Tuesday, 8 April 2014

"A total map of everyday life" - Today’s data retention decision: The good, the bad and the ugly

Nothing like a long held cherished cause to bring Matron out of blogging retirement. Although many have already commented on today’s CJEU decision, there is sure to be room for another one. Budge up fellows!

The Good

Where to begin? On a purely substantive level of fundamental rights soundbites, it really doesn’t get better than this. In contrast to the Advocate General’s opinion, delivered at the end of last year, the CJEU does not pussyfoot around the issues:

1. The court has strongly resisted falling into the retention/access trap that the Commission and the member states so carefully laid for it all those years ago. For nigh on a decade privacy campaigners have had to contend with the arguments that the Directive is fundamental rights compliant because it only regulates the retention of personal data. Retention itself, so the story went, is not the bad thing. Access is where the potential infringement of privacy and data protection rights kicks in and that’s all down to the member states. Move on folks, nothing to see here. Not so, says the court. Communications data “as a whole, may allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, the activities carried out and the social environments frequented by them” (para. 27). As a result, both Article 7 and Article 8 of the Charter are fully engaged with regard to retention as well as access, and nearly everything the court says subsequently about infringements of rights and the justification for such infringements (or lack thereof) applies to both. Caspar Bowden’s argument, made in his Duke* article all the way back in 2002 that communications data provides a “near complete map of the private life of an individual” has been fully embraced by the court. Well done Caspar and everyone who made that point over the years.

2. The court has not dodged the Article 8 bullet. Unlike Article 7 (right to private life) of the EU Charter of Fundamental Rights, with which EU constitutional scholars feel reasonable comfortable because we have lots of ECHR case law to draw from, Article 8 (right to data protection) has so far been – shall we say – "underexplored”. Following the Advocate General’s opinion, this was set to continue as the AG simply refused to accept that the right to data protection was engaged here. He DID fall into the retention/access trap and argued that the Article 7 right covered the collection and retention of data while the Article 8 right covered its subsequent use. Since the Directive was not concerned with the latter, Article 8 did not have to be examined. Not so, says the court as it clearly states that “retention also falls within the meaning of Article 8 of the Charter because it constitutes the processing of personal data” (para. 29). Cue response from data protection lawyers all over Europe, “Well, duh!”

3. Both the retention of, and access to, communications data constitute an interference with both Articles 7 and 8 and, yes, that interference is particularly serious because of “the important role played by the protection of personal data in the light of the fundamental right to respect for private life” (para. 48) and the likely impact on individuals’ perception of surveillance. In a paragraph that will surely turn out to be the most quoted in the press, the Court confirms that “the fact that data are retained and subsequently used without the subscriber or registered user being informed is likely to generate in the minds of the persons concerned the feeling that their private lives are the subject of constant surveillance” (para. 37). And apparently that’s not ok.

4. The interference is not proportionate and here’s why:

4.1 Because of the importance of the rights interfered with and because of the particular seriousness of the interference, the EU legislature’s discretion is reduced to start with. Meaning that the EU legislator should have been extra extra careful when adopting the Directive to make sure that it dots all the I’s and crosses all the T’s. Not something that can easily be achieved in what remains the briefest legislative procedure in EU history, you will surely agree, dear reader.

4.2 The fight against terrorism is not the universal trump card it once was. The court makes it clear that while the fight against serious crime, in particular against organized crime and terrorism, is of the utmost importance, it “does not, in itself, justify a retention measure such as that established” in the Directive. No, the court doesn’t use the word “overkill” exactly, but yes, it goes on and on about the way in which the Directive “covers, in a generalized manner, all persons and all means of electronic communication” (para. 57), without any differentiation, limitation or exception being made in the light of its crime-fighting objective; how it “affects, in a comprehensive manner, all persons using electronic communications services, but without the persons whose data are retained being, even indirectly being in a situation which is liable to give rise to criminal prosecutions" (para. 58); that it applies even to persons “whose communications are subject […] to the obligation of professional secrecy” (para. 58); and that it does not provide for any restrictions that would in some way minimize its impact on law abiding members of society, like, for example, a temporal or geographic restriction or a restriction to persons actually suspected of having committed a crime (para. 59). So while the court does not mention the taboo term “data preservation”, this is where to look for its substance.

4.3 The Directive does nothing to clarify the conditions for access to the retained data. This is one the AG was already very unhappy about and we have of course seen where the decision to let the member states roam freely has already led us. Successful constitutional court challenges in several countries and the ludicrous situation in the UK where local councils and other bodies in no way concerned with security and law enforcement were handed broad access rights to retained data that were subsequently abused.

4.4 The retention period provided for in the Directive bears no relation to any kind of considered calculation regarding what was actually necessary. A spectrum ranging from six to 24 months was handed to the member states to play with as their own national political situations allowed.

4.5 There is nothing in the Directive that imposes obligations on the member states or the communications service providers to ensure the ongoing security of the retained data. No prescribed safeguards, no minimum security standards. Zilch! Not good enough, says the courts. Look at all those hackers out there, to say nothing of the NSA. That last one is Matron’s favourite, because the court doesn’t leave it at the security point. Instead it makes it absolutely clear in para. 68 that in its view security may require that the retained data should be held within the EU. Not in the US, not in some piddly cloud server in the middle of the Indian Ocean, no, in the EU! How else, asks the court, can “the control, explicitly required by Article 8(3) of the Charter, by an independent authority of compliance with the requirements of protection and security […] [be] fully ensured”? Matron couldn’t have said it better. So what does that mean for the ongoing discussions around the future of the safe harbor, the EU-US data protection umbrella agreement and the TTIP? And is there any way to give the various PNR Agreements and the SWIFT Agreement the CJEU treatment?

The Bad

Ignoring the essence of Articles 7 and 8

Unnoticed by many, the court has also made a less welcome announcement that neither the retention of, nor the access to, communications data “adversely affect the essence” of Articles 7 and 8. Art. 52(1) of the Charter provides that a law that affects the essence of a Charter right is immediately invalid and can thus not be proportionate. This interpretation is similar to the case law of the German Constitutional Court which applies the so-called “Kernbereichstheorie” (core of the right theory) under which interference with the core of a right can never be justified. In the area of information privacy, it did, for example, hold that the security service’s installation of spyware on an individual’s computer can constitute an interference with the core of the right because the data thus collected could include data concerning the individual’s intimate sphere.

The CFEU’s decision that there is no interference with the essence of the two rights in question seems to be based on the notion that the Directive does not affect the content of the communication but merely the metadata. So here we have one trap the court DID fall into: surveillance of content – bad, surveillance of metadata – not quite so bad. This invalidates a little bit, what it said itself about the importance of communications data in assembling a complete picture of a person’s life. Surely, who an individual communicates with can in some cases be part of that individual’s intimate sphere? Matron is therefore not convinced that the “essence” argument can be so easily resolved.

An invitation to long-term legislative pingpong?

Although the decision includes extensive criticism of the various ways in which the Directive fails to comply with fundamental right obligations, it is actually a bit thin on the ground on the limits within which a fundamental rights compliant law would have to operate. So, for example, the court says that retention periods of six to 24 months are not good enough because there are no criteria for when which period would be proportionate. But it does not say what ballpark period it would like to see as an upper limit for what type of data. In this is differs from the approach of, for example, the German Constitutional Court, which told the German government in no uncertain terms what kind of safeguards would have to be included in a national data retention law before it could pass muster.

Some commenters have remarked that this is a good thing. Former German Federal Data Protection Commissioner, Peter Schaar, for example, tweeted that it was good that the ECJ did not provide a “cookbook” for a revised Directive. The thinking behind that is, of course, that such a cookbook would make it easier for the EU institutions to re-adopt a revised Directive at Warp speed. This way, so the thinking seems to go, the institutions will have to give this some thought. And that will take time. And that’s a good thing for all of us, right?

Matron is not so sure. She can't help thinking that the EU institutions will seek to adopt a revised Directive anyway and without specific guidance from the court, the institutions are once again left alone to be “creative”. There is a real danger that they will come up with a new version that formally ticks many of the boxes mentioned by the court but that substantively would still be found to be an infringement of the Charter rights. So, there is a chance that this kind of uncertainty will open us all up to decades of a game of legislative pingpong between the EU institutions and the CJEU. It's been done before and maybe this is one of the reasons why the German Constitutional Court tends to be so prescriptive.

But this kind of passing the ball to and fro between the legislative and the judiciary is just about doable at national level in a country like Germany where citizens can bring a constitutional challenge as soon as a law is adopted. The Germans got their Constitutional Court decision on the implementing law within 2 years, some other member states were even quicker. But at EU level where it has taken the combined civil society power of 27 (at the time) member states eight years to get the damn thing to a competent court? Is it going to take us another eight years again next time? And the time after that, as they fiddle about with the detail? For Matron this is a bit concerning and it raises all kinds of issues with regard to the enforcement of fundamental rights in multi-level governance systems. On the plus side, her PhD thesis (a labour of Hercules, if ever there was one) just became a hell of a lot more interesting.

The question of trust

With the Charter only in force for a few short years, the CJEU’s case law on fundamental rights enforcement is still in its infancy. This is one of the first, if not THE first, CJEU decision that has roundly declared an EU secondary instrument invalid in its entirety because it violates Charter rights. The way in which CJEU jurisprudence shapes up in this regard is closely watched by the citizens, businesses, governments and national courts of the EU member states. Particularly in countries like Germany, where the Constitutional Court enjoys an immense level of trust by the population, people are worried that the CJEU will not guarantee the same level of protection of fundamental rights as their own court. This is becoming a particularly hot topic with regard to the ongoing discussions about the proposed EU Data Protection Regulation, where the German government (supported – surprisingly – by many civil society campaigners) would like to exempt the data processing activities of public bodies from the scope of the Regulation. The German government may very well have its own sinister reason for proposing this, but the privacy campaigners Matron has spoken to are broadly on board with the idea because including those activities in a directly binding EU instrument would potentially remove them from the Constitutional Court’s competence for judicial review. Questions of fundamental rights compliance of that Regulation (and the measures taken under it) would then have to be decided by the CJEU.

The concern arises partly from the problem of standing. German citizens have a right to challenge an Act of the German Parliament in the form of a constitutional complaint. There is, as yet, no comparable right of EU citizens to challenge an Act adopted by the EU institutions before the CJEU. But this is also a question of whether or not national judges will trust the CJEU to do its job. The German Constitutional Court, for example, is currently operating on the basis of some sort of self-denying ordinance when it comes to reviewing EU law. Under its “Solange II” principle, it will refuse to do so “as long as” (“solange”) it is satisfied, that the CJEU will apply an equivalent fundamental rights standard. This principle has wobbled a fair few times already (data retention being one of those occasions), but remains intact. However, any indication that the CJEU will indeed apply a significantly lower standard than the German Court itself would adopt could act as a trigger to topple “Solange II”. For all their generally pro-European attitude, the Germans have a few sensitivities of their own. The right to informational self-determination is one of them.

... and the downright Ugly

Finally, the one thing the CJEU left entirely open is what will happen now. According to the decision, the Directive is invalid ab initio, i.e. from the date it came into force. This means that in those countries – like Germany – that have not yet implemented the Directive, there is now seemingly no longer a legal obligation to do so.

However, it must be remembered that the Directive itself was adopted as a derogation from a general principle (confidentiality of communications) included in another Directive (Art. 15 of the E-Privacy Directive (2002/58/EC)). This derogation was originally granted to the member states but was then exercised by the EU itself through the adoption of the Data Retention Directive. This means that while the Directive was in force, member states did not have the power to derogate under Art. 15, if only to the extent that the DRD had exercised that power.

So this raises two questions:

1. If the CJEU declares a Directive invalid, what happens to national legislation that has already implemented that Directive? Does it automatically become invalid too or does it have to be repealed? For example, the UK has implemented the Directive through the Data Retention (EC Directive) Regulations 2009. If the invalidity of the Directive does not cause those Regulations to become invalid by extension, is there an obligation on the UK government to repeal them? And if there isn’t, is there at least a way in which UK citizens, CSPs or civil society organisations can ask a UK court to declare the Regulations invalid? Does any of us have standing to do this? Do the courts have the power to make such a declaration?

2. If the EU exercise of a derogation falls by the wayside because the derogating instrument was declared invalid, does this mean that the power to derogate in the area previously covered by the EU instrument reverts back to the member states? In other words, could the UK, being bloody-minded on this point, issue the same legislation again as a national instrument under the derogation contained in Article 15 of the E-Privacy Directive? If it did, would it have to do so within the limits set by the CJEU with regard to compliance with Charter rights? And how does the UK’s opt-out from the Charter play into this? The CJEU has ruled previously that the opt-out negotiated by the UK and Poland does not intend to exempt the UK from the obligation to comply with the provisions of the Charter or to prevent a UK court from ensuring compliance with Charter provisions (see Judgment in Joined Cases C-411/10 N.S. v Secretary of State forthe Home Department and C-493/10 M.E. and Others v Refugee ApplicationsCommissioner, Minister for Justice, Equality and Law Reform). But even though this may be correct with regard to laws implementing EU legislation, does it also apply with regard to national legislation that is not mandated by the EU?

Matron’s Twitter feed is abuzz about this and the last time she looked no consensus had yet been reached. In the meantime, Commissioner Malmstroem, who currently still oversees that part of the Commission responsible for the Data Retention Directive, has already issued her own version of history. In an FAQ document released today, she specifically claims that:

“National legislation needs to be amended only with regard to aspects that become contrary to EU law after a judgment by the European Court of Justice. Furthermore, a finding of invalidity of the Directive does not cancel the ability for Member States under the e-Privacy Directive (2002/58/EC) to oblige retention of data.”**

Put that in your pipe and smoke it, pesky privacy nerds!

So, onwards and upwards it is! No rest for the wicked and all that. At least the upcoming European Parliament elections and Commission rotation will hopefully give all of us a bit of a much-needed breather. But people, this makes it absolutely clear, how important it is that we get the right kind of European Parliament next time round. 

So, in May, please get out and exercise your democratic right to vote. Whatever the weather!

* C Bowden (2002) “"Closed circuit television for inside your head: blanket traffic data retention and the emergency anti-terrorism legislation", Duke Law & Technology Review, p. 5.

** Many thanks to Lexferenda for bringing this to my attention.

Tuesday, 3 September 2013

Leaving the main road for a shortcut? The UK, the ECHR and the exhaustion of domestic remedies

On the day of the 60th Anniversary of the European Convention on Human Rights, a very interesting case landed on Matron’s desk that could have ramifications for UK public authorities in several ongoing cases.
The case in question, Malik v The United Kingdom, concerns a decision by the European Court of Human Rights on whether a complaint by the applicant against treatment he received under Schedule 7 of the Terrorism Act 2000 is admissible despite the fact that the applicant, by his own admission, has not exhausted all formally available domestic remedies. So it is only an admissibility decision, not yet a decision on the lawfulness of Schedule 7 (for more on that see Matron’s recent post), but what an admissibility decision it is.
The case is interesting for UK lawyers for two reasons. First, on the facts it is very similar to the case of David Miranda, journalist Glen Greenwald’s partner, who was detained under Schedule 7 only a few weeks ago, and who is about to take the UK government to court over his own treatment. In the case of Mr Malik, a British citizen, he was detained en route home from the Hajj pilgrimage in Saudi Arabia. He was extensively questioned and searched by Heathrow police and subsequently forced to give DNA samples at a local police station. He was singled out under the Act because he had two passports (having previously been advised by the UK passport authorities to get the second one to make it easier to get a visa to go on the Hajj as he had Israeli stamps on his other passport). 
The Miranda case has of course brought the range of powers available to UK border police under Schedule 7 (and the potential for the abuse of those powers) to the attention of large parts of the public for the first time. As the facts of the cases go, Mr Malik’s detention is slightly different from Mr. Miranda's as there seems to be a clearer intention to detain the former for the purpose of determining whether he was in fact involved in terrorist activities (a point that is still in dispute with regard to David Miranda). Nevertheless, the legal questions are similar in both cases. Are the Schedule 7 powers, which allow the police to detain individuals without the need for reasonable suspicion, too wide to be compatible with Convention rights, in particular Article 5(1) (right to liberty and security of person) and Article 8 ECHR (right to respect for private life)? With the Malik case now in the queue way ahead of Mr Miranda, the good news is that we could see a decision on this issue considerably earlier than we had previously expected. 
However, at least to human rights geeks like Matron, the Malik case is also interesting for another reason, namely the oddity of its admissibility itself. For those not yet aware of this, the road to the European Court is a long and windy one. In order “to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions” (Selmouni v France), Article 35 ECHR normally requires applicants to exhaust all domestic remedies before they can bring their case to Strasbourg. In this case, as the UK government argued in its response to the application, Mr. Malik could arguably have challenged the legality of his treatment by way of judicial review in the High Court. Or alternatively, could have brought a claim for damages in the County Court.
However, as the Court also pointed out in Selmouni, that rule is based on the assumption, reflected in Article 13 ECHR, that there is in fact an effective domestic remedy available in respect of the alleged breach. And it seems to be the question of what constitutes an “effective” remedy that is at issue here. 
The only remedies which Article 35 requires the applicant to exhaust are those that relate to the breaches of Convention rights he alleges and that are, at the same time, both available and sufficient. The “existence of those remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness” (Selmouni v France).
There is also the question of the burden of proof in this context. If the government claims that a claim should be declared inadmissible for non-exhaustion, it must prove that that the domestic remedy to which it refers the applicant was an effective one “available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success”.
The problem in the Malik case seemed to be that although Mr Malik could in fact have sought the remedies proffered by the Government (judicial review of the Heathrow police's actions in the High Court or damages in the County Court) neither of those two remedies were likely to provide him with any relief. 
Starting with the claim for damages, this was unlikely to be successful as the UK border police had arguably acted within the powers granted to them by primary legislation. In any case, Mr Malik’s claim in this case was specifically NOT that the police had exceeded the remit of its powers under Schedule 7, but that those powers themselves were too wide to be compatible with Convention rights. An award of damages was therefore unlikely. 
With regard to the potential High Court challenge, the very much case hangs on the convoluted way in which the UK Parliament, when adopting the Human Rights Act 1998 (HRA), has tried to reconcile the constitutional principle of parliamentary sovereignty with the a right of domestic courts to review the compatibility of acts of public authorities with the ECHR. That legislative compromise, oft criticised but yet to be properly reviewed, goes something like this:

  1. Because of the principle of parliamentary sovereignty (i.e. the fact that no constitutional institution in the UK other than Parliament itself has the right to repeal or declare invalid an Act of Parliament) primary legislation itself cannot be subject to direct judicial review. This is a concept that has always seemed alien to a Kraut like Matron who comes from a system where this – lets face it – very quick and pragmatic way of checking the legislative’s power is the norm.
  1. The HRA does, however, allow the UK courts to review the actions of public authorities other than Parliament for their compatibility with Convention rights. Under section 6 HRA, it is unlawful for a public authority to act in a way which is incompatible with a Convention right; and under section 8 HRA a court “may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate” in relation to any act of a public authority which it finds is unlawful. However, it can only award damages if it has the power to do so (in civil proceedings). Which brings us back to the argument above.
  1. The only other remedy a UK court has at its disposal is the famous “declaration of incompatibility” under section 4 HRA. This means that in the context of a case before it, a court can declare a provision of primary legislation to be incompatible with Convention rights. However, this declaration itself does not affect the validity, continuing operation or enforcement of the relevant provision and – more importantly – such a declaration is not binding on the parties to the proceedings in which it is made. This means that:
  1. the right to decide whether or not to repeal the offending provision remains with the UK Parliament; and
  1. the applicant cannot necessarily claim damages on the basis of that incompatibility.

This compromise has served successive UK governments well as it grants them both wiggle room and the requisite time to get political agreement for changes to primary legislation that the courts deem necessary. To Matron’s knowledge, there are as yet no cases where Parliament has not – eventually – changed the law following a declaration of incompatibility. However, “eventually” is the operative word in this case, as the existing regime at the very least allows for the potential of long legislative delays. And as we all know from the well-known cliché: justice delayed is often justice denied. 
Which seems to be why, in this case - as in the cases of Gillan and Quinton v. the United Kingdom before it (which dealt with equally wide stop and search powers under section 44 of the Terrorism Act) - the UK’s strategy with regard to the HRA seems to have spectacularly backfired because the European Court seems to have declared Malik’s application admissible precisely because the “declaration of incompatibility” remedy has no binding effect. Without it having such effect (and based on the requirements relating to the burden of proof the UK government would have needed to argue that it had that effect – which it didn’t for obvious political reasons) the remedy was not an effective one as far as the applicant was concerned. As a result the European Court did not consider the exhaustion of that remedy necessary for the application before it to be admissible.
Given the number of surveillance cases currently before the UK courts that challenge the compatibility of UK primary law with Convention rights, this decision could therefore have considerable impact. Could this mean, for example, that the case brought by Privacy International with regard to the provisions in the Regulation of Investigatory Powers Act 2000 on which the TEMPORA interceptions are based could be fast-tracked straight to the European Court? Again, the real issue at stake in that case does not concern the actions of the UK security services, which are likely to have acted well within the wide-ranging powers that RIPA grants,  but the compatibility of the relevant RIPA provisions with Convention rights. Given that it will be nigh on impossible to prove that any particular individual has suffered damages from those interceptions, that remedy seems to Matron not to be an effective one in that case as well. Given further the track record of the Investigatory Powers Tribunal before which the case had to be brought (the number of claims upheld is roughly equal to the number of Pandas in Scotland), can it really be said that applicants should be required to spend time and money on going through domestic motions that are  unlikely to grant them the relief they are aiming for? 
And if this is so, what does this mean for the concept of parliamentary sovereignty to which the UK is so wedded? Matron for one will stock up on popcorn.

Thursday, 22 August 2013

Whistleblower's Weltschmerz

The ongoing discussions about whistleblowers was revived yesterday, when Bradley Manning, the US soldier who leaked 250,000 US diplomatic cables and 500,000 army reports to Wikileaks in 2010, was sentenced to 35 years in prison.

While much has been written about the role of whistleblowers, the need for them and the legal protections they should or shouldn’t enjoy, very little has been said about their motivation.  What is it that can make an individual take the kind of risk that may see them spend the rest of their life in jail, or leave behind their partners and their families and any chance of a normal life only to pursue a cause they believe in?

It is a question that, as a German living in an increasingly more authoritarian UK, Matron is beginning to ask herself more and more. Having lived on this island for almost 20 years, it has become here home, many of its people her friends and family. But if she is perfectly honest with herself, it is no longer a country that – were she asked to make the choice today – she would choose to live in.

The almost constant surveillance to which she and millions of other UK residents are now subjected, the often unjust distribution of power that governs the relationship between individuals and the state and which gives the state a considerable advantage, particularly if you do not belong to certain privileged categories, and above all the way in which this is accepted by the majority of the island’s electorate without questioning, whether out of helplessness or because of that little Englander mentality that all too often seems make people immune to any kind of critical thought (see the comments section of pretty much ALL major newspapers), they are all beginning to grate more than they ever did. Make no mistake, this is a very different Britain from the one she entered in 1993.

Despite the fact that certain idiosyncrasies existed even then – suspected IRA terrorists whose voice was not permitted to be heard on public television so that their words had to be spoken by an actor, to name just one – nothing in the way public life was organized back then made her feel so directly affected as is the case today. Is it just that the policemen are getting younger or is there something more?

The surveillance, the police powers, the social inequality, they did not arrive all at once, nor can this necessarily be said to be a linear progress. Things often get better for a while and then they get worse again. But overall it seems to Matron that the direction of travel can no longer be ignored. We are quickly becoming the kind of society where most rules and social norms aim to protect the rights of some at the expense of the rights of others. And where only a dispiritingly small number of people seem to think that there’s anything wrong with that.

It was a step-by-step approach, each step considered in the context of a particular situation, each with a different purpose at heart, each capable of being rationalized and of being viewed almost separately from the other. And each underpinned by that most British of sentiments, that complete confidence in the “gentlemanliness” of the establishment and the resilience of British society, the deep-seated trust, that even expansive powers would never be abused or even used to their full effect and to the detriment of the British people, that “THEY wouldn’t do that”, that "to do that" would be conduct unbecoming on the part of the politicians and policemen and soldiers and diplomats and spies of a nation that had, after all, been instrumental in securing the freedom of all Europeans and the world in two world wars and where nothing that “truly” restricted that freedom would ever be tolerated.

And yet, with each new power and with each piece of evidence that that power will indeed be used to its full extent, if not beyond, Matron has been waiting for those proud British people to resist, to defend the home that was once their castle, to show compassion and to reclaim their right to live in freedom, not fear. Alas, what can be observed is much closer to the syndrome of the frog that, if placed in a pot of boiling water, will jump out but that will happily be cooked to death if the water is heated slowly.

In Germany, they call this kind of approach “salami tactics”, the making of an unpopular  change “slice-by-slice” rather than all at once, and its effect has never been better described than in this “Yes Prime Minister” episode, where a government special advisor explains to James Hacker why spending increasing amounts of money on nuclear deterrents won’t work. Because, you see, by the Prime Minister’s own admission he would only ever “press the button” if he has no choice and the Russians (still the baddies at the time) would never put him in a situation where he has no choice.

It is probably no coincidence that said government advisor speaks with an Austrian accent because unlike the British, German and Austrian citizens have been witness to salami tactics in the most terrible of circumstances. Small changes here, restrictions imposed on the rights of certain population groups there – none in themselves earth-shattering, but together and over time leading to the most destructive and inhumane totalitarian regime ever witnessed. And the answer to the question asked by the children of those who were there to witness those atrocities – “Why did you not prevent this?” “Why did you not do something?” – always being, “What should I have done? When should I have done it? Why me? Why not the others?”

Because to stand up against an increasingly malevolent regime at a time when it is still widely viewed by everyone else as benevolent requires not only guts (described in this recent Guardian column as “the whistleblower’s mad moral courage”) but also the kind of pain threshold with regard to the woes of the world that makes others think you suffer from certain mental health issues.

Because - as Manning’s pathologisation during his trial has shown  and as the author of the Guardian column most succinctly explains - “in every society, democratic or totalitarian, the sensible, grown-up thing to do is to commit to the long haul of sleazy conformity […]What spoils it is the obstinate few who do otherwise – those, absurdly, who actually believe in the necessary fictions; enough to be moved and angered by the difference between what an organisation does in reality and what it says in public.”

Arguably it is this inability to be ok with the fact that “things are the way they are and that there is nothing we can do about it” that drives most whistleblowers. And the feeling that they MUST do something about it - regardless of the cost to them and others - just so they can live with themselves.

So Matron has often asked herself what she would have done, if she had grown up in 1930s Germany. And she is now asking herself what it would be like if this era ended up in the history books as "2010s Britain". What would have to happen for her to leave the UK behind once and for all (she is not yet so far as to consider the kind of resistance that might earn her - at the time that resistance is exercised - the label "terrorist"). There are certain red lines – the UK leaving the EU or abandoning the European Convention on Human Rights – but those lines are arbitrary, whose those and not others, and she doesn’t really believe that any UK government will realistically cross them in a hurry. Like James Hacker, it is unlikely that she and others will ever be put in a situation where “we have no choice”.

And what about in the meantime? What about the poor being vilified as scroungers and immigrants being asked to “go home” and interception of everyone's communication and detention without trial and rendition and wars that are found to violate international law and journalists’ boyfriends being detained and searched at UK airports under anti-terrorism powers on the flimsiest of pretenses? What is she doing about those situations where real people are already suffering other than signing petitions and writing blog posts and joining the odd protest? And what would she have done in Manning’s or in Snowden’s shoes?

The kind of Weltschmerz that may very well be part of many whistleblowers' motivation is something that, at some level, a lot of people share.  It causes some to act (often against their own best interest) and others merely to suffer. It is often rather cynically called "bleeding heart liberalism". But at its most extreme it is probably better described as it is in a play, The radicalization of Bradley Manning, that is currently on show at the Edinburgh Fringe:

“The world can’t be like this or I can’t be in it.”

Tuesday, 20 August 2013

Living in an age of confusion: David Miranda and the concept of "lawfulness"

Like many privacy advocates who followed Edward Snowden's revelations about the activities of the US National Security Agency and the UK's GCHQ, matron was shocked by the news that David Miranda, the partner of Guardian journalist Glen Greenwald, who had worked with Snowden was detained for nine hours at London's Heathrow Airport on a flight back from Berlin to Brazil. Having read David Allen Green's excellent analysis of the legality of the detention under the Terrorism Act 2000, Matron, like many of the commenters on his Jack of Kent blog, nevertheless has to disagree with his conclusions.

He argues, probably correctly, that if it cannot be established that the police detained Miranda (under Schedule 7 of the 2000 Act) specifically for the purpose of determining whether he appears to be a terrorist, then the detention itself and all subsequent actions of the police (like the confiscation of his laptop, etc.) were unlawful. Reading the Act, there is very little to argue with that analysis, were it not for the fact that his conclusions inevitably seem to be based on the assumption that it would/should have been obvious to the police that Miranda was NOT a terrorist. Any kind of awareness or subjective view on the part of the detaining officer that there was nothing that Miranda could possibly have done that would fall within the definition of terrorism would immediately turn his detention from a lawful exercise of police power into an unlawful "fishing expedition". But this means that it is the definition of “terrorist” or “terrorism” and the policeman's interpretation of it wherein lies the proverbial rub.

The conjugation of power: I am, you are, he/she/it is a terrorist

As DAG explains, “terrorist” is defined in section 40(1)(b) of the Act as  “a person who…is or has been concerned in the commission, preparation or instigation of acts of terrorism”. So what, you may rightfully ask, constitutes “acts of terrorism”?

To answer THAT question, we have to look at section 1(2) of the Act, which includes a helpful little list. Some of the actions mentioned (for example, actions involving “serious violence against a person”, “serious damage to property” or actions “designed seriously to interfere with or seriously to disrupt an electronic system”) are - on the basis of the facts as we know them – indeed unlikely to apply to Miranda. The police coulda/woulda/shoulda  known that when they detained him. However, with a bit of paranoid imagination of the kind that our security services are so good at incubating in their staff, one could possibly argue that the actions in sub-sections (c) (actions that "endanger a person’s life") or (d) (actions that "create a serious risk to the health or safety of the public or a section of the public") could be engaged. Given the projected self image of the security services and their craving for absolute secrecy, is it really so far fetched that they might genuinely believe that the publication of details about their activities is likely to lead to both? 

That being so, anyone involved in that publication or helping someone involved in that publication (for example, by carrying copies of documents that may themselves disclose information about their activities) could then arguably be considered to fall within the definition of “terrorist”. So, the real problem in the Miranda case may not be that the police has acted "unlawfully" in detaining him, but that the powers under which they detained him are now so wide that, in practice, they may very well allow the detention of just about anyone. Which, in turn, raises the question whether a country that prides itself on being a liberal, democratic state should have granted the police those powers in the first place.

There’s lawful and there’s … lawful

What this shows, once again, is the clear stretch of water that divides our understanding of what is "lawful" (i.e. compatible with primary laws adopted by a country’s Parliament) from what is "constitutional" (i.e. whether those primary laws themselves are compatible with commonly accepted fundamental rights principles).

On the basis of current laws a good many things - some of which we may object to - can be "lawful". Indeed - abusing for a moment Matron’s Kraut privilege of invoking Godwin's law at her discretion - much was "lawful" in Nazi Germany.  Much is “lawful” now in the many totalitarian systems all over the world that we Westerners love to criticise.

But many of the laws that make certain actions "lawful" are themselves unlawful - in the sense of them being “unconstitutional” - because they violate one or more of the fundamental rights on which our entire constitutional system and our own perception of ourselves as a civilized society are based. Which means, in essence, that - all things being equal - those laws should never have been adopted by the Parliaments of democratic nations that pride themselves in adhering to the rule of law.

But as we all know, good governments do bad things (not that Matron would want to suggest for a moment that the UK has had a "good government" for some time now, but that’s a whole different bunch of blog posts). We need to remember that, in the immortal words of Matron's very own hero, Albus Dumbledore, "the world isn't divided into good people and death eaters". So while the fact that sometimes an unconstitutional law is adopted and enforced is extremely regrettable, all this shows in the first instance is that one (ONE, but not ALL) of the safeguards (or, in US speak, “checks and balances”) that we have put in place for our protection from the actions of an overbearing state have failed. Fortunately, there are usually other safeguards, or at least there should be. So it is important to see what happens next.

How to change bad laws

Generally, when a law is somewhat questionable, there are two ways to go about changing it: we can challenge it in the courts or we can get Parliament to change it through political action. Experience has shown that it is usually wise to take a two-pronged approach on these things rather than focus on one or the other. So with regard to the political campaign surrounding the Schedule 7 powers Matron would like nothing more than to see every privacy group, human rights organisation, regulator and anyone else who has a stake in this (which pretty much means everybody) to get to grips with the legal aspects of this case (and the legal issues it raises), to raise awareness and to make it impossible for our current shower of career politicians NOT to do something about this.

At the same time, Matron genuinely hopes that David Miranda will challenge his detention in the courts so that a judicial review of the extremely wide powers contained in the Act can determine whether or not they are indeed “necessary in a democratic society” (that element of necessity being the threshold which laws that interfere with the right to privacy have to meet in order to be “constitutional”, see Article 8(2) of the European Convention on Human Rights). This will take time, maybe a lot of time, and although it is easy to get disillusioned by this, we shouldn’t be. The mills of the law may grind exceedingly slowly (and too slow for many of us), but they should not be underestimated in bringing about real change over time, not just in terms of direct change to the law itself but also to the public's perception of what should (ethically) be allowed in a free country and what shouldn’t.

Constant vigilance

What we need to look out for, however, is our continued ability to challenge laws in this way and that is an area where the UK has an abysmal record. Unlike Germany, where a multitude of stakeholders (including regional governments, political parties and individual citizens) have the right directly to challenge the constitutionality of a primary law if they are affected by it, in the UK, the right to judicial review is extremely limited. The doctrine of "Parliamentary Sovereignty", which forms the cornerstone of the UK's constitutional settlement, does not allow for the judicial review of primary legislation (although some limits to that claim were introduced by the Human Rights Act 2000). Instead, a court will usually review the compatibility of primary laws with fundamental rights only when it judicially reviews the compatibility of an executive measure or of secondary legislation with an Act of Parliament. This makes it nigh on impossible to have some laws reviewed in the UK as we have seen, for example, with regard to the legislation implementing the EU’s Data Retention Directive.  Despite the fact that implementing national laws (and in some cases the Directive itself) were declared unconstitutional in several EU member states, in the UK we haven’t even been able to bring a case to court.

What is more, what little right to judicial review we currently possess is under continuous attack from the government on several fronts. In some areas, like planning law, the government has recently halved the period claimants have to make an application from three months to six weeks. In other areas, the government has restricted legal aid for judicial review cases. Taken by themselves, those changes are small and relatively innocuous, but cumulatively they may eventually lead to the erosion of due process and whatever limited powers UK courts have in providing a measure of oversight with regard to Parliament’s activities. Viewed in this way, it is no surprise that the court with the most wide-ranging oversight powers, the European Court of Human Rights in Strasbourg, is so universally loathed by at least one half of the current government, that the latter has engaged in a long-term campaign to discredit both the Court and the Convention it enforces ever since the previous Labour government briefly exercised the courage of its former convictions by adopting the Human Rights Act in 2000.

So what HAS Miranda’s detention taught us about this country? Well, a good many unpleasant things many of us knew already  - namely that our laws include powers that, if used to their full extent, would most probably enable flagrant breaches of human rights - and some things we hoped we would never have to learn in our lifetime - that the bodies we have entrusted with protecting our rights and liberties will indeed use those powers to their full extent even if that results in the inevitable destruction of said rights and liberties. For those of us who had still hoped that some remnants of morality would ensure that “they wouldn’t do that”, the Miranda case - like the grounding of Morales plane in Austria in July - comes as a wake-up call. 

It also proves once and for all the futility of arguing (as many defending the NSA actions have done) that we should concentrate on what public bodies are actually doing now rather than questioning – as lawyers and as citizens - what existing laws could permit them to do if the political climate allows. It is the most intrusive uses of the powers granted by those laws from which our legal system must defend us, not their most benevolent interpretation. 

And above all, some words written more than half a century ago, still ring true today with a terrible clarity:

"We must not confuse dissent from disloyalty. We must remember always, that accusation is not proof, and that conviction depends upon evidence and due process of law. We will not walk in fear, one of another, we will not be driven by fear into an age of unreason. If we dig deep into our history and our doctrine, we will remember we are not descended from fearful men. Not from men who feared to write, to speak, to associate, and to defend causes that were, for the moment, unpopular. This is no time for men [...] to keep silent or for those who approve. We can deny our heritage and our history but we cannot escape responsibility for the result. There is no way for a citizen of the republic to abdicate his responsibilities. As a nation we have come into our full inheritance at a tender age. We proclaim ourselves, as indeed we are, the defenders of freedom wherever it still exists in the world. But we cannot defend freedom abroad by deserting it at home. [...] Cassius was right: the fault, dear Brutus, is not in our stars, but in ourselves."

Edward R. Murrow

Good night and good luck!

Monday, 15 July 2013

Great! More weddings!

As of an hour ago, Stonewall declared victory via its Twitter account on the passage of the Equal Marriage Bill in third reading in the House of Lords. It seems the Bill passed with only minor amendments so that its adoption by the House of Commons followed by the granting of Royal Assent is supposedly but a formality. "You may now put a ring on it", Stonewall tweets excitedly and posts pictures of celebrating supporters and Peers.

There is no denying that an equal right to get married (well as equal as this Bill allows it to get) is a monumental achievement given that it is happening in the lifetime of people whose relationships were criminalised only a few short decades ago. The move is also to be welcomed as it will hopefully end the months-long media hysteria over gay relationships, comparing them with sodomy and the reintroduction of slavery, warning of parents marrying their children and painting pictures of lesbian queens using sperm donors to whom they are not married.

However, as someone who suffers from a severe wedding allergy herself, Matron felt slightly better represented by a tweet by fellow marriage Grinch Jack of Kent who publicly sighed on Twitter, "Great. More weddings". So, for all those who not only celebrate today's outcome, but who are now starting to make preparations for the big day, here's Matron's Top 5 wish list of things to consider before you tie the knot. Remember, with great power, comes great responsibility!

1. Read the small print

The beauty of NOT being able to get married was that gays and lesbians actually had to think about the rights, responsibilities and financial arrangements that make up part of every relationship. Marriage, on the other hand, is a package deal. Unless you take the time to figure out what it is that you are signing up to, maybe you should put off shopping for that meringue. Just turn over the page and start reading. For all the misty-eyed romanticism, marriage is a contract after all. Matron would like to echo said Jack of Kent's call that each party to a marriage should ideally be represented by a lawyer. You wouldn't buy a house without consulting one, why would you get married without speaking to one?

2. Beware the consequences (and think about them now)

Matron, who has been happily in lurve with the same Mrs Matron for nigh on 20 years, has looked at the marriage (well, civil partnership) contract many a time and every time the answer was thanks, but no thanks. Why? For one reason and one reason only, she doesn't ever want to put herself through the trauma of going through a divorce. Well, that's up to her, people will say. Continue on the road to lifelong monogamy and it will never happen, marriage certificate or not. But while that is kind of the plan, in real life, stuff happens. And if the proverbial should ever hit the fan on the domestic bliss front, the emotional fallout will be pretty dire in any event. In Matron's view, there is only one thing that could be worse than having to reassemble your life and retrain as a single woman after years of coupledom and that would be to have to do so under the beady eye of a judge with the power to decide on who keeps the marital home, the cats and the car. As a lesbian couple, the Mrss. Matrons are used to (and capable of) deciding these things for themselves and the application of heterosexual gender normative rules on their relationship, should the worst happen, is at best undesirable, at worst nothing short of Matron's worst nightmare. Katherine Franke's excellent article on the potential for gendering gay divorce should give every trigger-happy gay couple pause for thought.

3. You don't have to do every stupid thing that heterosexual couples do just because you (now) can

Although 90% of Matron's friends responded with kindness and understanding to her medical condition - acute rash and dangerous increase in blood pressure at the thought of having to spend an entire day in the company of people she mostly doesn't know and usually has little in common with - by having small, close-family-only weddings or by not inviting her, Mrs Matron's friends, colleagues and family have mostly not been this considerate. Over the years she has therefore attended her fair share of weddings, got annoyed at pious priests, waited for food to be served before the entire party was too drunk to enjoy it (honestly, a "wedding breakfast" at 4pm? What is that all about?), danced to the most appalling, as well as some quite good, wedding bands, and spend what would probably amount to the cost of a round-the-world trip on dresses and shoes that will hardly ever be worn twice. But the by far worst wedding she ever attended was a gay wedding where the heterosexual format was repeated to the nth degree with almost military precision. Why, oh why, when the whole world of gay alternative entertainment is at your disposal would you try to recreate something that successive generations of feminists and academic scholars have already exposed as sexist, hetero normativist and - lets not forget - BORING AS HELL! Drunken hen parties in slutty outfits at Burlesque Clubs? Sorry, Matron will be washing her hair. A lesbian/gay to straight ratio of 1:10? Big fail! Two proud daddies walking two little girlies in princess dresses down the aisle? Pass the bucket. Come on boys and girls, is that really what we are about now? Show some creativity and bring a little of your real life into this shindig. The best lesbian wedding Matron ever attended took place - unsurprisingly - in Hebden Bridge. Two brides lazily strolling towards the registrar hand in hand. The register signed to the self-deprecating sounds of "Signed, sealed, delivered". A wedding buffet, largely made up of dishes contributed by the assembled friends and family, that catered for every possible dietary need a self-absorbed, navel gazing community can come up with. Do whatever you want, but please don't do it just because the book on wedding planning (£9.99 at WH Smith) says you must. There, fixed that for you.

4. Maybe we can even teach straight couples a thing or two

If anyone asks why she prefers being a lesbian to being straight (been there, done that, shredded the t-shirt), Matron always answers that it is the freedom of the partners to a lesbian/gay relationship to decide for themselves which roles to adopt, which parts to play, which household chores to take on and generally how to organise their life without everything they do being viewed through the prism of whether it complies or rebels against society's view of what a man/woman's role in marriage should be. Matron likes DIY and power tools, knitting, cross-stitch, woodwork, reading and cleaning the bathroom. She doesn't mind ironing but hates hoovering. Brushing the cats is lovely, cleaning the litter tray is a chore. She likes cooking, but Mrs Matron likes it more (and is better at it), so why bother? She mows the lawn and takes care of the flowers while Mrs Matron is responsible for the vegetable garden. With the exception of the tomato plants that have historically been Matron's domain.

How did these arrangements come into being? Through almost two decades of discussions, domestic arguments, trial and errors, and general convenience until each did the things she liked best and minded least with the things that both loved and hated shared equally. And at no point was there ever any expectation that one person would "naturally" do one thing but not another. Did it take time and energy to negotiate? Yes! Is it liberating? Very much so. But don't take Matron's word for it, people have done research on this. Read about it in this delightful article in the Atlantic.

5. Don't force your friends to attend

For the record, Matron will NEVER EVER be offended by someone NOT inviting her to their wedding. Scout's honour, pinky swear, hope to die. Being hard pressed to enjoy the idea of spending a day with her own extended family, the family of others offers no additional attraction. Yes, it's your day and you want to share it with people you love. But do you really want to share it with people who most likely hate every minute of it? The fact that they don't want to come to your wedding doesn't mean they don't love you. They do. They are happy for you and even those who have a slight political problem with the institution of marriage will usually not point this out too often (unless you go into bridezilla overdrive, in which case all's fair in love and war!). But they would probably prefer to spend an evening alone with the two of you over a glass of wine afterwards and get the whole thing second-hand. If they are good friends, they won't stop talking to you because you decided to get married (well, mostly they won't). Be a dear and return the favour.