Friday, 15 September 2017

Privacy at work: the Strasbourg Grand Chamber clarifies the law





Lorna Woods, Professor of Internet Law, University of Essex

Background

The case of Bărbulescu concerned the extent to which employers could track employee communications, including Internet use, when those communications might include private correspondence rather than business communications. Here, an employer dismissed an employee for failing to respect a prohibition on the use by employees of work equipment for private reasons. The employee sued his employer in the Romanian courts but lost, so brought a claim under Article 8 ECHR, which protects the right to private and family life, home and correspondence. In particular, Bărbulescu objected to the fact that, to find that he had violated the policy, his employer monitored his communications. This he claimed was contrary to the jurisprudence of the European Court of Human Rights in Copland v UK.  The Fourth Section of the Strasbourg court held, at the beginning of 2016, that the legal situation in Romania did not give rise to a violation of Article 8. While the media tended to summarise the position as the court permitting entirely unrestricted monitoring, this was not entirely the position as noted by Steve Peers here. The matter was in any event referred to the Grand Chamber and it is with this judgment that this note is concerned. The Grand Chamber came, albeit not unanimously, to the opposite conclusion from the Fourth Section, finding that there had been a violation of Article 8 ECHR.  So, why has it come to this conclusion?

Judgment

The Grand Chamber first considered the applicability of Article 8 to the situation in issue.  Re-iterating a long list of previous cases, it emphasised that Article 8 should not be understood narrowly and includes both the right to develop relationships with others and professional activities or activities taking place in a public context. The Court noted two further separate points. First it commented that:

[r]estrictions on an individual’s professional life may fall within Article 8 where they have repercussions on the manner in which he or she constructs his or her social identity by developing relationships with others [para 71].

In this context work is important in providing the possibility for individuals to develop relationships with others. Secondly, while ‘life’ in the list of interests protected by Article 8 is qualified by the adjective ‘private’, the term ‘correspondence’ is not so limited [para 72]. The Court noted that while the test of a reasonable expectation of privacy has been used to determine the scope of Article 8, it here re-iterated that is a significant though not necessarily conclusive factor [para 73]. The Court concluded that while the employee was aware of the ban, he was not aware of the monitoring; that some of the content was intimate in nature; that he alone had the password to the account. The Court left open the question of whether Bărbulescu had a reasonable expectation of privacy in the light of the employer’s policy (of which Bărbulescu was aware), but then held that ‘an employer’s instructions cannot reduce private social life in the workplace to zero. Respect for private life and for the privacy of correspondence continues to exist …’ [para 80]. Both the right to private life and the right in relation to correspondence were therefore engaged.

The Court then considered whether there had been a violation. In this the Court was faced with the question of whether there was a positive obligation, given that the employer was not a public body. The Court noted that the monitoring of the communications could not be regarded as “interference” with Bărbulescu’s right by a State authority [para 109]. Nonetheless, the measure taken by the employer was accepted by the national courts, thus engaging the State’s positive obligations [paras 110-111]. It re-stated that the test was that of whether a fair balance had been struck between the competing interests. The Court noted that labour law has specific characteristics which allows for a wide margin of appreciation. This is not, however, unlimited; States must ensure that there are safeguards in respect of the monitoring of communications. It identified a number of issues:

-          Clear advance notification of the possibility of monitoring;
-          The extent of the monitoring and the degree of intrusion, taking into account the difference between monitoring ‘flow’ of communications and their content;
-          The justification for the monitoring;
-          Whether less intrusive mechanisms for monitoring exist;
-          The consequences for the employee;
-          Whether adequate safeguards were in place.

Further, there should be the possibility of a domestic remedy. The Grand Chamber took the view that the domestic courts did not consider or did not give appropriate weight to all the issues identified [para 140]. Notably, it did not appear the employer had given Bărbulescu sufficient advance notice of "the extent and nature of [its] monitoring activities, or of the possibility that [it] might have access to the actual content of his messages". The Court was also sceptical of the national courts acceptance of the justification for the intrusion. There was therefore a violation of Article 8.  There was dissent, however, on the assessment of the national courts’ approach to the matter.

Comment

The headline news from this is that the Grand Chamber came to a different determination on the issue of breach from the Fourth Section. It should be noted, however, that even that chamber did not suggest that unlimited monitoring would be permissible (see e.g. Steve Peers’ analysis). Nonetheless in purely practical terms, the Grand Chamber judgment provides a clear statement that workplace privacy cannot be reduced to zero, as well as a list of considerations that will be useful not just for national courts but also employers in considering policies regarding personal communications in the workplace. Note that this case concerned a private employer not – as in Halford and Copland – a public body as employer so the considerations highlighted will be of relevance to all employment relationships. In this, the Grand Chamber seemed to respond to some of the concerns expressed by Judge Pinto de Albuquerque in his dissent from the Fourth Section judgment regarding the factual specificity of the case. The judgment also seems to recognise the importance of work as part of daily life, an important point given the blurring of boundaries in the ‘always on’ culture of smart devices in which work-related information and communications co-habit with those of life outside work.

There are some further points to consider. The first is the scope of Article 8 and in particular the ‘reasonable expectation of privacy’.  Article 8 lists a number of aspects protected: ‘private and family life’ – usually seen as two separate elements ‘private life’ and ‘family life’ – ‘home’ and ‘correspondence’. As written, it seems that these are distinct elements yet the reasoning of the Court does not always treat them as separate; arguably the Court’s previous approach in making the matter one of a ‘reasonable expectation of privacy’ blurs any boundaries between these elements and in so doing, limits the scope of protection as far as ‘correspondence’ is concerned. The Grand Chamber seemed alive at least in some regards to this point: it specified that there is no requirement that correspondence be private. If that is the case, however, why is the issue of reasonable expectation of privacy relevant? Indeed, the Grand Chamber noted that the test of reasonable expectation of privacy is not the be all and end all of Article 8 (see para 78). Despite this recognition, the Grand Chamber still turned the question into one of a reasonable expectation of privacy:

It is open to question whether – and if so, to what extent – the employer’s restrictive regulations left the applicant with a reasonable expectation of privacy [para 80].

Is the Court here suggesting that correspondence is protected by Article 8 only when there is a reasonable expectation of privacy? Seemingly so, yet the Grand Chamber continued to state:

…. an employer’s instructions cannot reduce private social life in the workplace to zero. Respect for private life and for the privacy of correspondence continues to exist, even if these may be restricted in so far as necessary [para 80].

The position is consequently somewhat unclear. It would be more straightforward were the Court to recognise that correspondence constitutes a separate class aside from private life however broadly understood, and to deal with scope of Article 8 as a separate issue from that of interference and justification.  The current position unfortunately seems to be embedded in a long line of case law.
Bărbulescu is distinct from previous case law on employee monitoring in that it involved the State’s positive obligations. The Court has tended to adopt a different approach in regard to positive obligations than negative obligations. Rather than look at Article 8(2) and the tests of legitimate objective, lawfulness and necessity (in a democratic society), it adopts a fair balance test within which the State has a broad margin of appreciation. On this basis, the side-lining of the Copland ruling – which fell at the lawfulness stage in a standard Article 8(2) analysis – is understandable.  The Court seems to suggest, however, that there are parallels between positive and negative obligations:

[i]n both contexts regard must be had in particular to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, subject in any event to the margin of appreciation enjoyed by the State [para 112].

It is questionable whether the derogation from an individual’s rights by state actors really should be seen as being about a fair balance, a stance which arguably nudges the focus of protection away from human rights as paramount. Nonetheless, here the Court brings in factors from the standard Article 8(2) state surveillance case law aimed at preventing abuse of secret surveillance capabilities to provide guidance in finding the fair balance. It is noticeable that Copland is not considered but instead the State surveillance cases of Klass and Zakharov

It might be that the Grand Chamber accepted the referral because it wished to deal with failure of the Fourth Section to consider the EU Data Protection Directive, which protects against the collection of personal data without the explicit consent of an individual (or justified grounds for such collection).  This point was highlighted by Judge Pinto de Albuquerque. If so, the judgment fails to engage with EU data protection law in any meaningful way. The Grand Chamber noted that the national courts had considered the directive, but did not consider those rules themselves. Insofar as the Court does refer to international and European standards, it specifies the ILO standards and Council of Europe Recommendation CM/Rec(2015)5, rather than the Directive. It seems then that there has not been any direct engagement with the substantive EU data protection rules.


Photo credit: Aird and Berlis LLP

Thursday, 14 September 2017

The Privacy International case in the IPT: respecting the right to privacy?



Matthew White, PhD candidate at Sheffield Hallam University.

Introduction

On 21 December 2016, the Grand Chamber (GC) of the Court of Justice of the European Union (CJEU) in Cases C-203/15 and C-698/15 Tele2 and Watson ruled that blanket indiscriminate data retention was incompatible with European Union (EU) law. With that judgment, Professor Lorna Woods highlighted that this did not mean that the CJEU’s interpretation of the requirements of the Charter of Fundamental Rights (CFR) was ‘limited only to this set of surveillance measures.’ Hence, on 9 September 2017, the Investigatory Powers Tribunal (IPT) in Privacy International v the Secretary of State for Foreign and Commonwealth Affairs and Others handed down a judgment regarding the lawfulness under EU law of the acquisition and use of Bulk Communications Data (BCD) under s.94 of the Telecommunications Act 1984 (TA 1984) [4], including a request to the CJEU to answer further questions on EU law. This blog post concerns itself not with the preliminary reference itself, but the underlying flawed logic of the IPT’s reasoning with regards to fundamental rights protection.

The IPT’s faulty premise plagues its judgement from the beginning

The IPT highlighted that the issue before them was the balance between steps taken by the State, through Security & Intelligence Agencies (SIAs) and to ‘protect its population against terror and threat to life against the protection of privacy of the individual’ [6]. The premise of the IPT is deeply flawed from the outset thus impacting upon its reasoning. Daniel Solove has highlighted that ‘protecting the privacy of the individual seems extravagant when weighed against the interests of society as a whole’ (Daniel Solove, (2009) Understanding Privacy, Harvard University Press, p89). When privacy is confined to individualistic notions (particularly of ‘bad guys’), the argument for the departure of its protection becomes easier to justify, no less when that justification is protecting an entire nation.

Privacy is not just an Individual Right

Many (including Solove) have argued that privacy has a common, public and/or social value (Priscilla M. Regan, Legislating Privacy, Technology, Social Values and Public Policy, The University of North Carolina Press, 1995; Kirsty Hughes, ‘The social value of privacy, the value of privacy to society and human rights discourse’ in Beate Roessler and Dorota Mokrosinska (eds), Social Dimensions of Privacy Interdisciplinary Perspectives (Cambridge University Press). Privacy is a prerequisite for liberal democracies because it sets limits on surveillance by acting as a shield for groups and individuals (Alan F. Westin, Privacy and Freedom, New York: Atheneum (1967), p24). It is also important in that, in terms of voter autonomy and its attraction of talented people to public office (Hughes, p228-229). Privacy is also important for social relations (ibid, p229), even more so in that privacy invasive technologies can affect social life more generally (Beate Roessler and Dorota Mokrosinska, p2). A failure to protect social relations, is a failure to protect the democratic state (Francesca Malloggi. “The Value of Privacy for Social Relationships.” Social Epistemology Review and Reply Collective 6, no. 2 (2017): 68-77, p70).

These Powers do NOT just affect Individuals

Another problem with the IPT’s premise is that to argue that such measures as BCD acquisition/use only affect an individual’s privacy is simply not true. It should be obvious by the very name and nature of the powers that they are not targeted on individuals (para 2.1), something which the Respondents in Privacy International even attested to [9(ii)]. The draft BCD Code of Practice under the Investigatory Powers Act 2016 (IPA 2016) notes that ‘if the requirements of this chapter are met then the acquisition of all communications data generated by a particular CSP (Communications Service Provider e.g. BT, Google, iCloud) could, in principle, be lawfully authorised’ (para 3.5). Thus, any suggestion that the issue at hand only concerns an individual is palpably false. As the Grand Chamber (GC) of the European Court of Human Rights (ECtHR) in S and Marper v United Kingdom noted that the:

[M]ere storing of data relating to the private life of an individual amounts to an interference within the meaning [of Article 8]…subsequent use of the stored information has no bearing on that finding [67]. 

Due to the nature of the BCD powers, to say they only affect the individual is to ignore the reality of such sweeping powers which constitute mass interference of a ‘substantial portion, or even all of the relevant population’ [256] and do have chilling effects on totally innocent people (Rozemarijn van der Hilst, (2009), ‘Human Rights Risks of Selected Detection Technologies Sample Uses by Governments of Selected Detection Technologies’ p20; German Forsa Institute, Meinungen der Bunderburger zur Vorratsdatanspeicherung, 28 May 2008). Just like blanket data retention, BCD acquisition/use would ‘relate to all communications effected by all users, without requiring any connection whatsoever with’ [180] national security. 

Article 8 is not limited to Privacy

As ‘private life’ in Article 8 of the European Convention on Human Rights (ECHR) is not susceptible to exhaustive definition [66], this means that the notion is much wider than that of privacy (p12). This encompasses a sphere within which every individual can freely develop and fulfil his personality, both in relation to others and with the outside world (ibid). Private life also includes one’s physical and psychological integrity [58], autonomy [ibid] as well as a right to a form of informational self-determination [137], physical, social [159] and ethnic identity [58], professional activities [29], a certain degree of anonymity [42] and the protection of personal data (S and Marper, [103]).

This does not even begin to consider how such concepts overlap (p10-11). Nor is Article 8 limited to private life, as ‘correspondence’ [44] and the potential for ‘home’ [41] and family life (p21) (even more so now under the new regime of the IPA 2016 in light of the Internet of Things etc) are equally important in the surveillance context. The measure ‘strikes at freedom of communication between users of the postal and telecommunication services [41] because we increasingly use the internet to ‘establish and support personal relationships, bank, shop, to gather the news, to decide where to go on holiday, to concerts, museums or football matches. Some use it for education and for religious observance – checking the times and dates of festivals or details of dietary rules.’ Very few aspects of our lives are untouched by the internet (Paul Bernal, ‘Data gathering, surveillance and human rights: recasting the debate’ (2016) Journal of Cyber Policy, 1:2 243, p247).

Correspondence becomes particularly important when it affects legal professional privilege (LPP) and journalistic sources. This was a criticism of data retention laws in that it did not provide any exceptions for professional secrecy (Tele2 and Watson, [105]). The ECtHR in Kopp v Switzerland noted that Swiss law violated Article 8 because it provided ‘no guidance on how authorities should distinguish between protected and unprotected attorney-client communications’ [73-75]. BCD acquisition/use suffers from the same drawbacks.  

Thus, when the IPT refers merely to individual privacy, it does so without acknowledging the breadth and multifaceted nature of Article 8, or how surveillance measures impact on them in various ways, which limits their ability to give a thorough assessment resulting in a possible divergence from the ECtHR.

Confining the discussion to Privacy foregoes the broader context of Fundamental Rights Protection

[i]t is hard to imagine, for example, being able to enjoy freedom of expression, freedom of association, or freedom of religion without an accompanying right to privacy (Benjamin J. Goold, ‘Surveillance and the Political Value of Privacy’ (2009) 1:4 Amsterdam Law Forum 3, p4).

When Article 8 is confined to the narrow aspect of the privacy of a suspected terrorist, not only does it overlook the breadth of Article 8 (mentioned above) but it does not even entertain other fundamental rights that might be at stake. This is also a view the then Independent Reviewer of terrorism legislation, David Anderson acknowledged (para 2.12) and Paul Bernal (Paul Bernal). The CJEU were also aware of this to some degree in Tele2 and Watson where they noted that the data retention could have an effect on the use of means of electronic communication and, consequently, on the exercise by the users thereof of their freedom of expression, guaranteed in Article 11 of the CFR [101], which is essentially equivalent to Article 10 ECHR.

Article 10 ECHR: Freedom of Expression

Article 10 applies to communications via the internet [34] (in French), regardless of the message conveyed [55] and irrespective of its nature [47]. The ECtHR regards freedom of expression as constituting ‘one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment [100]. Not only does this highlight freedom of expressions value to democracy, it highlights one of the various ways in which Article 10 interplays with Article 8 i.e. self-development [117].

Another way in which Articles 10 and 8 interlink is that of anonymity, where Lord Neuberger noted that in the context of anonymous speech, Article 8 reinforces Article 10 (para 25). Within that context, Neuberger continued that Article 8 rights are of fundamental importance (ibid, para 42). Political reporting and investigative journalism attract a high level of protection under Article 10 [129]. The then Special Rapporteur for the United Nations of freedom of expression, Frank La Rue highlighted that that restrictions on anonymity can have a chilling effect, which dissuades the free expression of information and ideas (para 49).

Article 9 ECHR: Freedom of Religion, Thought and Conscience

Like Article 10, Article 9 is regarded as one of the foundations of a democracy [34]. Article 9 entails the freedom to manifest one’s religion can be done in public or in private [78]. It also includes the absolute and unconditional right to hold a belief [ibid, 79]. The right to manifest one’s belief has a negative aspect, in that an individual has a ‘right not to be obliged to disclose his or her religion or beliefs and not to be obliged to act in such a way that it is possible to conclude that he or she holds’ [41]. BCD acquisition/use makes this entirely possible (para 1.1), causing a notable chilling effect.

Article 11 ECHR: Freedom of Association/Assembly

The GC of the ECtHR has referred to freedom of assembly, like Article 9 and 10 as one of the foundations of a democratic society [91]. Similarly, freedom of association is of utmost importance because it ‘enables individuals to protect their rights and interests in alliance with others’ (p4). The Steering Committee on Media and Information Society (Sterling Committee) in their to human rights for Internet users when referring to Article 11 noted that users have ‘the right to peacefully assemble and associate with others using the Internet’ (para 61). Just as noted above with other Convention Rights, surveillance has harmful effects on freedom of association (see also Valerie Aston, ‘State surveillance of protest and the rights to privacy and freedom of assembly: a comparison of judicial and protester perspectives’ (2017) EJLT 8:1).

The enjoyments of the rights contained in Articles 9-11, which are foundations for democracy (especially online) are underpinned by Article 8.

How the premise impacts upon the IPT’s reasoning

Given the above mentioned, it is important to discuss how the lack of consideration for the potential effects on other fundamental rights affects the IPT’s reasoning.

It’s not all about Utility

The IPT discussed the evidence for supporting BCD acquisition/use, ranging from Anderson’s report, the case studies within them, Mi5 witness statements (Privacy International, [11-17]). The IPT makes reference to the critical value of BCD acquisition/use and the need for the haystack, in order to find the needle. A quick counter to the second point is ‘[i]f you’re looking for a needle in a haystack, how does it help to add hay?’ The problem with the needle in the haystack argument is that it could be used to justify any amounts of data to be stored/used, even all that is available.

Furthermore, this part of the judgement concerns what the IPT considers to be ‘The Facts’ yet on closer examination, not everything highlighted by the IPT are facts. For example, the IPT refers to the Respondents’ witnesses speaking persuasively and refers to an Mi5 witness. If the IPT were to regard witness statements as facts, then for example, Bruce Schneier’s, or former National Security Agency (NSA) official William Binney’s denunciation of mass surveillance should be given equal weight. There is no suggestion that this is what was (or should have been) presented before the IPT, but it highlights the weight given to opinions by the IPT. Discussing only the evidence of the Respondent also demonstrates the problematic information asymmetry in the surveillance context where:

[I]nformation asymmetrification provides a foundation on which the existence of elites is built and possibilities of strengthening that asymmetry will be enthusiastically sought (Geoffrey Lightfoot and Tomasz Piotr Wisniewski, ‘Information asymmetry and power in a surveillance society’ (2014) Information and Organization 24 214–235, p230).

Regarding the first point, the value of a measure does not necessarily make it necessary [48]. The IPT considers that although BCD acquisition/use is essential, this does not completely resolve the question of proportionality (Privacy International, [16]). Lord Kerr in his dissenting opinion in Beghal v DPP quite rightly noted that ‘powers which can be used in an arbitrary or discriminatory way are not transformed to a condition of legality simply because they are of proven utility’ [93]. Although the IPT did find s.94 not to be compliant with Article 8 prior to its avowal, this follows a trend of watering down the prescribed by/in accordance with law requirements noted in Kennedy v United Kingdom in where for the IPT, honesty appears to be synonymous with legality.

Moreover, the supporting evidence for BCD acquisition/use does not refer to what type of communications data was used, how it was used, or why it was key. The IPT noted that nothing in the evidence they examined contradicts what was set out in paragraphs 11-16. This is problematic for two reasons, if the IPT only considered evidence from the Respondent, then it would make sense that there is less likelihood that evidence presented would contradict arguments put forward, and thus becomes a one-sided argument. Secondly, as Bruce Schneier noted ‘no method of surveillance or inquiry will ever stop a lone gunman.’ Although, the murder of Fusilier Lee Rigby involved two assailants, the Intelligence and Security Committee (ISC) noted that Mi5 ‘put significant effort into investigating [Michael Adebolajo] and employed a broad range of intrusive techniques. None of these revealed any evidence of attack planning.’ What this demonstrates is the contrary view that all the surveillance in the world did not prevent individuals ‘such as the Fort Hood shooter, or Anders Behring Breivik, or the Charlie Hebdo attackers.’ Therefore, the IPT draws attention to its obscured view given that it has inquisitorial powers (s.68(2)(b) of the Regulation of Investigatory Powers Act 2000 (RIPA 2000)) and could have sought information regarding counter arguments.

No Genuine Intrusion?

When the IPT discussed the operation of s.94 TA 1984, they noted that access to BCD is either targeted or more likely to involve electronic trawling of masses of data which are not ‘read’ to find the needle in the haystack (Privacy International, [19]). The IPT continues that a ‘miniscule quantity of the data trawled is ever examined. There is thus no genuine intrusion to any save that miniscule proportion’ (ibid). This reasoning of the IPT is almost as if the UK exists in a vacuum when it comes to the findings of the GC in S and Marper. The IPT’s reasoning is that only when communications data is accessed/examined, then follows genuine intrusion. This is why confining the issue to privacy proves problematic because the GC in S and Marper noted that the protection of personal data is of fundamental importance to the enjoyment of private and family life. This protection begins as soon as the data is processed and retained, thus marks the genesis of genuine intrusion, any subsequent use has no bearing on this. The IPT’s reasoning follows the sentient being argument which suggests that privacy is only interfered with when private data is read by an intelligence officer. Following this argument would lead to the logical conclusion of sowing the seeds of the total destruction of private life and data protection as surveillance becomes increasingly automated e.g. by analogy automatic number plate recognition (ANPR) [169-170], see also CJEU Opinion on PNR [121-132]. Using last century’s arguments (if one could even call it that) are not suitable today.

The IPT maintains the approach of significantly downplaying the severity of interference caused by storing and using communications data. The IPT had previously accepted a false analogy from the Respondent of equating GPS data (a particular type of communications data) with communications data in general to argue that it is not as serious as interception (Matthew White, ‘Protection by Judicial Oversight, or an Oversight in Protection?’ (2017) Journal of Information Rights, Policy and Practice 2:1, p9). This was argued that when giving weight to this position:

[I]t did so by considering a case of an isolated specific type of data, which cannot be used to justify an argument that interference is less severe whilst ignoring the cumulative total of the different types of communications data (ibid).

Malte Spitz of the German Green party published data that was retained under Germany’s data retention laws in which Zeit Online created an interactive map detailing Spitz’s movements. Biermann continued that this data revealed:

[W]hen Spitz walked down the street, when he took a train, when he was in an airplane. It shows where he was in the cities he visited. It shows when he worked and when he slept, when he could be reached by phone and when was unavailable. It shows when he preferred to talk on his phone and when he preferred to send a text message. It shows which beer gardens he liked to visit in his free time. All in all, it reveals an entire life.

Advocate General (AG) Saugmandsgaard Øe in Tele2 and Watson noted that that in the individual context a general data retention obligation would facilitate equally serious interference as targeted surveillance measures, including those which intercept the content of communications [254]. AG Saugmandsgaard Øe continued that the risks associated with access to communications data ‘may be as great or even greater than those arising from access to the content of communications’ [259]. For example, replying to an email saying ‘lmao’ my not reveal much to an observer, but the observer could learn what email address the message was sent from and to, the time and date that message was sent, the location of when it was sent, what browser was being used and what device was being used etc. This simple analogy demonstrates why yet again the IPT are incorrect to downplay the revealing nature of communications data given that people get killed based on it. This seriousness only intensifies when the acquisition/use is in bulk.

Powerful Submissions?

The IPT highlighted the powerful submissions (hence very persuasive (Privacy International, [51])) made by the Respondent:

The use of bulk acquisition and automated processing produces less intrusion than other means of obtaining information.
The balance between privacy and the protection of public safety is not and should not be equal. Privacy is important and abuse must be avoided by proper safeguards, but protection of the public is preeminent.
The existence of intrusion as a result of electronic searching must not be overstated, and indeed must be understood to be minimal.
There is no evidence of inhibition upon, or discouragement of, the lawful use of telephonic communication. Indeed the reverse is the case.
Requirements or safeguards are necessary but must not, as the Respondents put it, eviscerate or cripple public protection, particularly at a time of high threat [50].

It is important to deal with these points individually (some of which are already dealt with above).

The Respondents maintain that BCD acquisition/use is less intrusive than other methods of gathering information without explaining what other methods are more intrusive or why and why this is the least restrictive measure to obtain the objective [260].

As noted above, this is not just an issue of narrow privacy, but an issue of other applicable fundamental rights protected by the ECHR. The premise of the balance between privacy and public safety i.e. security is a miscast (Paul Bernal, p244), misleading (ibid) and false (see here, here and here) one to begin with. It ignores factors that demands for security can actually reduce security therefore, safety (Paul Bernal, p224; Harold Abelson et al, Keys under doormats: mandating insecurity by requiring government access to all data and communications. Journal of Cybersecurity, 2015, 1–11, p5) and otherwise prove ineffectual (see here and here). It also suggests that privacy should always be on the back foot when the issue concerns the protection of the public, when the irony is that it’s the publics’ data that is being acquired and used (see social dimension of privacy above which protects against utilitarian calculation of majoritarian societal interests and/or political whims (Kirsty Hughes, p 227)). It also assumes that when Convention Rights are a stake, the only question that needs to be answered is whether the appropriate balance has been struck, forgoing legality and necessity.

These types of arguments would seemingly fall into the narrow nothing-to-hide-like argument that looks for singular type of injury, be it some grave physical violence, a loss of substantial money or something severely embarrassing (Daniel Solove. Nothing to Hide: The False Tradeoff between Privacy and Security (2011). Yale University Press, p29). This of course also ignores both European Courts on the severity of the mere storage of data interfering with private/family life/freedom of expression/association [107] and data protection.

Contrary to what the Respondents assert, there is evidence for chilling effects due to surveillance measures, some highlighted above. Moreover, assessing chilling effects should not just be measured by inhibitions, but actual methods of protecting online activity. There was An increase in Virtual Private Network (VPN) (this essentially aims hide online activity) subscriptions in Australia when their national data retention laws came into force and in the UK when the IPA 2016 and Digital Economy Act 2017 (DEA 2017) were in passing. Or by the increasing the use of ad blockers, which 11 million devices in the UK now have. As Edward Snowden revealed ‘government surveillance efforts are sometimes bolstered by online advertising practices.’ Moreover, Solove contends that the value of protecting against chilling effects is not measured simply by its effects on individuals exercising their rights, but its harms to society because among other things ‘they reduce the range of viewpoints expressed and the degree of freedom with which to engage in political activity’ (Daniel J. Solove, ‘’I’ve Got Nothing to Hide’ and Other Misunderstandings of Privacy’ (2007) San Diego Law Review 44 745, p746). It is true that the uptake in technology has increased e.g. smartphones but this does not necessarily disprove the idea of chilling effects etc. This is due to ignoring the fact that many may not be fully aware of what information is being collected (Sandra Braman, 2006, Tactical memory: The politics of openness in the construction of memory Sandra Braman. First Monday, 11(7); Connor Sheridan, (2016) "Foucault, Power and the Modern Panopticon". Senior Theses, Trinity College, Hartford, CT 2016. Trinity College Digital Repository, p48; Majority of Brits Unaware of Online Surveillance) where awareness leaves open the possibility of resistance (Andrew Roberts, Privacy, Data Retention and Domination: Digital Rights Ireland Ltd v Minister for Communications, (2015) 78(3) MLR 522–548, p545). This resistance could be not using the technology, to finding ways to circumvent surveillance law (self-regulatory), protests (Hintz, A. & Dencik, L. (2016). The politics of surveillance policy: UK regulatory dynamics after Snowden. Internet Policy Review, 5(3), p8) (political), or legal action all designed to protect fundamental rights.

This is the ‘the ends justify the means’ justification. Not every interference or derogation from the principle of protection of fundamental rights are necessary in a democratic society.

Prior Authorisation
The IPT noted that Secretary of State authorisations complied with the ECHR for reasons set out in a prior judgment. The IPT were of the opinion that the ECtHR in Szabo & Vissy v Hungary were not recommending any new safeguards because Hungarian law fell below even existing principles [60]. This of course does not consider cases such as Dumitru Popescu v Romania [71-73], Iordachi and Others v Moldova [40], and Uzun v Germany [72] all endorsing the view that the body issuing authorisations for interception should be independent and that there must be either judicial control or control by an independent body over the issuing body's activity.

So, when the ECtHR in Szabo endorses the view in Iordachi that ‘control by an independent body, normally a judge with special expertise, should be the rule and substitute solutions the exception, warranting close scrutiny’ [77] it is difficult to suggest the ECtHR in Szabo were not strongly advocating for prior judicial control (Matthew White, p15). The ECtHR did acknowledge that post factum oversight may counterbalance the short comings of initial oversight (referring to the IPT in Kennedy) (Szabo, [77]). However, it has already been argued that this counterbalance is not adequate (Matthew White, p14-16).

Notification

According to the IPT, a requirement of notification is inadequate in the circumstances of national security because (a) national security is ongoing and (b) it relates to further operations and methodologies (Privacy International, [62]). The IPT also noted that this is not required for compliance with the ECHR [63]. This, however, overlooks Association for European Integration and Human Rights and Ekimdzhiev v Bulgaria where the ECtHR found violations of Article 8 and 13 (effective remedy) for among other things, a lack of a notification procedure [94] and [103]. Yet Ekimdzhiev concerned national security and the ECtHR even referred to the notification in the national security context in Germany for both individual (Klass v Germany, [11] and general surveillance measures (Weber and Saravia v Germany, [51-54] and in Leander v Sweden [31]). This is permissible due to the ECtHR establishing the principle that:

[A]s soon as notification can be made without jeopardising the purpose of the surveillance after its termination, information should be provided to the persons concerned (Ekimdzhiev, [90]).

This establishes that to the ECtHR’s mind, notification in the national security context is not inappropriate or inadequate considering this has been the practice of Germany for decades. Furthermore, the ECtHR acknowledge that it would not be desirable in all circumstances to notify, therefore leaving that possibility open whereas the IPT would prefer it kept shut. Also, in the national security context, the GC of the ECtHR in Roman Zakharov v Russia noted that notification was inextricably linked ‘to the effectiveness of remedies before the courts and hence to the existence of effective safeguards against the abuse of monitoring powers’ [234]. A point in which Paul de Hert and Franziska Boehm share.

Although the GC referred to the alternative to notification of the UK system i.e. the IPT jurisdiction (Roman Zakharov, [234]), de Hert and Boehm have questioned whether Kennedy ‘is capable of responding to the challenges arising out of the use of new surveillance techniques’ (Franziska Boehm and Paul de Hert, The rights of notification after surveillance is over: ready for recognition? (Yearbook of the Digital Enlightenment Forum, IOS Press 2012), pp. 19-39, p37). Boehm and de Hert continue that in light of powers such as data retention and ‘fishing expeditions’ that target a greater number of people without suspicion, a notification duty appears to be an effective tool to prevent abuse (ibid, p37-8). Finally, Boehm and de Hert note that the Belgian Constitutional Court has now adopted the notification principle as a requirement to comply with Article 8 (ibid, p38). The IPT highlights difficulties with the notification of BCD acquisition/use as to whether notification should be to everyone whose data is in the database, those subject to an electronic search or all those who feature in data in targeted access (Privacy International, [64])? Accepting this premise would accept the powers that are exercised to begin with, which is at the heart of this issue.

Conclusions: Be careful what you wish for

Ultimately, the IPT referred the question as to whether the Tele2 and Watson requirements apply in the national security context to the CJEU (ibid, [72]). This blog post has argued that much of the IPT’s reasoning with regards to fundamental rights protection is lacking. By confining itself to a restrictive notion of individual privacy of a person of interest, the IPT blinds itself to the broader notions of Article 8 and the other fundamental rights it underpins. Some aspects of the IPT’s reasoning (and Respondent’s arguments) is not even consistent with the very human rights system (ECHR) the Respondents are seeking to rely upon. The ECtHR have firmly noted that:

Given the technological advances since the Klass and Others case, the potential interferences with email, mobile phone and Internet services as well as those of mass surveillance attract the Convention protection of private life even more acutely (Szabo, [53]).

The GC in Roman Zakharov found that Russian law to be in violation of Article 8 because interferences with privacy rights were ordered ‘haphazardly, irregularly or without due and proper consideration’ (Roman Zakharov, [267]) in the national security context. Judge Pinto de Albuquerque noted that Roman Zakharov was a rebuke of ‘strategic surveillance’ (Szabo, Concurring Opinion of Judge Pinto de Albuquerque, [35]) which would accord a previous concurring opinion of judge Pettiti in which surveillance should not be used for ‘fishing’ exercises to bring in information (Kopp). If as the IPT say that a ‘miniscule quantity of the data trawled is ever examined’ how would this square with the position of ‘[t]he automatic storage for six months of clearly irrelevant data cannot be considered justified under Article 8’ (Roman Zakharov, [255])? Time will tell if the ECtHR follows this trend in Big Brother Watch and Others v UK, Bureau of Investigative Journalism and Alice Ross v UK and 10 Human Rights Organisations v UK. Therefore, the IPT should not convince itself of the ‘illusory conviction that global surveillance is the deus ex machina capable of combating the scourge of global terrorism’ (Szabo, Concurring Opinion of Judge Pinto de Albuquerque, [20]). Surveillance has never just been an issue of privacy, or private life or else the ECtHR would never have uttered its awareness:

[O]f the danger such a law poses of undermining or even destroying democracy on the ground of defending it, affirms that the Contracting States may not, in the name of the struggle against espionage and terrorism, adopt whatever measures they deem appropriate (Klass, [49]).

Barnard & Peers: chapter 9

Photo credit: Pixabay

Friday, 8 September 2017

A Pyrrhic victory? The ECJ upholds the EU law on relocation of asylum-seekers





Professor Steve Peers

How should the EU deal with the perceived ‘migrant/refugee crisis’? It has done a number of things, but back in September 2015, when the numbers of arrivals were peaking, it did something truly remarkable – requiring Member States to relocate 160,000 asylum-seekers from the ‘frontline’ states of Italy and Greece, which were bearing most of the burden of new arrivals.

In fact, this took the form of two separate decisions, as I discussed in detail at the time. The first decision was relatively uncontroversial, since it concerned only 40,000 people and Member States had agreed to admit them by consensus. But the second decision, concerning the other 120,000 people, was adopted against the objection of several Member States and set out mandatory quotas for admission. This led to legal action by Slovakia and Hungary to challenge this decision before the ECJ (see discussion of the Slovak challenge here).

This week, the ECJ ruled against this legal challenge, following soon after the opinion of its Advocate-General, who took the same view. As we shall see, this case brings into sharp relief the conflict between effectiveness and legitimacy in EU law – and indeed between effectiveness as a legal principle and practical effect on the ground.

The Court’s judgment

The Court gathered the legal arguments into three main areas: the ‘legal base’ (ie whether the EU had the power to adopt the second relocation decision at all); the procedure followed to adopt the decision; and the substance of the decision, in particular as regards the principle of proportionality.

Legal base

The ‘legal base’ for the adoption of the decision was Article 78(3) of the Treaty on the Functioning of the European Union (TFEU). This clause has been around since the Maastricht Treaty, being amended by the Amsterdam and Lisbon Treaties; but it had never been used before September 2015. It says that if ‘one or more Member States’ face ‘an emergency situation characterised by a sudden inflow’ of non-EU citizens, the Council (Member States’ interior ministers) may ‘adopt provisional measures’ to benefit those Member States, on a proposal from the Commission after consulting the European Parliament (EP). The default rule of qualified majority voting in the Council implicitly applies. So do the opt-outs for the UK, Ireland and Denmark.

First of all, the Court rejected the argument that the relocation decision was a ‘legislative act’, sticking to the strict definition of legislative acts set out in the Treaties. In short, the decision was not a legislative act because the Treaty doesn’t define it as one. It followed from this that there was no obligation for the Council to consult national parliaments or to meet in public when adopting the decision.

Next, the Court ruled that it was possible for this non-legislative act to amend existing legislation, namely the Dublin III Regulation on responsibility for asylum-seekers. Taking a broad view of the power conferred by Article 78(3), ‘provisional measures’ could amend legislative acts for a limited period, as long as they do not amend legislation permanently. That was the case here, since the decision only applied for two years and related to a specified and limited number of people.

The Court also ruled that the decision was ‘provisional’ in that it only applied for two years. A shorter period might not have been enough time to address the crisis, and the previous limitation to six months had been removed when the Treaty was amended, suggesting an intention by Treaty drafters to give the EU more flexibility. While anyone who obtained refugee status would in principle keep that status after the decision ceased to apply, that did not mean the decision wasn’t provisional, since obtaining long-term status is inherent in the idea of asylum policy. The amount of time it might take to adopt legislation by comparison was irrelevant.

Then the Court ruled that the influx of asylum-seekers was sufficiently large to count as ‘sudden’ for the purposes of Article 78(3), and the link between the influx of people and the emergency was strong enough to say that that emergency was ‘characterised’ by the influx. 

Procedural issues

First, the Court rejected the argument that the decision breached the guidelines set by the European Council (Member States’ leaders), which have a specific power to set such guidelines as regards Justice and Home Affairs (JHA) law. It pointed out that those guidelines only related to the first, uncontested, relocation decision, then went on to point out that the European Council could not constrain either the Commission’s power to propose measures or the Council’s power to adopt them by a qualified majority. As for the alleged breach of the EP’s prerogatives, while it must be reconsulted if there is an essential change to the Commission’s proposal – and the removal of Hungary from the list of beneficiaries was such an essential change – it had been informed of that essential amendment to the text before it voted.

Moreover, the Commission had consented informally to the Council’s change to its text – which is a requirement for the Council to vote by qualified majority. Also, the Court took a flexible view of the rules on languages used in the Council. Only the main texts under consideration, not all amendments to them, need to be available in all EU languages.

Substantive issues

The Court rejected the arguments that the decision was not suitable to obtain its objectives. True, as Commission reports have pointed out, not many asylum-seekers have actually been relocated, but that could not be foreseen at the time – and that was implicitly partly the fault of the plaintiff Member States for not implementing the decision in practice. (The Advocate-General’s opinion dismisses this “I killed my parents, give me sympathy as a poor orphan” line of argument more bluntly).

In the Court’s view, the Council could not be limited to financial support alone and so had the power to set mandatory quotas against Member States’ wishes. Also the Court claimed that the EU’s existing temporary protection Directive (which was adopted in 2001 to deal with future crises, but never actually used) could not have worked as an alternative, since it only provided for protection where asylum-seekers are located – so implicitly did not provide for relocations between member States.

Next, the Court rejected Hungary’s argument that given the large numbers of asylum-seekers it was receiving, it should not have been allocated any more – given that Hungary had expressly argued that it did not want any relocation of asylum seekers from its territory, it was in effect estopped from arguing that it was overburdened that it could not accept any more of them. (The Opinion sets out the hilarious argument that while Hungary ‘continues to form part of the Member States that support’ Italy and Greece, it ‘does so in a different way from the other Member States’ by, er, not actually helping Italy and Greece at all.)

Furthermore, the Court rejected the argument that the EU rules violated the Geneva (Refugee) Convention by potentially forcing asylum seekers to leave the country where they were located, pointing out that this did not subject them to refoulement to an unsafe country but only changed which Member State their application for asylum would be considered by.

Finally, the Court rejected Poland’s arguments as an intervener. In particular, the argument that Member States which are ‘virtually ethnically homogeneous, like Poland’ should not receive migrants was rejected, both because it infringed the principle of solidarity and because considering ‘the ethnic origin of applicants for international protection’ would be ‘clearly contrary to EU law and, in particular, to Article 21 of the Charter of Fundamental Rights of the European Union’, which guarantees non-discrimination on grounds of (among other things) ethnic origin.

Comments

The Court’s judgment is suffused by the principle of solidarity between Member States on asylum and immigration matters, as set out in Article 80 TFEU (the Advocate-General’s opinion, even more so). To that end, it gives the EU broad powers, and wide discretion to use them, to address the perceived crisis. 

Most of the Court’s arguments are convincing. It would indeed be hard to address a large influx of people without amending EU legislation temporarily, given the wide scope of that legislation and the broader context of establishing a ‘common European asylum system’.  But the Court is right to ensure that this power is not unlimited, by insisting that any emergency measure can only be temporary and limited in scope. This means that any future measure more ambitious than the 2015 decision might be challenged for going beyond the limits set out by the Court. 

Note that the Court was not asked if Article 78(3) decisions can amend the Treaties temporarily, since the contested decision did not do so. The answer must surely be no, given the hierarchy of norms in EU law. So the general rules on EU asylum law set out in Article 78(1) TFEU – including the obligation to respect non-refoulement, the Geneva Convention, and other relevant (human rights) treaties – continue to apply when emergency measures are adopted. (This is implicitly confirmed by the Court’s willingness to consider the validity of the decision in light of the Geneva Convention). Article 78(3) cannot therefore be a route to address perceived crises by means of (for instance) detentions, interceptions or expulsions which would violate that Convention or the non-refoulement rule, or which would otherwise breach human rights law – including the EU Charter of Rights, which has the ‘same legal value’ as the Treaties.

Nor was the Court asked about the separate proposal to amend the Dublin III Regulation to set up a permanent system for addressing emergencies. This has a different legal base than Article 78(3), so perhaps an outvoted Member State could re-run the arguments that failed in this week’s judgments. However, the Advocate-General’s opinion supports the legality of this proposal too.

The Court’s rulings on the decision-making issues are also convincing, and are an implicit rebuke to those non-lawyers who argue that the European Council is the fount of all EU power. Then again, given Member States’ unwillingness to apply these decisions in practice, this saga confirms the argument that it is politically unrealistic for the EU to undertake very controversial ‘high politics’ policies – no matter how legally secure they are – without all participating Member States’ consent.

Odd as it may seem, there’s also a possible Brexit relevance to this judgment, since the EU’s negotiation position takes the form of guidelines adopted by the European Council and then negotiation directives adopted by the Council, and the Council ultimately concludes the withdrawal agreement by qualified majority. In the event that a Member State is outvoted when concluding the withdrawal agreement and so challenges the agreement arguing that the reference to the European Council requires acting by consensus, this judgment suggests by analogy that it’s the Council’s power to act by a qualified majority vote which is legally decisive.

On the substance of the legal challenge, it’s notable that the Court misinterpreted the temporary protection Directive, which does provide for potential transfers of beneficiaries between Member States. The real distinction between the two – as the Advocate-General’s opinion points out – is that the Directive makes such transfers conditional on the voluntary consent of Member States, whereas the contested relocation decision sets out mandatory quotas. In any event, there’s nothing in the decision to give priority to the ‘emergency’ route over the ‘temporary protection’ route: it’s the Council’s discretion which path (if any) to choose in the event of a perceived crisis.

It’s also striking that the Court rejected Hungary’s argument about the Geneva Convention, confirming judicially the view long implicit in EU legislation (but contested by some refugee advocates) that sending an asylum-seeker to another country which is sufficiently ‘safe’ to consider their application is not a breach of the Convention. (Cynics might suggest that Hungary advanced this argument in the hope that the ECJ would in fact reject it in these terms). Of course, this begs the question as to when a country is sufficiently ‘safe’ – an issue frequently litigated in the ECJ as regards other Member States but not (yet) as regards non-Member States.

That brings us to the Court’s response to the Polish intervention. The Court didn’t have to respond to that intervention, since it ruled that it was inadmissible. But it clearly wanted to, and did so in the strongest terms, ruling that Poland's argument would breach the principle of non-discrimination on grounds of ethnic origin. The Court’s approach comes across as a kind of ‘reverse dog whistle’ – saying “Get lost, you’re racist” as subtly as it could to a Member State. And it follows from the Court’s ruling on this point that any kind of Trump-like ‘Muslim ban’ would violate EU law too, since the Charter equally bans religious discrimination.

But such arguments won’t convince those with a frenzied obsession about ‘white genocide’, just as ruling that the quotas are legal won’t convince Member States (and not just the plaintiff Member States in this case) to apply the relocation decision, which is about to expire anyway. As noted above, this saga shows the tension between legitimacy and effectiveness in EU law sharply: the Court defends the decision’s legal legitimacy in light of the principle of effectiveness, but that decision’s political legitimacy has been ebbing away since it was first adopted. That latter form of legitimacy was not bolstered by adopting the decision against the opposition of several Member States – and indeed the Court’s ruling has now given them another stick with which to beat the EU in particular and ‘scary Muslim migrants’ more generally.  Meanwhile the EU has taken a different course towards the perceived crisis, working with Turkey and now Libya to reduce the numbers who reach the EU to start with – although nothing will satisfy those who believe that ‘none is too many’.

Barnard & Peers: chapter 26
JHA4: chapter I:5

Photo credit: Business Insider

Thursday, 7 September 2017

Learning to let go – the Charter of Fundamental Rights after Brexit



Eduardo Gill-Pedro, Post-Doctoral Researcher, Faculty of Law, Lund University: Eduardo.gill-pedro@jur.lu.se

The UK Government’s proposal that the Charter of Fundamental Rights of the EU (the Charter) will not be converted into UK law following Brexit (clause 5(4) of the EU Withdrawal Bill) has generated strong reaction from opposition parties. The Labour party has indicated that it considers this to be a ‘red-line’ issue, and that it will not support a bill that does not incorporate the charter into UK law. Keir Starmer, the Shadow Brexit Secretary, had earlier indicated that Labour would only support a deal which met its ‘six tests’, one of which was the requirement that such a deal would ‘defend rights and protections and prevent a race to the bottom’.

In this blog entry I will argue, first, that there is no necessary connection between, on the one hand, incorporating the Charter into UK law and on the other, defending rights and protections of individuals in the UK following Brexit, and second, that upholding a commitment to be bound by the Charter post-Brexit is problematic from a democratic legitimacy perspective.

The Charter is not necessary to protect rights

The continued protection of rights in the UK is not dependent on continued adherence to the Charter. This is because the point of the Charter, indeed the point of EU fundamental rights as a whole, (at least to the extent that they bind the Member States, not necessarily the EU institutions) is not to ensure the protection of fundamental rights per se, but rather to ensure that the project of European integration is not jeopardised by the requirement to protect fundamental rights. This was expressly acknowledged by the Court of Justice of the EU (CJEU), when it stated:

“it should be borne in mind that the reason for pursuing the objective [of protecting fundamental rights in EU law], is the need to avoid a situation in which the level of protection of fundamental rights varies according to the national law involved in such a way as to undermine the unity, primacy and effectiveness of EU law” (Case C-206/13 Siragusa, para. 32)

The Charter is thus best seen as a mechanism which is intended to protect the autonomy of EU law vis a vis both national law and the ECHR, to ensure that the supremacy of EU law is accepted by national legal orders, and to ensure the effective application of EU law in the legal orders of the member states. Further, while EU fundamental rights reflect the constitutional traditions common to the member states, as well as the rights set out in the ECHR, they must be interpreted and applied “within the framework of the structure and objectives of the Community” (Case 11/70 Internationale Handelsgesellschaft mbH). This framework of objectives is structured in such a way as to contribute to “the implementation of the process of integration that is the raison d’être of the EU itself” (Opinion 2/13, paras 172 and 177).

This demand, that EU fundamental rights are interpreted in a way that respects the framework of objectives of the EU, can mean that in some cases these rights will operate as ceilings, and member states will not be able to apply their own, higher standard of protection (as in Internationale, as well as in the more recent case of C-399/11 Stefano Melloni v Ministerio Fiscal EU:C:2013:107), and in other cases they operate as floors, and member states will be required to grant protection to interests which would not be recognised as rights in their own legal order (See for instance Cases C-465/00, C-138/01 and C-139/01 Rechnungshof v ÖsterreichischerRundfunk and Others EU:C:2003:294 and C-426/11 Mark Alemo Herron and others v Parkwood Leisure Ltd EU:C:2013:521).

In both these cases, the level of protection is set in light of the structure and objectives of the EU. In other words, whether the national court will be required or permitted to protect the particular interest at stake will be determined in light of the objective of furthering European integration. This is not to say that this is the sole consideration. But it is to say that it is a consideration that must always be present when interpreting or applying EU fundamental rights.

If following Brexit, the UK is no longer bound by the Charter, this does not mean that it no longer needs to protect human rights – national courts will still be required to protect the ECHR, as well as the rights guaranteed in the UK’s ‘unwritten constitution’. It will also be required to apply the rights in the EU legislation which became domestic law through Clauses 2 to 4 of the Bill (which provide that EU-derived domestic legislation will be saved (Clause 2), directly applicable EU legislation will be incorporated into UK law (Clause 3) and EU rights derived from the European Communities Act 1972 will be saved (Clause 4). What it does mean is that it will no longer be required to interpret and apply human rights in light of the objectives of European integration. Given that Parliament has passed the Bill requiring the government to trigger Article 50, and that the UK Government has sent a letter to the EU commission announcing the UK’s decision to leave the EU in less than two years’ time, we must conclude that the UK no longer shares the objective of furthering European integration, at least to the extent that such integration includes the UK. And these seems to be something which both the Conservative and the Labour party have accepted, given that both parties voted in favour of the Article 50 Bill.

If it is the case that the UK no longer shares the objective of furthering European integration, then it does not make sense to remain bound by a Charter which will require the UK to interpret and apply fundamental rights in light of such an objective.

Brexit and the democratic deficit

The meaning of the Charter rights is determined by the Court of Justice, and the Court determines the meaning of those rights in light of the objectives of the EU. This is arguably already problematic from the perspective of the democratic legitimacy of the member state when the member state shares those objectives (This is the argument I made in my doctoral thesis EU Fundamental Rights and National Democracies: contradictory or complementary (Lund, 2016). Fundamental rights are conditions of democracy, and as such they should also be outcomes of democratic processes (J. Habermas Between Facts and Norms - Polity, 1996).

Once the UK leaves the EU, this democratic deficit will be greatly aggravated. Because then the meaning of the Charter rights will be determined in light of objectives which are no longer the UK’s objectives, and furthermore, given the dynamic nature of the EU as a polity, these objectives will continue to evolve and change of time. The UK, which will no longer be a member of the EU, will play no part in shaping that evolution. This means that the UK, should it remain bound by the Charter, will be committed to applying a set of norms which it will not be able to play any part in shaping. So the people of the UK will be bound by fundamental legal norms which will be neither by the people, because they are decided by the EU, in light of objectives which the British people will have no role in shaping, nor for the people, because they are done for a project of which the British people are not a part. 

Conclusion

There are real dangers that Brexit will be used as a pretext to conduct an assault on rights protections, and to engage in a race to the bottom. However, I argue that this is not prevented by a commitment to remain bound by the Charter. Once the UK is no longer part of the EU project, and no longer committed to the objectives of EU integration, then it makes no sense to remain bound to an instrument whose raison d’etre is the furthering of those objectives.

Rather, a commitment to protecting rights for a Britain that is no longer a part of the EU must mean a commitment to protecting those rights within, and through the democratic processes of the UK - Including through the Human Rights Act. The EU has played an important role in shaping a developing the culture of rights in the UK. And for human rights lawyers it is of course helpful to have had another forum in which to litigate one’s case - especially one with the enforcement tools at the disposal of the CJEU. So it can be difficult to let go of the Charter. But human rights are not something that were given to the member states by the EU – they were won first through struggles fought within those states’ political communities – they are, in Rancière’s words “inscriptions of the community as free and equal” (J. Rancière, “Who Is the Subject of the Rights of Man?” The South Atlantic Quarterly (2), 297, p. 303.). A commitment to human rights post-Brexit must involve trust in the capacity of the British people to continue to develop and evolve that culture of rights outside the framework of the EU.

Barnard & Peers: chapter 9, chapter 27
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