The “Born This Way Fallacy” or Why we shouldn’t feel the need to resort to biological determinism to invoke our human rights

It’s December, it’s been grey outside for weeks and Matron has far too much work to do. What better time to procrastinate on something complete unrelated to the day job?* 

In this case, the plan is to vent on another one of those “gay rights” arguments that periodically come up between Matron’s generation and the next (and the one after, and the one after that) and it’s about the best way to frame the call for recognition of LGBT (QIP… and any other letter in the alphabet that anyone cares to add) rights. It’s about biological determinism and whether we should use our bodies and the alleged immutability of our sexual preferences and desires in the context of legal and policy discussions. It’s been something of a bug bear of Matron’s for a while, so the emergency exits are here, here and here.

For the last few years, and particularly in the context of the equal marriage debate, the case for equality has often been based on the argument that people are “born this way”, that they can’t help who they love and that discrimination on the basis of something that is innate and that they have no control over is inherently unfair. 

Of course, Lady Gaga hasn’t helped matters, although in actual fact, Matron has (almost) no beef with Gaga’s particular take on the statement (beautifully embraced in one of Matron’s favorite Glee numbers ever), which is much more about self acceptance than about what other people think of you in response to whatever deviation from the norm you represent. So, she’s fully on board with the Gaga sentiment:

"Don't hide yourself in regret,  

Just love yourself and you're set, 

I'm on the right track, baby 

I was born this way"

But as Suzanna Danuta Walters explains in some detail in her article "An Incomplete Rainbow", there is a bright red line between self acceptance and asking for acceptance from others, between demanding rights regardless of who you are and asking for tolerance because of who you are. Because rights and equality are things that I should have by virtue of the fact that I am a human being among other human beings. Tolerance is something that is handed out to me by someone who feels that there is something (wrong? abnormal?) about me that they are willing to overlook because they are nice. In that way, the “born this way” argument is a deeply flawed, apologist approach by a community that is begging for crumbs from the table rather than stamping its authority on the rights discussion we are all involved in.

It is an argument that relies in no small way on a certain kind of biological determinism. As Walters highlights:

“[T]he idea that sexual desire and identity are hard-wired (through lavender DNA, or an endocrine system that washes the infant in homo fantasies, or a kinky hypothalamus) reaches into legal arguments, familial conversations, political speeches, Broadway musicals, teen television, movement websites, and, of course, pop songs.”

It is nevertheless a fallacy, for several reasons.

For one, if biology can be used to demand tolerance, it can be used to justify discrimination. As @nigelwUK pointed out to her on Twitter, the old UK headline about the benefits of identifying the “gay gene” was “abortion hope after ‘gay genes’ findings”. As a serving Kraut, this speaks deeply to Matron given the way in which her home country has previously used biological characteristics to “cleanse” the population from all undesirable genetic elements.

But it is also a fallacy because it isn’t true, at least not for all the people all the time, and it is the rights of those people for whom it isn’t true that are sold down the river when queer activists base their campaigns on a “born this way” argument.

Before Matron came out at the tender age of 21, she had had three serious and meaningful relationships and a small number of hook ups with men. There is no regret about those relationships and encounters, including their sexual aspects, and some of those men are still her friends. There was no epiphany at the time about how she was always supposed to be with women and how those previous relationships were a mistake or a failure and there is no general - biologically determined - bar on her possibly hooking up with a man again, should she and the current Mrs Matron ever decide to call it quits.

Nevertheless, Matron calls herself a lesbian, rather than bi-or pansexual, because the right to define her own identity is up to her and because on a day-to-day basis she prefers to be with a woman rather than a man for a host of reasons too complex (and too private for a privacy lawyer) to go into in a blog post. Her lesbian identity is therefore as much a (political) choice as a physical reality. But because she hasn’t been with a man in more than two decades, this truth, which is clear in her own mind, is in constant danger of being subsumed into a “won’t do men, because she can’t do men” narrative in the mind of others. And in the context of a born-this-way based argument that leaves her vulnerable. 

Because if her lesbianism is a choice, she cannot use an immutable biological state of affairs as a reason to call for, say, marriage equality. If she really wanted to, she could get married in ever country on the planet– to a man! She could live the gender-role conformist life most people would expect her to lead and while that might still do untold harm to her sanity, it would not be physically or even emotionally impossible. Which is why, before the gay liberation movement, a multitude of lesbians and gay men through the ages have chosen to do just that, simply to be able to have any kind of life that was acceptable to the societies around them.

And because this is so, less enlightened people in a born-this way world could use this as an argument for why she and others like her should not have the right to be married to a woman. Because she could do different, she could do “better”, she could do right by everyone, she could marry a man.

But Matron doesn’t WANT to marry to a man. Heck, she isn’t even that keen on getting married to a woman, but if marriage was on the agenda, there would currently only be one – decidedly female – person in the frame as a potential partner-in-crime. So what rights do we give someone, who is not “born this way” but has freely chosen her own personal brand of deviancy?

As an old-style 1980’s feminist, Matron can’t help but be frustrated about the way in which we as a community are going backwards on this issue of ethical reasoning, even as we are making significant headway towards a more equal society on a factual level. Of course, Matron is fully aware that there are any number of LGBT people who see their sexuality as fixed and immutable, who do not think that they have a choice in the matter and who cannot see themselves ever falling for someone of their non-preferred gender. And that is fine - for THEM. But it isn’t like that for all of us.

Matron is also aware that people in some quarters (I'm looking at you, crazy religious fundamentalists) will quickly use any admission that sexual orientation/preference/desire may be more fluid to advocate a light course of sexual re-programming or worse. And for those that are subjected to this kind of treatment, the effects are undoubtedly severe. 

But should the answer to this problem really be the establishment of a politically expedient “public truth” about the immutability of sexuality if this truth denies the lived experiences of quite a few members of the LGBT community? Or should we rather argue that the way in which each of us defines ourselves and our identity is a question of personal autonomy and self-determination, and that nobody, NOBODY, has any right to interfere with that autonomy unless the expression of that identity personally harms them (and quite honestly, how could it)?

There was a time when, as a community, we realized that sexuality was a spectrum on which people came down at different points, and not always at the same point during the span of their lifetime. There was an acceptance that things can change, that sexuality is a many splendoured thing and that you can fall in love with the person, not the gender, even while you are using your “deviant” relationship to highlight discrimination and to make the point that the personal is political. Queer campaigning was a much less timid, apologetic, making-nice-with-the-powers-that-be art form than it is now and in Matron’s wistful, old fogey view we were the better for it.

Because rights should be for all of us, regardless of where on that spectrum we reside and whether we tap dance about on it by choice or otherwise.

In other words, I’m not asking you to treat me fairly because I was born this way and can’t help myself being gay. I’m demanding you treat me fairly because I’m a fucking person and you have no reason not to.

*Also, today is the day that equal marriage becomes legal in Scotland for the first time, so this is kind of topical after all.

"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.

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

On the day of the 60^th 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.