploads/2015/10/can_human_rights_bring _social_justice.pdf). His email address is [email protected].

Michelle Coleman Michelle Coleman is a PhD Candidate and Hourly Lecturer of law and criminology at Middlesex University. She is currently writing her dissertation on the presumption of innocence. Michelle received her JD from Villanova University and practiced law as criminal defence lawyer in the United States for several years. She also received an LLM in Human Rights and Criminal Justice from Utrecht University and has worked in the Victims Participation and Reparations Section of the International Criminal Court. In addition to writing her thesis, Michelle is currently a Specialist Editor for the Utrecht Journal for International and European Law. Her main research interests are criminal law and procedure, international criminal law, human rights, and justice.

Fiona de Londras Fiona de Londras is the Professor of Global Legal Studies at the University of Birmingham, and holds adjunct positions at UCD and UNSW. She is an associate of the Munk School of Global Affairs

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(Toronto) and joint editor-in-chief of the Irish Yearbook of international Law. She publishes widely on human rights and comparative constitutional law.

Lieve Gies Lieve Gies is an Associate Professor in the School of Media, Communication and Sociology at the University of Leicester. Her current research interests include the representation of human rights law in the British and other European press and the use of social media in miscarriage of justice campaigns. She is author of Mediating Human Rights: Media, Culture and Human Rights Law (Routledge: 2014) and Law and the Media: The Future of an Uneasy Relationship (RoutledgeCavendish: 2014). She recently co-edited (with Maria Bortoluzzi) Transmedia Crime Stories: The Trial of Amanda Knox and Raffaele Sollecito in the Globalised Media Sphere (Palgrave Macmillan: 2016). In January 2017, she took up a Leverhulme Research Fellowship to research a project entitled ‘Coverage of human rights law in European newspapers: A comparative analysis’.

Alan Greene Originally from Ireland, Dr Alan Greene is an Assistant Professor in Law at Durham Law School where his research focuses on constitutional theory and human rights. He explores these topics in the context of counterterrorism, states of emergency, and the European Court of Human Rights. He holds BCL, LLM and PhD degrees from University College Dublin School of Law and has published in journals such as The Modern Law Review, Legal Studies, International and Comparative Law Quarterly, and The Irish Jurist.

Richard Lang Richard Lang has qualified as both a barrister (in 2000) and a solicitor (in 2005), and acquired his LLM in European Law from UCL in 2001. He practised European law for several years in Brussels before returning to the UK to write his PhD at Kings College London (awarded 2011). Until 2015, he was Principal Lecturer and LLB Undergraduate Portfolio Leader at the University of Bedfordshire. His current position is Senior Lecturer in Law at the University of Brighton. He has written on equality, the right to property and victims’ rights and in 2013-14 acted as External Expert for

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Contributors

the European Parliament’s Petitions Committee on fundamental rights. He is author of Complex equality and the Court of Justice of the European Union: A counterfactual analysis (Brill, forthcoming) as well as Series Editor for Legal Perspectives on Brexit (Routledge, forthcoming).

Darren McStravick Darren McStravick holds a LLB from Queens University Belfast and a LLM in Human Rights and Criminal Justice, also from Queens University Belfast. He holds a PhD in law from the School of Law and Government at Dublin City University. The author has worked as a legal researcher with the Northern Ireland Law Commission, working on consultation programmes and published reports. He was awarded the Daniel O' Hare Scholarship in 2010 from DCU and successfully defended his PhD in 2015 entitled 'The Irish Restorative Reparation Panel and the Search for Community: Idealised Rhetoric or Practical Reality?' He has worked in conjunction with the Association for Criminal Justice Research and Development in the submission of reports to the Irish Joint Committee on Justice, Defence and Equality on the topic of community policing and restorative justice. He lectures within the School of Law at DCU on a range of subjects, including Criminal Law, Evidence, Advanced Criminal Law, Business Law and Contract Law. He has attended and presented at conferences both in Ireland and internationally and has published on the subject of adult based restorative justice programmes in Ireland and on the theoretical nature of community.

Mary O’Connor Mary O’Connor LLB (Hons), LLM (Hons) is a PhD candidate at Queens University Belfast on a part-time basis. Her area of research is based on the rights of the Irish cross-border surrogate child which has involved research of surrogacy provisions in Ireland, the UK and other jurisdictions. Her first visit to Queens was when she presented at the Master Class of 2011 Conference. Since then she has presented papers at the CCJHR Conference UCC, 2013, the ‘Envisioning the Law’ Conference at the University of Strathclyde, 2016 and the ‘The Future of Human Rights in the UK’ Conference in the University of Brighton 2016. She has also been invited to present in the PhD Forum and PhD Symposium at the World Conference on Family Law and Children’s Rights 2017 which is being held in Dublin. In 2015 she was invited to write an article ‘Ireland and international surrogacy’ which was published in Family Law News,

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the Newsletter of the International Bar Association Legal Practice Division, Special Edition on International Surrogacy, ahead of the IBA Annual Conference Vienna, October 2015.

Rachel Pougnet Rachel Pougnet is a PhD Candidate at the University of Bristol and began her doctoral research in 2015. Her research is funded by the ESCR (+3, socio legal studies) and the British Council (Entente Cordiale scholarship). She holds a Degree in Law (LLB) from the University of Bordeaux, a Master of Law (LLM) in General International Law from the University of the Sorbonne (University of Paris 1 PantheonSorbonne), and an MPhil in International Public Law and International Organisations also from the University of the Sorbonne. Away from her university studies she has volunteered for the Human Rights League of Paris and has worked for the French Court of Asylum seekers as an intern. She is now teaching Constitutional rights at the University of Bristol (first years), works with the Human rights implementation center of the University and comments on ECHR cases for the European Journal of Human rights.

Hannah Quirk Hannah Quirk is Senior Lecturer in Criminal Law and Justice at the University of Manchester. Her research interests are in miscarriages of justice and sentencing. She is author of The Rise and Fall of the Right of Silence (Routledge, 2016) and co-editor of Regulation and Criminal Justice: Innovations in Policy and Research (CUP, 2010 with T. Seddon and G. Smith) and Criminalising Contagion: Legal and Ethical Challenges of Disease Transmission and the Criminal Law (CUP, 2016 with C. Stanton). Before becoming an academic, she worked for the Legal Services Research Centre investigating legal aid provision for criminal cases and the Criminal Cases Review Commission investigating miscarriages of justice. She has been a Council of Europe Expert, delivering training on human rights for judge candidates in Azerbaijan. She is currently a director of South Manchester Credit Union and sits on the Executive Board of Justice. She is co-convenor of the Criminal Justice section of the Society of Legal Scholars and a member of the AHRC’s Peer Review College. Hannah appears regularly on television and radio programmes discussing current criminal justice issues. She is an occasional panellist on The Big Questions (BBC 1) and the Weekend show

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Contributors

(BBC World Service). She is a contributor to The Justice Gap website and can be followed on Twitter @HannahQuirk1

Claire-Michelle Smyth Claire-Michelle Smyth holds and LLB(hons) in Irish Law, an LLM(hons) in International Human Rights Law and a PhD from Queens University Belfast. She has taught widely in the areas of International Law, Human Rights and Private law and is currently a Senior Lecturer in Law at the University of Brighton. She researches widely in the area of human rights, particularly social and economic rights and discusses her research regularly at national and international conferences. She is active in publishing her research, most recently Social and Economic Rights in Ireland (Clarus Press in 2017) and 'Social and Economic Rights in International Law; The struggle for equivalent protection' in Lora Windenthal and Jean Quateart (eds) The Routledge History of Human Rights (Routledge, forthcoming).

Jo Wilding Jo Wilding is a barrister at Garden Court Chambers and an academic researcher at the University of Brighton. Her research interests include legal aid, quality and financial viability in legal services, asylum and immigration law, and unaccompanied children seeking asylum. Her legal practice is similarly based in legal aid asylum, immigration, human rights and unlawful detention work. She is a contributor to Macdonald’s Immigration Law and Practice (8th and 9th Editions, Lexis Nexis). Other recent publications include Whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures – UK National Report (2015).

Niall Williams Niall Williams is undertaking postgraduate research exploring how the law could be used as a tool to encourage school attendance in England and Wales at Birkbeck, University of London where he is a Graduate Teaching Assistant and Guest Lecturer in Crime and the Law and Understanding Crime. He was awarded the Ronnie Warrington Graduate Teaching Assistant Award for MPhil/PhD Candidates in 2015 to undertake this research. He completed his LLM at Queens University, Canada where he received a Faculty of Law Graduate Student Award Scholarship. In

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Canada, he undertook research on the right to a fair trial and comparing approaches in Ireland and Canada focussing on language rights and the role of the media. He also holds a Graduate Certificate in Teaching and Support Learning in Higher Education (London) and a BCL (Dublin City University). He has volunteered for many human rights groups such as Amnesty International where he was Chairperson of the Dublin City University branch and Ceartas (Irish Lawyers for Human Rights). Niall also served as a caseworker for the Irish Innocence Project which is an organisation which provides assistance to victims of miscarriages of justice. His current research interests include the role of family within the criminal law, comparative criminal law, comparative family law, comparative constitutional law and minority and indigenous rights.