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A Postmodern Bill of Rights

One of the darker aspects of Brexit was the Tory Party’s thinly veiled ambitions to repeal the Human Rights Act. At the time, I asked to which of the rights enshrined in the European Convention of Human Rights people objected or felt did not really require protection. Whilst the undermining of human rights was one of many seemingly obvious outcomes dismissed as “Project Fear”, Dominic Raab’s appointment as Secretary for State for Justice last year was immediately concerning for those in the legal profession, with his outspoken opposition to the Human Rights Act, saying in 2009 that “The very enactment of the Human Rights Act has served as a trigger for the formulation of claims by lawyers and judicial reasoning by courts, using human rights arguments that would never have been dared before. The spread of rights has become contagious and, since the Human Rights Act, opened the door to vast new categories of claims, which can be judicially enforced against the government through the courts.”

Yes, the passing of the Human Rights Act has meant that citizens have dared to enforce their rights against the Government. That is ultimately what Raab wants to limit. We now have insight into exactly what the Government intends to achieve with its “Modern Bill of Rights” following the Consultation Response. I know these can be (often deliberately) dense documents to look at, so I want to highlight a few key points to make their intentions entirely transparent, as well as how they are ignoring the public response. This requires serious Parliamentary scrutiny, as the Government seeks to rework the most fundamental protections for us all.

The will of Parliament

Remove the courts’ power to interpret legislation in ways that are not in line with the ordinary meaning of the words and the overall purpose of the statute, which will ensure that laws will be interpreted in a manner that is consistent with the will of Parliament.

The sovereignty of Parliament was a popular Brexit catchphrase, used primarily by people who do not understand Parliamentary sovreignty. I agree with the view that the courts should not be making judgments that are incompatible with legislation passed by Parliament, but it was Parliament which enacted the Human Rights Act. Section 19 of the Act requires that all subsequent bills include a statement from the responsible Minister that it is compatible with Convention rights. This was a deliberate choice by Parliament, recognising that no legislation we pass in a civilised society should contravene human rights. Therefore the court is empowered by section 3 of the Act to interpret legislation in a compatible way and, since this was enacted by Parliament, it is by definition consistent with the will of Parliament.

The Government wants to remove this section 19 statement from new legislation because “This will encourage innovative and creative policy making which better achieves Government aims.” In other words, they expect their future legislation to contravene human rights and so they do not want to be bound by it or forced to identify their disregard for human rights when they choose to ignore it. Nor do they want the court to be able to set aside incompatible legislation. Repealing section 3 of the Human Rights Act met with overwhelming disapproval. 79% of respondents wanted no change to the courts’ ability to interpret legislation in accordance with the Humans Rights Act, and only a dismal 8% supported either of the Government’s proposed options. The Government took no notice.

The Government remains convinced that reform of section 3 is needed to provide a clearer separation of powers between the courts and Parliament. We therefore intend to repeal section 3.

Public authorities

Make clear that when public authorities are giving effect to the will of Parliament, they will not be acting unlawfully under the Bill of Rights. This will deliver greater certainty for public services to do the jobs entrusted to them, without the constant threat of having to defend against human rights claims.

This is perhaps the most insidious statement in the document. Public authorities will be immune from claims that they have violate human rights if they are “giving effect to the will of Parliament”. Who decides whether they are doing so? If the sitting Government orders the police to round up protesters, does that grant them free rein in how they act? Is it enough for the police simply to say in all circumstances that they are enforcing a criminal statute passed by Parliament and therefore cannot have acted unlawfully even if they violate your human rights? Frankly, the “constant threat” of human rights claims sounds like an excellent safeguard for public services, particularly those institutions like the police force which have proved themselves time and again incapable of ensuring proper treatment of minorities and the vulnerable.

The role of the European Court of Human Rights

The UK was instrumental in establishing the European Court of Human Rights, based in Strasbourg, following the creation of the Council of Europe in London. International law scholars consider it to be the most effective international human rights court in the world, so one might wonder why the British Government would so keen to abandon it.

The ambiguity of the instruction to ‘take into account’ Strasbourg case laws remains a source of uncertainty. In the consultation, we proposed correcting this by promoting a home-grown approach tailored to the UK’s traditions of liberty and rights.

56% of respondents preferred no change from the current framework, and a further 20% rejected the alternative options put forward in the consultation. Of course, many of the respondents knew exactly what was motivating the Government: “1,270 respondents also mentioned that the Strasbourg Court ensures that the UK Government is kept in check”. Once again, the Government’s response is simply to ignore these criticisms.

The Government wants to emphasise the importance of the development of rights under the common law. This would contribute to placing less emphasis on the role that decisions of the Strasbourg Court play in influencing UK courts.

Triviality

The Government believes that human rights provide fundamental individual guarantees in society, but that trust in that system is lost when trivial cases come before the courts.

What exactly is a “trivial” breach of your fundamental human rights? The Government wants to prevent people from even bringing a challenge if they cannot demonstrate they suffered a “significant disadvantage”. But when we are dealing with something so profoundly important as the basic protections that should be afforded to every human being, why is any threshold test appropriate? Surely you should simply not have violated their human rights to begin with. The Consultation demonstrated this overwhelmingly, with 90% of respondents saying the proposed “significant disadvantage” test was not appropriate. 25% of respondents went further and said there was no evidence that the system is being abused or that spurious claims are being brought.

The Government’s response?

The Government remains convinced that introducing a permission stage is necessary to ensure that trivial claims do not undermine public confidence in human rights more broadly but has amended the proposal based on further policy development and analysis.
…
This proposal will place responsibility on the claimant to demonstrate that they have suffered a significant disadvantage before a human rights claim can be heard in court.

In other words they have completely ignored the response to the Consultation and their “amended” proposal introduces the same “significant disadvantage” test that was rejected by 90% of respondents. It is entirely transparent that the Government wants to prevent claims from even being heard in Court, and is determined to force this through despite public opposition.

Deportations

The recent Rwanda debacle demonstrates the Government’s general contempt for the human rights of those it wishes to deport. Indeed, the only people for whom it seems to have more contempt are the “lefty lawyers” protecting those human rights. 82% of respondents rejected alternative options to make it easier for the Government to deport foreign nationals who committed offences in the UK and 67% said no change was required to the current framework for illegal and irregular migration.

In a pattern you will recognise by now, the Government intends to proceed regardless. This includes setting a high bar for foreign nationals to claim deportation infringes on their right to respect for private and family life, making it easier for the Government to separate families, and placing “limits on the court’s power when they are considering appeals against deportation made on Article 6 grounds (right to a fair trial)”. Meanwhile, they doubled down on the Nationality and Borders Act 2022, stating that they had “considered in detail the issues raised in this area” whilst carefully avoiding any mention of the failed attempt earlier this month to deport asylum seekers before their challenges could be heard.

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Creeping Authoritarianism: The Investigatory Powers Act

The most important thing about this post is that I rewrote it multiple times and considered not posting it at all, because I was concerned about how it might be perceived and whether its recommendations might have ramifications in the future. Once you read it, that thought alone should be terrifying.

With the Labour party in disarray and the population distracted by Brexit, the Investigatory Powers Act has now passed both houses. Media coverage has been inexplicably scant. The Act permits a wide range of snooping and hacking by the security services, allowing unprecedented surveillance of citizens for a democratic country. Theresa May pushed this legislation (dubbed the “Snoopers’ Charter”) as Home Secretary, so it is little surprise that she has forged ahead despite opposition from groups like Liberty and warnings from a number of commentators including Edward Snowden.

I hope that by now most people reading this will have rejected the idea that “if you have nothing to hide, you have nothing to fear”. It is worth revisiting Glen Greenwald’s powerful TED Talk on the subject. This is not paranoia about some perceived theoretical risk. The Snowden revelations demonstrated that the intelligence agencies will take advantage of any information gathering they can get away with, whilst both the Government and the police have demonstrated repeatedly that supposedly anti-terror laws will actually be used whenever convenient. This is why the lack of judicial oversight over access to browsing history should cause serious concern. Most importantly, even if you do trust the current Government, you still should be protecting your privacy. Once a more authoritarian regime takes power, it is too late to claw back what they already hold.

The danger is that authoritarianism occurs in a gradual shift that is easy to overlook as it takes incremental steps. Take, for example, the current Digital Economy Bill which seeks to censor videos that contain a swathe of consensual but non-conventional sex acts. It is entirely unclear why the Government should have any say in such things and it stigmatises private activities enjoyed by a minority. Those of us unaffected by this change should be fighting against it, because it suggests that in future such marginalisation of other minority groups is acceptable based on an arbitrary sense of what is “normal” or “decent”. Now couple this with a regime that also has access to your entire browsing history.

A second major issue with the Investigatory Powers Act is the requirement that companies remove user encryption whenever “practicable”. Many major tech companies have responded robustly about the security implications of creating backdoors in their software, which serve to weaken security for everyone against any malicious attackers. However, the arguments over what is or is not “practicable” for companies to implement will occur in private — without public scrutiny — because the warrants demanding data will invariably contain a gagging order.

Remember also that data leaks by Government bodies are commonplace. The Information Commissioner’s Office lists 54 enforcement actions in just the past two years. Allowing the collection of data also allows the risk of it being released more widely, particularly in light of the Digital Economy Bill’s proposals for data sharing between Government bodies without proper safeguards.

You can petition the Government to repeal the Investigatory Powers Act.

You can write to your MP to prevent the Digital Economy Bill being rushed through.

How do you protect yourself in the meantime? Everyone should be using a Virtual Private Network (or VPN). Here’s a friendly beginner’s guide, but broadly a VPN involves making an encrypted connection to a server which handles all of your online requests. That way no one else, like your Internet Service Provider or others on a public wifi hotspot, can track or eavesdrop on what you are doing. You are still trusting the VPN provider, but this gives much greater control than than trusting one of a few local ISPs, all of which will be subject to requirements imposed by the Investigatory Powers Act. The best way to ensure your privacy is to use a VPN that does not log your traffic so that, even if ordered to, it cannot provide your web history to anyone else. There are a number of different companies offering VPN services relatively cheaply. I recommend NordVPN, given the privacy features outlined above coupled with easy-to-use clients for Windows, OSX, iOS and Android, so little technical knowledge is required.

If you know that you will never, ever have anything to hide from anyone else at all, then you have nothing to fear. And a level of clairvoyance that I sincerely envy.

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Photographing London Demonstrations

Some quick advice to answer some questions I’ve been asked about photographing tomorrow’s G20 demonstrations in London (with the usual caveat that none of this should be construed as legal advice). Generally speaking, if you’re in a public place you can photograph whatever happens to be going on. Privacy doesn’t really apply since in a public demonstration neither the demonstrators nor the police have any reasonable expectation of privacy. Equally merely photographing a demonstration is unlikely to amount to a breach of the peace.

However some amendments to the Counter-Terrorism Act in February this year could affect photographers’ relationship with the police. With some very poor, wide drafting, typical of the current government, the new rules catch anyone eliciting information regarding members of the armed services, intelligence services or police which is “of a kind likely to be useful to a person committing or preparing an act of terrorism”. This potentially covers photographing police officers and we are just expected to trust that the statute will not be abused. An easy non-lawyer article summarises the change.

The G20 demonstrations clearly are not linked to terrorism so calmly explaining that should diffuse any attempt to stop you under the Counter-Terrorism laws. The chief issue is often misinformed police officers who genuinely misunderstand what photographers are allowed to do. In that respect I highly recommend everyone print and keep a copy of this UK photographers rights leaflet in their camera case to help them explain if questioned.

Common sense should prevail, particularly since the police are understandably likely to be tense: if you see problems likely to occur, don’t argue, take a step back and move elsewhere. If the police try to search you, complying is usually best, although they should not have any right to seize your equipment to my knowledge. Make it clear you are there as an observer rather than being confused as part of the demonstration to avoid breach of the peace accusations. Good luck!

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Obsoletion is the Answer

It was galling to see the 42-day detention Bill pass a Commons vote despite significant opposition. I remain hopeful that the Lords will stall its progress and that it will fail any further attempts. Nevertheless the fact it could pass at all highlights that the worrying trend we have seen in poorly conceived “anti-terror” legislation is not stopping. Unless of course the government’s cunning plan is to make terrorists obsolete by doing their job for them.

Many bemused Americans are actually taking an opportunity to throw stones, apparently heedless of their glass house. 42 days is, after all, still better than 6+ years and counting. Admittedly that’s in a Cuban holiday resort or however it is they refer to Guantanamo these days. The truth is, of course, that this is simply another Act in the security theatre engulfing both our countries — not merely the erosion of civil liberties, but rather the erosion for high profile ideas that bear no ostensible benefits at all. If those additional days save a single life, I think everyone — including those who drafted the Bill — would be very, very surprised.

Firefox 3 has been dated for a June 17th release. I’ve been using the stable Release Candidates for a while now, and I can thoroughly recommend the new version. Improvements are less dramatic than earlier milestone releases but the focus here is under the hood like memory management, combined with a focus on smaller details. Drawing attention in the address bar to the identity information of the site you are browsing is a good example of a simple security measure that will greatly increase use. Meanwhile Firefox is also venturing into the mobile arena with a concept video of the user interface for a new mobile version of the browser, designed specifically for small touch screen devices. This is only a concept with a real product still some way off.

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