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‘The Increasingly Barmy European Court of Human Rights’: The Use of Political Euroscepticism in Human Rights Reform in the United Kingdom

Rachel Bleetman 260719770

Abstract

This thesis explores the use of Political Euroscepticism in British domestic reform in response to adverse rulings by the European Court of Human Rights. Contradictory to what previous research has posited, this paper finds that the use of Euroscepticism by British political elites cannot be predicted or explained by the nature of the topic in question as the reality is far messier. Furthermore, despite assumptions to the contrary, this is not an exclusively Conservative Party tool and is sometimes used by Labour politicians in more covert and subtle ways. Through a process of reform tracing, this paper finds that Euroscepticism is a political tool employed inconsistently by British politicians when faced with calls for reform by the European Court of Human Rights. It is used in three main ways in the British political sphere: To prevent reform in line with the European Court of Human Rights’ rulings altogether; to prevent reform from being fully effective; and to downplay the fact that the impetus for reform came from a European institution. The implications for this creates a problematic environment for human rights in the United Kingdom where human rights reform depends, to a large extent, on the whims of politicians to use Euroscepticism as a reason for non-compliance.

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Contents

Introduction 3

Background to the ECHR in British Law 8

Literature Review 13

Methodology: Issue and Case Selection 19

Tracing Reform: Prisoner Voting 27

Political Relationship: Prisoner Voting 30

Tracing Reform: Widow(er) Benefit Payments 34

Political Relationship: Widow(er) Benefit Payments 36

Tracing Reform: Transgender Rights 40

Political Relationship: Transgender Rights 43

Tracing Reform: Police Surveillance 45

Political Relationship: Police Surveillance 51

Tracing Reform: Retention of DNA of suspects 54

Political Relationship: Retention of DNA of suspects 56

Tracing Reform: Whole Life Orders 59

Political Relationship: Whole Life Orders 63

Tracing Reform: Modern Slavery 65

Political Relationship: Modern Slavery 69

Results 74

Conclusion 75

Bibliography 84

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Introduction

At the end of the Second World War, movements across Europe arose ‘simultaneously and spontaneously’ in response to the threat that the war had posed to fundamental human rights and freedoms.1 On May 5 1949, the member states of the Council of Europe drafted the

Convention for the Protection of Human Rights and Fundamental Freedoms, more commonly known as the European Convention on Human Rights (ECHR).2 The concept of an international system of human rights protection was, at that time, a novel idea and arose as a result of the inadequacy of the ‘traditional concepts of international law and State sovereignty which made the protection of the individual the exclusive prerogative of the State of which he was a national’.3 The horrors of the Second World War demonstrated to these European governments that a single nation-state was no longer a sufficient safeguard of rights and in certain cases, human rights protection may be required against one’s own state.4

In order ‘to ensure the observance of the engagements undertaken by the High Contracting

Parties’, the member states established the European Commission of Human Rights and the

European Court of Human Rights (ECtHR). The Court, set up in 1959, ensures ‘the observance of the engagements undertaken by the Parties to the European Convention on

Human Rights’.5 The Court’s role is both to enforce the Articles and Protocols laid out in the

Convention and to respect the jurisdiction of the nation-state. It is ‘careful to avoid trespassing on what it sees as the function of the national authorities’ but must balance this effort with ensuring that the national authorities are acting in line with protections stipulated

1 Jacobs, F.G (1975). The European Convention on Human Rights. Oxford: Clarendon Press. 1. 2 Ibid. 3 Ibid 3. 4 Ibid. 5 J,G. Merrills (1993). The Development of International Law by the European Court of Human Right. 2nd ed. Manchester: Manchester University Press. 1.

3 R Bleetman in the Convention.6 Most importantly, the ‘Court’s decisions are binding’7 and the responsibility then falls to the State to ensure that the matter is put right. In cases where the

Court finds that the State has violated an Article of the Convention, they can demand that national governments change domestic law in line with their findings.8

Moravcsik argues that the success of this European human rights regime to enforce domestic compliance with their judgements is a result of ‘shaming and coopting domestic law makers, judges and citizens, who then pressure governments for compliance.9 According to

Moravcsik, ‘the EC[t]HR employs a subtle but effective institutional apparatus to promote compliance’ whilst these are not described as ‘overt compliance mechanisms’ they are considered to be highly effective.10 Until 1973, the Court had little effect on the domestic legal order of member states, but as it developed extensive European constitutional case law, a greater knowledge about the system and increased its geographical scope, there has been a growth in both the number of petitions and the admissibility of these cases.11

Once a country ratifies the Convention and accepts recognition of the binding jurisdiction of the Court, they must act accordingly in the case of an adverse judgement. The ability of the

Court to enforce domestic compliance with their rulings is grounded not only in these agreements to accept the ruling but also through the inner workings of national legal and legislative systems.12 Thus, if the national legal and legislative systems are slow or reluctant

6 Ibid 11. 7 Ibid 12. 8 Ibid. 9 Moravcsik, A. (1995). Explaining International Human Rights Regimes: Liberal Theory and Western Europe. European Journal of International Relations. 1 (2), 157-189. 10 Ibid 170. 11 Ibid 171. 12 Moravcsik, A. (1995). Explaining International Human Rights Regimes: Liberal Theory and Western Europe. European Journal of International Relations. 1 (2), 172.

4 R Bleetman to accept and enforce the ruling, the effectiveness of the ECtHR is called into question. The

United Kingdom, one of the first countries to ratify the ECHR domestically, has historically been more sceptical of ‘European encroachment’ on their national sovereignty and have in recent years, become increasingly hostile about the pressure to reform in line with not just

ECtHR rulings, but also other areas of EU law.

This fear of increasing ‘European encroachment’ on British sovereignty has divided the

British political system since the UK joined the European Community in 1972. The entrenchment of the ECHR through the Human Rights Act only served to highlight this problem further and continues to divide both political elites and the general population.

Euroscepticism amongst political elites and the British public has most recently manifested itself in the 23 June 2016 referendum decision to leave the European Union. Whilst there is no requirement for the UK to abandon the European Convention on Human Rights as a result of leaving the EU, it seems more and more likely that this may eventually happen. David

Cameron, when he was Leader of the Opposition in 2006, called to ‘reform or replace’ the

Act with a British Bill of Rights.13 As of August 2016, Justice Secretary Liz Truss ‘confirmed the Human Rights Act will be scrapped to separate the UK from the European courts’.14

The hostility of British political elites to the ECHR leaves British citizens in a precarious situation in which their rights, stipulated by the ECHR and upheld by the ECtHR, can be hindered by the (in)action of their elected representatives. The invocation of Euroscepticism, defined by Forster as, ‘a generic label that defines a negative point of view towards the

13 Fenwick, H, Masterman, R & Phillipson, G (2007). Judicial Reasoning under the UK Human Rights Act. Cambridge: Cambridge University Press. 3-4. 14 The Week. (2016). Human Rights Act will be scrapped, government confirms. Available: http://www.theweek.co.uk/63635/human-rights-act-will-be-scrapped-government-confirms. Last accessed 6th December 2016.

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European Union15, as a reason for non-compliance means political elites can garner resistance towards specific ECtHR mandated reform or water-down proposals. This arguably undermines the very purpose of the ECtHR as a supranational institution. The extent to which this happens has thus far, relied on two main assumptions. The first assumption is that the invocation of Euroscepticism is more likely to come from MPs within the Conservative Party than from within the Labour Party. The second is that, according to existing literature,

Euroscepticism will only appear in certain issues, namely security, crime and value-based issues. These assumptions are further posited on the idea that reform either happened or did not happen and ignores the possibility that reform can be enacted, but can also be made ineffective by the invocation of Euroscepticism as a reason for not being fully compliant.

Thus, when and how are we likely to see Euroscepticism used as a reason for non-compliance in the British political system? Can it be predicted by the party in power? Can the type of issue indicate when it will be used? And what does it mean for human rights protection in the

UK?

By closely examining the process starting from an ECtHR ruling through to the final stages of domestic reform or non-reform, this paper finds that these theories do not adequately explain the relationship between domestic reform and the use of Euroscepticism. Using the cases of

Prisoner voting, widow(er) benefit payments, transgender rights, police surveillance, retention of DNA of suspects, Whole Life Orders and modern slavery, this thesis posits that

Euroscepticism is employed unpredictably and inconsistently to prevent, delay or water-down reform. In addition, although Euroscepticism is most closely related to the Conservative Party, this is not a tool used exclusively by the Conservatives but is also employed, albeit more subtly, by the Labour Party.

15 Forster, A (2002). Euroscepticism in Contemporary British Politics. London and New York: Routledge. 2.

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Furthermore, it is important to note that the HRA raised both the issue of a wider European jurisdiction over British sovereignty and the mere concept of judicial review as two distinct but intertwined issues. Resistance to the ECtHR could arguably therefore come from both resistance to transfer power from Parliament to a court or to transfer power to a European court. Whilst these two issues are conflated, for the purposes of clarity, this research paper will only be focusing on the latter, thus it is Euroscepticism as opposed to the concept of judicial review that I will be focusing on.

This paper proceeds as follows: I will firstly provide a background on the ECHR in British

Law to illustrate how European law is entrenched in the British legal system and what it means for British politics. I will then review the literature to determine what existing scholarship concludes about the use of Political Euroscepticism in the UK’s domestic human rights reform.

Then, I will set out to justify the case and issue selection that I have used to reach my conclusions. Using process tracing, I will then trace the steps taken by the British Government once an adverse ruling has been made. The first part of the process tracing is descriptive, laying out the process that unfolded after the ECtHR ruling and the second part, is more evaluative, looking at the political aspect of the process, namely if and how Political Euroscepticism played a role. Finally, I will offer a conclusion to my findings and highlight the implications of this thesis.

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Background to the ECHR in British Law

The British constitution has long been understood as being unwritten or uncodified and thus the role of the domestic judiciary is fundamentally different to countries who possess written constitutions such as Canada, the United States and Ireland. Bagehot’s classic book on the

English Constitution described the English system of government through its institutions, notably the Cabinet, the Monarchy and Parliament. Furthermore, Jennings’ book on the

British Constitution argued that ‘it is in Parliament that the focus of our liberties must be found’ and these liberties are accepted by the British people because it is the people that put their representatives there.16 The institutions, practices and laws passed by Parliament have long been recognised as the foundations of what Bogdanor called, the Old British constitution. However, as Bogdanor argues, this form of an uncodified constitution based on

Parliament and the Cabinet has undergone significant transformations since the UK joined the European community in 1972.

The 1972 European Communities Act ‘empowered the courts to give effect to EC law’ and in effect, the UK ‘accepted the supremacy of European Law when it passed the 1972 Act.17

However, this apparent supremacy was wrought with problems and disputes from the very start. As Murphy argues, the terms of this so-called contract between the UK Parliament and the EU were unclear to Parliament ‘and so their ‘consent’ to be bound was ill-informed’18 and the subsequent relationship between the UK and EU ‘has been fraught with acrimony’.19 The unwillingness of many British judges and politicians to relinquish legislative and judicial powers to European institutions is best illustrated by their initial reluctance to incorporate the

16 Jennings, I (1966). The British Constitution. 5th ed. Cambridge: Cambridge University Press. 208. 17 Murphy C.C. (2010). Report on the UK and Ireland. In: Martinico, G & Pollicino The National Judicial Treatment of the ECHR and EU Laws. Groningen: Europa Law Publishing 484-485. 18 Ibid 486. 19 Ibid 481.

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ECHR into British domestic law. British legal culture had been sceptical of the idea of incorporating such a Convention into domestic law however it was eventually entrenched in

1998 under Tony Blair’s Labour government.

The New British Constitution, according to Bogdanor’s research, derives from new developments in the UK including the Human Rights Act 1998, devolution legislation and reform of the House of Lords. Bogdanor argues that ‘these reforms have strengthened the case for Britain to follow almost every other democracy by adopting a written or codified constitution’.20 The Human Rights Act 1998 (HRA) is seen by Bogdanor as the ‘cornerstone of the New Constitution’.21 Until the Human Rights Act, the British constitution did not have a specific bill of rights to protect the British people against both the government and

Parliament. Jennings in his 1966 book on the British Constitution even argued, ‘we have no written constitution limiting the power of Parliament’.22 Protections against the ‘tyranny of the majority’ as John Stuart Mill warned, was thus unlimited through this lack of written restrictions on Parliament. Towards the end of the twentieth century the realisation that

British people may need protection against their own Parliament grew in light of arguably draconian laws aimed at fighting the Irish Republican Army (IRA) and Al Qaeda.23 These terrorist campaigns raised the issue of the conflict between freedom and security and the extent to which Parliament could prioritise one over the other.

The Human Rights Act therefore acted as a check on the sovereignty of Parliament as it acts as a Bill of Rights that provides both individual liberties and protection against one’s own

20 Bogdanor, V (2009). The New British Constitution. USA: Hart Publishing. Introduction xiii. 21 Ibid. 22 Jennings, I (1966). The British Constitution. 5th ed. Cambridge: Cambridge University Press. 11. 23 Bogdanor, V (2009). The New British Constitution. USA: Hart Publishing 56.

9 R Bleetman government. Since the act came into force, UK judges now interpret legislation in relation to the European Convention on Human Rights, and Parliament is now no longer the sole guardian of human rights.24 The ECtHR can be therefore seen as an extension of the national system of judicial review to systems such as the United Kingdom who have never fully practiced it. Through this reading of the British system, we can better understand why we see fewer complaints from countries such as Italy and Germany who possess ‘strong constitutional protections and domestic judicial review’.25 The UK therefore has seen a number of cases brought against it as its domestic legal order has ‘no judicial review for fundamental human rights’.26

The Human Rights Act made it ‘unlawful for public bodies to act in a manner incompatible with Convention rights, unless obliged to do so by primary legislation’.27 The Government at the time argued that the HRA would ‘bring rights home’ by enforcing the ECHR conventions into domestic law.28 The Act received a lukewarm reception in the UK particularly from British judges who felt that that British common law and constitutional traditions were sufficient human rights safeguards.29 To prevent further acrimonious feeling towards the European institutions and legal structures, the Human Rights Act ‘allowed judicial review of primary legislation without overriding the supremacy of Parliament’.30 This was ensured in two ways: firstly by allowing British courts to judge on Articles of the Convention without the need to go

24 Ibid 64. 25 Moravcsik, A. (1995). Explaining International Human Rights Regimes: Liberal Theory and Western Europe. European Journal of International Relations. 1 (2), 172. 26 Ibid. 27 Murphy C.C. (2010). Report on the UK and Ireland. In: Martinico, G & Pollicino The National Judicial Treatment of the ECHR and EU Laws. Groningen: Europa Law Publishing. 488. 28 Kavanagh, A (2009). Constitutional Review under the UK Human Rights Act. Cambridge: Cambridge University Press. 5. 29 Fenwick, H, Masterman, R & Phillipson, G (2007). Judicial Reasoning under the UK Human Rights Act. Cambridge: Cambridge University Press. 2. 30 Murphy C.C. (2010). Report on the UK and Ireland. In: Martinico, G & Pollicino The National Judicial Treatment of the ECHR and EU Laws. Groningen: Europa Law Publishing. 491.

10 R Bleetman to the European Court of Human Rights; secondly, in cases where the European Court is required, the judgements are binding but cannot be enforced without Parliament. There is therefore no provision in the Act that makes Strasbourg judgements ‘domestically self- executing’ leaving the UK government and Parliament room to implement the next stages in case of an adverse judgement by the Court. However, this means that ECtHR reform implementation is inherently linked to politics. Hickman emphasised the importance of this relationship between the judicial system and politics as they are ‘allied’ to each other as opposed to being ‘divorced’ from each other.31 The importance of this relationship is even more significant in the case of the UK and the ECHR because the HRA left Parliament its sovereignty to decide the extent to which they would implement reform based on ECtHR judgements.

The effect of the 1998 Human Rights Act on British law has been extensively researched by both political scientists and legal scholars. The general consensus is, in broad terms, that the

HRA redefined British constitutional law and profoundly changed the British judicial system.

In Bogdanor’s terms, it created a ‘new constitution’ by securing the rights set out in the ECHR into British law.32 Not only does the British judicial system now adjudicate in line with the

ECHR but it also requires Ministers to declare that any new legislation is in line with the

Articles laid out in the Convention.33 In addition to fundamentally changing British constitutional law, some scholars argued that the HRA drastically improved it. Leigh argued that ‘English administrative law had, prior to the Human Rights Act, failed to develop effective

31 Hickman, T (2010). Public Law after the Human Rights Act. Oxford: Hart Publishing. 3. 32 Bogdanor, V (2009). The New British Constitution. USA: Hart Publishing. 59. 33 Ibid 68.

11 R Bleetman protection for human rights against incursions by public officials and authorities’.34 Using a selection of British judicial cases, Leigh highlights the changes to judicial reasoning in the UK since the inclusion of the ECHR in British law to conclude that the standard of judicial review has expanded and now ‘appears as a spectrum of different standards applicable to different questions’.35 In a similar fashion, Hickman argues that the ‘Domestic courts have increasingly preferred to resort to the Human Rights Act at the expense of the common law. Human rights principles have, in a sense, become the new common law’36

Thus, the entrenchment of the ECHR into British law, via the Human Rights Act, provided the

British people with a level of human rights protection they did not otherwise have. Derogations from the European Convention, whilst arguably possible due to the lack of legal enforcements available to the European institution, creates a problematic situation for Britons. This section shows how both opponents to human rights reform for substantive policy reasons and opponents to a larger role for the judiciary vis-à-vis Parliament, have recourse to Eurosceptic arguments. This allows such opponents to scapegoat Europe and subsequently frame their substantive policy objections or judicial role objections as objections based on European encroachment. This research cannot disentangle these motives, to the degree that the actors themselves do not.

34 Leigh, I. (2007). The Standard of Judicial Review after the Human Rights Act. In: Fenwick, H, Phillipson, G & Masterman, R Judicial Reasoning under the UK Human Rights Act. Cambridge: Cambridge University Press. 174. 35 Ibid 202-203. 36 Hickman, T (2010). Public Law after the Human Rights Act. Oxford: Hart Publishing. 56.

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Literature Review

This paper deals with two main assumptions made regarding Political Euroscepticism and

British domestic reform. Firstly, that the labelling of the Conservative Party as the more

‘Eurosceptic’ party creates the assumption that they are more likely, or even the only mainstream political party to invoke Political Euroscepticism in preventing reform. Secondly, that the type of issue should indicate the likelihood of Euroscepticism being invoked, namely security, crime and value-based issues. There exists another problem within the literature that

I also sought to address regarding the absence of a discussion surrounding partial or ineffective reform. Research has largely focused on reform as either happening, or not happening, and ignores the middle ground in which reform may occur but is deemed ineffective. Invoking

Euroscepticism therefore, may not always wholly prevent reform from happening, but it may be used to water-down reform or make it less effective. A binary assumption of either reform or non-reform ignores this subtlety and removes the possibility that there may be a correlation between invoking Euroscepticism and preventing fully effective reform. This paper seeks to unpack this to discover how Euroscepticism may relate to ineffective reform.

The main issue in the British political system regarding the relationship between the ECtHR and UK law arguably arises from the presence of ‘Euroscepticism’ that has dominated the

British political space since the UK joined the European Community in 1972. Euroscepticism was not historically just a Conservative Party issue as Forster writes, ‘in the 1960s and 1970s, almost two-thirds of the parliamentary Labour Party were opposed to EC [European

Community] Membership’.37 Additionally, he finds that both major parties since 1970 ‘have started their period of office more positive about European Integration than when they have

37 Forster, A (2002). Euroscepticism in Contemporary British Politics. London and New York: Routledge 130.

13 R Bleetman left office’.38 However, more recently, it was adopted as part of the Conservative Party manifesto in 200139 in which they stated; ‘The guiding principle of the Conservative policy towards the European Union is to be in Europe, but not run by Europe’.40 As the Economist wrote in 2013, ‘Euroscepticism now unites the Party’.41

Whilst the history of Euroscepticism dates back to the 1970s and has affected all sides of the political spectrum, it has become most prominent in 2016 with the Brexit referendum. At the time of Brexit, the concept can largely be attributed to the rise of the United Kingdom

Independence Party and the subsequent adoption of more Eurosceptic policies by the

Conservative Party. Recent ‘Euroscepticism’ can be best highlighted using the declared stances of the MPs in Parliament at the time of the 2016 referendum. According to a BBC report, 138

Conservatives and 10 Labour MPs were planning on voting to leave the EU; compared with

185 Conservatives and 218 Labour MPs who were planning on voting to remain.42 Excluding the MPs that have not declared a position, these figures show that 42.1% of Conservatives and just 4.3% of Labour MPs were in favour of Leave as of June 2016. In addition, six out of the

30 Conservative Cabinet members who declared a stance on the referendum, wanted to leave the EU at the time of the referendum.43

38 Ibid 39 Ibid 143 40 Conservative Party. (2001). 2001 Conservative Party General Election Manifesto. Available: http://www.conservativemanifesto.com/2001/2001-conservative-manifesto.shtml#world. Last accessed 6th December 2016 41 The Economist. (2013). Euroscepticism: A Tory taxonomy. Available: http://www.economist.com/news/britain/21569710-europe-prime-minister-must-placate-five-types- conservative-tory-taxonomy. Last accessed 21st November 2016 42 (This does not include those who have not declared their position). BBC news. (2016). EU vote: Where the cabinet and other MPs stand. Available: http://www.bbc.com/news/uk-politics-eu-referendum-35616946. Last accessed 8th December 2016. 43 Ibid.

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In addition, the Labour and Conservative 2010 and 2015 election manifestos on Europe further highlight the saliency of this political issue for both major parties. In 2010, the Conservative manifesto stated; ‘The steady and unaccountable intrusion of the European Union into almost every aspect of our lives has gone too far’44 and in 2015 the party manifesto declared to ‘reform the workings of the EU, which is too big, too bossy and too bureaucratic.’45 The 2015 manifesto also promised the EU referendum and to scrap the Human Rights Act. In comparison, the

Labour Party manifesto of 2010 claimed that ‘We are proud that Britain is once again a leading player in Europe’ and ‘Sullen resistance and disengagement achieve nothing’.46 In 2015, the

Labour manifesto stated ‘Labour believes that our membership of the European Union is central to our prosperity and security’.47 Hickman warned prior to the results of the 2010 election, that saw a Conservative-Liberal coalition government gain power, that a change in government could have significant implications for the judicial system and could ‘ultimately curtail the role of the courts in protecting human rights’.48 He argued that David Cameron, prior to this election, had promised to repeal the HRA if he won the election and introduce a

British Bill of Rights in its place.49

Whilst I have only covered two of the most recent elections, the recent dichotomy is clear between the Labour and Conservative views on Europe; the Conservatives have presented themselves to be significantly more sceptical of Europe since 2010 and, arguably before that too. However, Euroscepticism along party lines does not offer us with a comprehensive

44 Conservative Party Manifesto 2010. (2010). Invitation to Join the Government of Britain. Available: file:///Users/rachbleetman/Downloads/Manifesto2010%20(1).pdf. Last accessed 8th December 2016. 45 The Conservative Party. (2015). Manifesto 2015. Available: https://www.conservatives.com/manifesto. Last accessed 8th December 2016. 46 The Labour Party. (2010). The Labour Party Manifesto 2010. Available: http://news.bbc.co.uk/2/shared/bsp/hi/pdfs/12_04_10_labour_manifesto.pdf. Last accessed 8th December 2016. 47 The Labour Party. (2015). Labour Party Manifesto 2015. Available: http://www.labour.org.uk/page/- /BritainCanBeBetter-TheLabourPartyManifesto2015.pdf. Last accessed 8th December 2016. 48 Hickman, T (2010). Public Law after the Human Rights Act. Oxford: Hart Publishing. 5 49 Ibid.

15 R Bleetman explanation as to how and when the concept may be invoked. We should expect the

Conservative Party to invoke the concept more often than Labour, but Labour is not immune to Euroscepticism either.

The literature on the conditions under which Euroscepticism is likely to arise pinpoints certain types of issues which may be more prone to these types of arguments. Besson, writing on the reception of the ECHR in the UK and Ireland, found that the ‘UK is among the original Contracting States to the Convention with the highest total of cases brought against it’ and much of the violations arise from issues surrounding Northern Ireland, detention regimes and anti-terrorist measures.50. In terms of domestic remedies, Besson argued that a large number of ECtHR judgement have not, as of writing, been fully implemented ‘due to the delays in the adoption of remedial legislation’.51 In particular, she argues, the UK has

‘dragged its feet on security issues since 2001’. She finds that the UK has largely been ‘slow to deal with the consequences of several judgements relative to security forces’ violence in

Northern Ireland.’52 Moreover, she finds that since 2001, the UK Government has

‘developed hostility’ towards the ECtHR on issues of ‘national security’.53 This argument corresponds to that of Stiles, who finds that the Anti-terrorism Crime and Security Act of

2001 was ‘accompanied by a formal derogation from Article 5 of the Convention, meaning that the State openly admitted it was planning to violate the Convention for the foreseeable future’.54 He therefore argues that in the area of ‘norm dissemination’ between the ECtHR

50 Besson, S. (2009). The Reception Process in Ireland and the United Kingdom. In: Keller, H & Stone Sweet, A Europe of Rights: The Impact of the ECHR on National Legal Systems. Oxford: Oxford Scholarship Online. 64. 51 Ibid 67-68. 52 Ibid. 53 Ibid 89. 54 Stiles, K.W. (2006). The Dissemination of International Liberal Norms: The Case of the ECHR and the UK. Canadian Journal of Political Science. 39 (1),144

16 R Bleetman and the UK, the UK’s ‘policy elites…are willing to set aside Convention restrictions’ regarding issues of terrorism and security.55

Douglas-Scott argued however, that Euroscepticism in the UK has arisen as a result of the increase of EU powers in ‘areas of traditional sovereignty, including criminal law, social policy and moral issues such as same sex marriage or abortion’. This in turn has provoked a

‘value based Euroscepticism’.56 She finds that the ‘perception that the EU, via its fundamental rights policy, unduly interferes in matters where value systems and core domestic preferences on ethical issues are at stake’.57 This type of Euroscepticism she argues, is ‘built on the belief that European integration, should it exist at all, should be a purely economic project, and has no business entering the domain of moral issues’.58 These three authors therefore create a link between the type of issue at hand and the use of Political

Euroscepticism.

Regarding the effectiveness of reform, Article 13 of the ECHR requires domestic remedy in case of an adverse judgement and Section 8 of the UK’s Human Rights Act further stipulates that the Government must find remedies for any breaches of the Convention yet there are still cases where this does not happen. As highlighted by the literature, there are many cases where reform has been swift, effective and fully remedial but there is little known about domestic processes of reform that have either been delayed, watered-down or prevented. For example,

Bogdanor declared in his book on the ‘New British Constitution’ that

55 Ibid. 56 Douglas-Scott, S. (2015). Fundamental Rights, Not Euroscepticism: Why the UK Should Embrace the EU Charter of Fundamental Rights. In: The UK and European Human Rights: A Strained Relationship? Oxford: Hart Publishing. 269. 57 Douglas-Scott, S. (2014). Fundamental Rights Not Euroscepticism: Why the UK Should Embrace the EU Charter. Oxford Legal Studies Research Paper . 82. 19 . 58 Ibid.

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‘At the time of writing [2009] ministers and Parliament have in fact altered every one of those statutes or parts of statutes against which declarations of incompatibility have been issued.’59

He then states that since the HRA came into force in 2000, and his book being published in

2009, 17 declarations of incompatibility have been made, 14 have been remedied, one is undergoing public consultation and two are under consultation for an effective remedy.60

Similarly, Murphy argued that as of June 2008, there had been 25 declarations of incompatibility, of which 15 became final, 12 had been remedied, 2 were in the process of being remedied and one was the subject of public consultation.61 Thus, both Murphy and

Bogdanor argue, in general terms, that up until 2009, reform had been seemingly effective in responding to declarations of incompatibility. However, both authors interpret ‘reform’ as the very act of just passing a law that on face-value, seems to address the problem. They both ignore the length of time that the reform took, the perceived effectiveness of that reform, any later violations of the same Article that followed reform and they only consider a period of 9 years in which there were two Labour Governments.

Additionally, Besson highlights legislative action following adverse ECtHR judgements for example following Christine Goodwin v UK (2002) regarding the rights of Transgender people in the workforce. She finds that the ‘Government immediately committed itself to carrying forward the Court’s judgements’ regarding inadequate protection of Transgender persons. However, these rights took two years to materialise in the form of the Gender

Recognition Act 2004 and the Court condemned the British Government for acting with such

59 Bogdanor, V (2009). The New British Constitution. USA: Hart Publishing. 61. 60 Ibid. 61 Murphy C.C. (2010). Report on the UK and Ireland. In: Martinico, G & Pollicino The National Judicial Treatment of the ECHR and EU Laws. Groningen: Europa Law Publishing 494.

18 R Bleetman delay.62 As I show in my research, the reform also faced significant criticism and the UK faced another violation shortly after it was enacted, owing to the fact that it was not fully effective. Thus, do British politicians use Euroscepticism when they pass ineffective reforms?

Is ‘blaming Europe’ a way of justifying insufficient reform?

In this thesis, I am going to take a comprehensive look at Euroscepticism: looking cross issue and cross party, capturing key policy reform proposals. This has not yet been done in this field as past work has either had a single case focus or focused on a narrow set of issues. I will however, carry out analysis that is both cross-issue and cross-party.

Methodology: Issue and Case Selection

The European Court of Human Rights website publishes all cases that have reached the final level of appeal in Strasbourg. The court receives over 50 000 new applications every year63 yet only around 30 cases are heard in the Chamber or Grand Chamber.64 As the Court states,

‘the great majority of applications lodged with the Court are declared inadmissible’.65

Furthermore, the United Kingdom has a relatively low ‘rate of defeat’ in Strasbourg, for example between 1999 and 2010, less than 2% of cases heard resulted in an adverse judgement.66 Thus, my research only involves the small number of cases concerning the UK that were deemed ‘admissible’ as there is little public information on those that were rejected at the early stages of the process. Since 1975 (when the first UK case was brought to the

62 Besson, S. (2009). The Reception Process in Ireland and the United Kingdom. In: Keller, H & Stone Sweet, A Europe of Rights: The Impact of the ECHR on National Legal System. Oxford: Oxford Scholarship Online. 67. 63 European Court of Human Rights. (2014). The ECHR in 50 Questions. Available: http://www.echr.coe.int/Documents/50Questions_ENG.pdf. Last accessed 5th January 2017. 11. 64 European Court of Human Rights. Your Application to the ECHR. Available: http://www.echr.coe.int/Documents/Your_Application_ENG.pdf. Last accessed 5th January 2017. 7. 65 Ibid 3. 66 Donald, A. (2015). Implementation of ECtHR Judgements against the UK. In: The UK and European Human Rights. Oxford: Hart Publishing. 139.

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ECtHR), there have been 541 cases lodged against the UK that have received judgements in either the Grand Chamber, the Chamber or the Committee.67 (Cases that are judged by the

Committee involve cases that are repetitive or have been covered by well-established case law.) Every case on the ECHR website includes a full case report of the proceedings and some contain comments from assenting or dissenting judges for each case.

I therefore exported the last 500 ECHR cases68 involving the United Kingdom that received a judgement in either the Grand Chamber, Chamber or the Committee. For the data analysis, I only used cases that received a final ruling by the ECtHR after 2 October 2000 as this was the day that the 1998 Human Rights Act came into effect in the UK. I then coded all cases that produced a violation according to which article had been violated in each case. This produced a count sheet of violated articles and allowed me to understand the main problem areas in the

UK. I then explored the issues relating to all cases including a violation to uncover either repetitive problems or in some cases, more serious violations.

Having collated the data from the online ECtHR case reports and having coded the cases by the relevant violations, I could identify repetitive and salient cases purely on a numerical basis; i.e. the number of times an article was violated by the UK. The results are set out in

Figure 1, below.

67 HUDOC. (2016). European Court of Human Rights Database. Available: http://hudoc.echr.coe.int/eng#{"languageisocode":["ENG"],"respondent":["GBR"],"documentcollectionid2":["G RANDCHAMBER","CHAMBER"]}. Last accessed 5th January 2017. 68 This was the website’s export limit.

20 R Bleetman

Number of Article Violations October 2 2000-2017 80

70 67

60

50 45 41 39 40 31 28 30

17 20 14

Number of violations the by Numberviolations uk of 10 3 4 3 0 2 0 2 0 0 0 1 0 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11- 12- 13- 14- 15- 16- A3.1P,A1.1P, 34 ECHR Article

Figure 1: Number of Article Violations October 2 2000-201669

Article 6 (the right to fair trial), in line with other ECHR member states, was violated the

most amount of times by the UK. Article 8 (the right to a private and family life) was also a

significant Article in the count. However, both issues generally, pertain to very specific cases

relating to treatment of an individual under largely unique circumstances. For example, in the

cases of A.A. v UK 20/09/2011, Khan A.W. v. UK 12/01/2010 and Omojudi v. UK

24/11/2009, Article 8 was found to have been violated in relation to the potential deportation

of convicted criminals. Each of these cases relied on information regarding the nature of the

crimes, the individual’s family and personal ties to the UK and their country of origin to

determine whether their deportation would violate their human rights under Article 8.

However, in other circumstances, Article 8 violations highlighted more severe and salient

issues in the UK. For example, Liberty and others v. UK 01/07/2008, Chalkley v. UK

69 3.1 and 1.1 refer to Article 3 of Protocol 1 and Article 1 of Protocol 1 respectively.

21 R Bleetman

12/06/03 and Hewitson v. UK 27/05/03 all relate to issues of covert police surveillance and refer to a specific UK law, the 1985 Interception of Communications Act. In cases like these, the issue at hand requires specific domestic reforms by the UK and has recently, attracted a lot of political and media attention. Thus, it is not necessarily the number of times that Article

8 was violated by the UK that is the most important factor here, but rather the specific content of the cases. In some cases, overarching, national reform may have been an effective remedy as in the case of police surveillance but in other cases, reform would have needed to be a more localised, nuanced form.

In a similar manner, Articles 5 (right to liberty and security) and 6 (right to a fair trial) were often associated with very specific cases relating to specific local authorities, individual mishandling of situations or circumstantial events that distinguished each case from the next.

The repetitiveness of the Article violation therefore highlights serious shortcomings of the

UK’s domestic system to protect these rights but to point to a specific area of reform would be challenging due to the variation in the case backgrounds. For example, Article 6 was violated in relation to a perceived ‘racist’ jury by the accused (Sander v. UK 09/05/00), lack of access to a solicitor during a police interview (Brennan v. UK 16/10/01), and delay in legal proceedings (e.g. Davies v. UK 16/07/02, Somjee 15/10/02 and Foley 22/10/02). Article 5 for example, was violated in relation to a refusal to pay compensation for a wrongful conviction

(Allen v. UK 30/03/10), unlawful immigration detention (J.N v. UK 19/05/16) and treatment of a mental health patient (Hutchison Reid v. UK 20/02/03). Conclusions from these cases could point to the need to perhaps establish better watchdog organisations, domestic judicial review of the legal system, more stringent rules relating to police proceedings or review of the prison system in certain cases. However, the variation in case content and the importance of individuals and specific organisations makes wholescale, national reform difficult to

22 R Bleetman pinpoint. In many of these cases, the applicant won pecuniary or non-pecuniary damages from the UK but the Court did not necessarily demand a specific reform.

Article 14 (protection from discrimination) and Protocol 1 of Article 1 (the right to property) must be considered alongside each other in many of the cases in the UK. 31 out of the 41 cases involving some form of discrimination related to the case of widow payment benefits.

From my research, this issue continued to arise over a period of seven years (2002-2009) and in each case, the circumstances, legal process and outcome were almost identical. The case reports were the shortest in length out of all other cases I had read and essentially served to remind the UK that they had failed to adequately address the issue.

As these examples have shown, the level of reform required for each issue varies significantly between cases and the Articles they concern. Not only does the reform demanded by the ECtHR vary, but also the level of attention the issue is given in the UK domestically. Most of the outcomes of these cases do not make headlines in the UK and receive little political attention in the public sphere. The cases that do receive domestic attention do not necessarily correspond to the number of times an issue has arisen and thus a more in-depth look at these issues and subsequent reform is required.

Therefore, having initially expected to use a pure numerical count of article violations to determine which issues were most salient and repeatedly problematic, I instead used a more qualitative approach for my research. In some situations, the sheer number of violations was the most striking aspect of the problem area but in others, whilst there were fewer cases pertaining to an issue, the issue itself was considered particularly serious by the ECtHR, political actors or media commentators. For example, I found only three cases involving

23 R Bleetman prisoner voting but this issue became particularly salient politically in the UK following the third repetition of the issue in August 2014 with Firth and Others v. UK. Contrastingly, I found 31 cases involving the difference in treatment of men and women in regards to widow(er) benefit payments and yet the issue was almost completely absent from the media or public debate in the UK. To use a purely numerical approach therefore, would distort the weight of the issues at hand and highlight areas that whilst are problematic and repetitive, do not have significant political implications in the UK.

In addition, whilst the Article that was violated most by the UK was Article 6, the right to fair trial (having been violated 67 times), this article is not only just largely absent from political debate and media discussions, but is also the most commonly violated article by all ECHR member states, with over 55% of all cases including an Article 6 violation.70 This does not reduce the severity of the violation but having read all of the UK cases concerning Article 6, it is clear that this issue almost always relates to delays in the judicial process, poor bureaucracy or individual errors by particular authorities and less about national legislation.

The nature of these violations signal that whilst reform is necessary, it is unlikely to come from a change in domestic legislation and more from incremental changes to specialised, local authorities. This therefore, makes the tracing of national political reform very difficult to do.

Having determined the types of issues that had produced a violation by the UK, I then selected certain issues to trace. In selecting the issues to trace, there is clearly some level of subjectivity involved. However, the cases I chose to include cover a wide variety of issues

70 European Court of Human Rights. (2014). The ECHR in 50 Questions. Available: http://www.echr.coe.int/Documents/50Questions_ENG.pdf. Last accessed 5th January 2017. 11.

24 R Bleetman that presented the UK with an issue that needed to be resolved through domestic reform. In some cases, this need to reform was made explicitly by the Court in their final ruling and sometimes this was more implicit. For example, in Firth and Others v. The United Kingdom

12/08/2014 concerning prisoner voting, The Court stated that:

‘[T]he statutory ban on prisoners voting in elections to the European Parliament was, by reason of its blanket character, incompatible with Article 3 of Protocol No. 1 to the Convention. It further indicated that some legislative amendment would be required in order to render the electoral law compatible with the requirements of the Convention.’71

However, in other cases the Court highlighted a problem area that conflicted with the

Convention but did not specifically demand that the Government enact domestic reform. For example, in Hewitson v. The United Kingdom 27/05/2003, concerning police surveillance the

Court found that:

‘[A]t the relevant time there existed no statutory system to regulate the use of covert recording devices by the police. The interferences disclosed by the measures implemented in respect of the applicant were therefore not “in accordance with the law” as required by the second paragraph of Article 8’.72

The need for reform here is therefore implied by the fact that this particular problem area will continue to produce violations unless reform is undertaken yet no specific reform legislation change was made explicit. The reason for this discrepancy in explicit and implicit reform demands usually relates to the concept of the margin of appreciation73 and the Court’s leniency on certain issues that are deemed to be matters that should be decided by nation-

71 European Court of Human Rights. (2014). Firth and Others v. The United Kingdom. Available: http://hudoc.echr.coe.int/eng#{"fulltext":["firth"],"documentcollectionid2":["GRANDCHAMBER","CHAMBE R"],"itemid":["001-146101"]}. Last accessed 14th February 2017. 72 European Court of Human Rights. (2003). Hewitson v. The United Kingdom. Available: http://hudoc.echr.coe.int/eng#{"fulltext":["hewitson"],"documentcollectionid2":["GRANDCHAMBER","CHA MBER"],"itemid":["001-61100"]}. Last accessed 14th February 2017. 73 ‘Broadly speaking [the margin of appreciation] refers to the room for manoeuvre the Strasbourg institutions are prepared to accord national authorities in fulfilling their obligations under the European Convention on Human Rights.’ Greer, S. (2000). The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights. Council of Europe Publishing

25 R Bleetman states. Alternatively, there may be several potential possibilities for reform (as opposed to simply removing a blanket ban on all prisoners to vote for example), and thus the Court will express the need to reform without specifying how to do so.

Thus, having found the issues that clearly showed some level of required reform and having identified broadly what that reform would need to address, I then traced the process of reform starting from the date of the initial judgement (or from the first judgement after the Human

Rights Act became incorporated into British law). I reviewed this process of reform to explore how political parties and political ideologies played a role in the success or failure of such reform. To do so, I traced the political actions that took place immediately after the

ECtHR produced its ruling in terms of for example, parliamentary debates, committees, reports and press releases. I then dissected this process further to evaluate the political aspects of it. For example, what political arguments were used in parliamentary debates? Which parties were in favour of reform and which were opposed? What was the role of the party leader in reform and how did the parties differ? This re-evaluation of the process enabled me to see where, when, if and how Euroscepticism was invoked for political reasons.

This selection process of the issues and cases cannot therefore be random or necessarily objective but it is somewhat limited. Most of these cases did not make headlines in the UK nor did they necessarily appear on the domestic political agenda. I chose cases that had a political process that I could trace and required national reform. Furthermore, a small number of cases refer specifically to domestic law in Scotland or Northern Ireland as opposed to

British law. I am therefore focusing on reform that relates to the UK as a whole, as issues of devolution are outside the scope of this research question. The issues I have therefore looked

26 R Bleetman at are: Prisoner voting, widow(er) benefit payments, transgender rights, police surveillance, retention of DNA of suspects, Whole Life Orders and modern slavery.

Tracing Reform: Prisoner Voting

The UK lost three cases since 2000 regarding the issue of prisoner voting; Hirst 30/03/04,

Greens and M.T 23/11/2010 and Firth and Others 12/07/2014. From the first case in 2004, the ECtHR made it clear that ‘it will be for the United Kingdom Government in due course to implement such measures as it considers appropriate to fulfil its obligation to secure the right to vote in compliance with this judgement’.74 Following the judgement, the House of

Commons produced a report outlining the steps taken by Parliament to reform in line with the

ECtHR ruling. The first consultation on prisoners’ voting rights took place on 2 February

2006 by the former (Labour) Lord Chancellor, Lord Falconer of Thoroton. The Lord

Chancellor in December 2006 announced:

‘The Government are firm in their belief that individuals who have committed an offence serious enough to warrant a term of imprisonment, should not be able to vote while in prison. None the less, we recognise that we must decide how to respond to the Grand Chamber’s judgement’.75

By 2008, the Labour Government proposed options for changing the law with recommendations such as enfranchising prisoners who are serving a smaller sentence, allowing judges to decide individual cases of enfranchisement and ensuring that prisoners serving in Mental Health hospitals would not be able to vote.76

74 European Court of Human Rights. (2004). Hirst v. The United Kingdom. Available: http://hudoc.echr.coe.int/eng#{"fulltext":["hirst"],"languageisocode":["ENG"],"respondent":["GBR"],"documen tcollectionid2":["JUDGMENTS"],"itemid":["001-61680"]}. Last accessed 19th January 2017. 75 House of Commons Library. (2015). Prisoners’ voting rights (2005 to May 2015). Available: file:///Users/rachbleetman/Downloads/SN01764.pdf. Last accessed 19th January 2017. 13. 76 Ibid 16.

27 R Bleetman

A second consultation paper was then published in 2009 by the Labour Government that set out proposals for partial enfranchisement that would then need to be passed by Parliament.

However, the Joint Committee on Human Rights, frustrated by a lack of real progress on the issue, recommended ‘that the Government bring forward a solution as soon as possible’.77

They further highlighted the Governments ‘reluctance to deal with this issue’ and pushed

Ministers to produce more concrete results in terms of meaningful reform. 3 December 2009, the Council of Europe’s Committee of Ministers adopted a resolution calling the British

Government to lift the blanket ban on prisoners’ voting and warned the Government to ensure prisoners could vote in the forthcoming election.78 However, the UK held an election in May 2010 and the blanket ban was still in place. The new Conservative-Liberal Coalition

Government had now gained power and another ECtHR case (Greens and M.T.) had been ruled in favour of prisoner voting.

By 2010, Lord Ramsbotham, a former Chief Inspector of Prisons, criticised the Labour

Government for their inaction, describing the two consultations as a ‘charade’ and called upon the new Government to act.79 However, in November 2010, Prime Minister David

Cameron in Prime Minister’s Questions stated:

‘It makes me physically ill even to contemplate having to give the vote to anyone who is in prison…But we are in a situation that I am afraid we have to deal with…so we have to come forward with proposals’.80

Thus, in December 2010, Minister for Political and Constitutional Reform, Mark Harper, announced that they will ‘act to implement the judgement of the European Court of Human

Rights’ by bringing ‘forward legislation providing that the blanket ban in the existing law

77 Ibid 22. 78 Ibid. 79 Ibid 24. 80 Ibid 25.

28 R Bleetman will be replaced’.81 However, serious offenders serving a custodial sentence of four years or more would still lose the right to vote and no timetable was announced for this proposed legislation.82 In January 2011, proposals for reform met a road block as Conservative MP

Phillip Hollobone secured a Westminster Hall debate on the issue stating that:

‘The British Public do not want prisoners to be given the right to vote…If we have to pull out of the European Convention on human rights, let us consider that and possibly do so. That certainly would have a lot of support in the country’.83

He was supported by several Conservative backbenchers. At the backbench debate on 10

February 2011, several Conservative MPs and Jack Straw, a former senior Labour Cabinet

Minister, motioned that the status quo must remain and the issue should rest with the British democratically-elected lawmakers.84 Former Labour Minister Straw, added that the issue

‘should be left to the UK Parliament’ as the ‘Strasbourg Court is setting itself up as supreme court for Europe with an ever-widening remit’. The motion was agreed by Parliament by a majority of 234 to 22.

The UK was granted a 6-month extension to reform following the Scoppola v. Italy

(22/05/12) case in which the ECtHR ruled that whilst a blanket ban on prisoner voting violated the Convention, states should be awarded a wide margin of appreciation to judge how the violation should be reformed. In Prime Minister’s Questions in 2012, following the approval of Parliament to reject the ECtHR’s ruling, David Cameron stated:

‘The House of Commons has voted against prisoners having the vote. I do not want prisoners to have the vote, and they should not get the vote’.85 22 November 2012, Lord Chancellor,

81 Ibid 26. 82 Ibid. 83 Ibid. 84 Ibid 33. 85 Ibid 42.

29 R Bleetman

Chris Grayling, proposed a draft bill laying out three options; a ban on all prisoners, a ban on prisoners serving more than six months or a ban on prisoners serving more than four years. A cross party Joint Select Committee was established to scrutinise the bill and they subsequently produced a report on 13 December 2013 to give ‘some convicted prisoners voting rights’; namely, ‘all prisoners serving sentence of 12 months or less’.86 The last activity concerning this Bill was in June 2014 when Chris Grayling wrote to the Committee to ensure them that their considerations were being looked at by the Government.87

Political Relationship: Prisoner Voting

There are two main ways to understand how political parties played a role in the (in)action of the British Government and Parliament to reform in line with the ECtHR’s ruling. The first way is to look at the various steps the Ministers responsible for reform took or did not take to push legislation through. The Labour Government immediately after the ruling stated both their reluctance to give prisoners the vote but their commitment to upholding their international obligations to do so. The two consultations prepared by the Labour Government never reached Parliament and were criticised by both the Joint Committee on Human Rights and the Council of Europe for the delays. Juliet Lyon, Director of the Prison Reform Trust expressed concern that the Labour Government was trying to delay the issue until after the

2005 election,88. Thus, from the initial ruling in 2004, the first consultation took place in

2006, a second in 2009 and yet no legislation was put to Parliament by the time Labour left office in May 2010.

86 Ibid 48. 87 Parliament.co.uk. (2014). Draft Voting Eligibility (Prisoners) Bill. Available: http://www.parliament.uk/business/committees/committees-a-z/joint-select/draft-voting-eligibility-prisoners- bill/. Last accessed 19th January 2017. 88 Murray, C. R. G., We Need to Talk: 'Democratic Dialogue' and the Ongoing Saga of Prisoner Disenfranchisement (December 2, 2010). Northern Ireland Legal Quarterly, 2011. Available at SSRN: https://ssrn.com/abstract=1718984. 11

30 R Bleetman

Once the Conservative-Liberal coalition took power in May 2010, they stated ‘a need to change the law’89. However, since Prime Minister’s Cameron comment on how the issue makes him feel sick in November 2010, to May 2015 when the government changed to a majority Conservative government, the only real action was the debate in Parliament to dismiss action on the issue. Importantly, the MP to secure the Parliamentary debate, Mr

David Davis, was a leading Brexit campaigner and is now serving as a Conservative

Secretary of State for Exiting the EU. Since May 2015, the Council of Europe’s Committee of Ministers has twice asked the UK to reform in line with their judgements.90 In December

2015, former Justice Secretary, Michael Gove (Conservative) gave evidence to the House of

Lords Constitution Committee stating:

‘you have a clash between two principles: one the one hand, our desire to respect the judgement of the European Court of Human Rights but, on the other hand, our desire to recognise that, ultimately…parliamentary sovereignty is the essence of our democracy. In having to choose between to two…I err on the side of saying that we must respect the principles of parliamentary sovereignty’.91

A further resolution was subsequently passed by the Council of Europe’s Committee of

Ministers, condemning the UK’s inaction on the issue.92 Furthermore, Parliamentary Under-

Secretary of State for Justice, Dominic Raab provided evidence to the House of Lords on the issue and stated that in line with Parliamentary sovereignty, it is ‘unlikely-or unrealistic-that the ban will be lifted in the foreseeable future’.93

89 House of Commons Library. (2015). Prisoners’ voting rights (2005 to May 2015). Available: file:///Users/rachbleetman/Downloads/SN01764.pdf. Last accessed 19th January 2017. 13. 24. 90 Caird, J.S.. (2016). Prisoners' voting rights: developments since May 2015. Available: file:///Users/rachbleetman/Downloads/CBP-7461.pdf. Last accessed 19th January 2017. 3. 91 Ibid 15. 92 Ibid 17. 93 Ibid 18.

31 R Bleetman

The second way to measure political influence in relation to prisoner voting is to look at the only time the issue was brought to Parliament; On, 11 February 2011, the motion to ignore the ECtHR ruling passed 234 to 22. The 22 MPs who voted against ignoring the ruling (i.e. supported enacted legislation to give prisoners at least some form of the vote) were from a range of parties. However, only one was Conservative whilst nine were Liberal Democrats, seven were Labour, three were from Plaid Cymru, one Independent and one was from the

Green Party. It was clear from the debate that took place that the issue was both about the principle of allowing prisoners to vote and, about the role of the ECtHR in pushing for British domestic reform. This distinction was explicitly made by Mr David Davis MP

(Conservative):

‘The motion before the House about prisoner votes splits cleanly into two parts. First, is the requirement to give prisoners the vote sensible, just, right and proper? Secondly, who should decide? Should it be the European Court of Human Rights, or this House on behalf of the British people?’94

Focussing on the Eurosceptic side of the debate, comments ranged from ‘it was never an issue in the British prison system until the lawyers got hold of it through the European convention on human rights’ (Mr Bernard Jenkin MP, Conservative); ‘these qualifications should therefore be established by this Parliament, not by unelected European institutions that wish to bypass our established laws’ (Mr John Baron MP, Conservative) and; ‘giving votes to any prisoners is quite incomprehensible to our constituents, who sent us here to make the rules and the laws, not to have the European Court make them for us’ (Mr David Evennett

MP, Conservative).95 Former Labour Minister, Jack Straw, spoke out against giving prisoners the vote but emphasised the need to ‘meet our treaty obligations in respect of the

94 Parliament.co.uk. (2011). Voting by Prisoners. Available: http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110210/debtext/110210-0001.htm. Last accessed 19th January 2017. 95 Ibid.

32 R Bleetman

Council of Europe’ and stated that ‘The convention is a fine statement…and I strongly support it’.96 From the Labour bench, Chris Bryant MP spoke out against the ECtHR stating that ‘it is not the role of the European Court of Human Rights to legislate on who gets to vote in the UK’ but he insisted that he will not ‘be joining any wholesale attack on the European

Court of Human Rights’.97

The Labour Party inaction on the issue dated from 2005 to 2010 and covered a period of two different Prime Ministers who never made a public statement on the issue. From Ministerial statements and MPs’ arguments in Parliament, it seems plausible that the lack of action on the part of the Labour government was more linked to do with the principle of not allowing prisoners to vote rather than a resistance to accept European rulings. This is made clear by the leadership of former Minister Jack Straw who makes this distinction in many of his statements on the issue and from the text from the Labour consultations that highlights the need to respect and uphold the judgement even if the Government is against it in principle.

However, regardless of the reasons behind not enacting reform, it still stands to remain that action was not taken to remedy the issue and under Labour leadership, the issue never even reached Parliament for consideration.

Since the Conservatives’ accession to power in 2010, the issue reached Parliament for a debate and reared its head in several Ministerial statements to both the Commons and the

Lords, however the issue has, to date, still not been resolved. The reluctance of the Prime

Minister on principle was made clear in his statements although in a similar fashion to Jack

Straw, this reluctance related more to his beliefs about the rights of prisoners rather than a

96 Ibid. 97 Ibid.

33 R Bleetman disdain for European institutions. However, many of the Conservative MPs who debated the issue and voted in favour of dismissing action, stated clear reasons for doing so based on a reluctance to accept European rulings over domestic sovereignty. Euroscepticism is clearly more prominent and made more explicitly in the arguments presented by Conservative MPs.

Furthermore, the recent Conservative manifesto pledge to scrap the Human Rights Act by

Prime Minister Theresa May, further highlights a clear Conservative reluctance to enact reform in line with ECtHR rulings if there is a clear clash with individual principles on the issue. Some Labour MPs’ also expressed reluctance to give prisoners the vote and this meant they prioritised political principles over the obligation to adhere to the ECtHR’s ruling. This is arguably, a more covert form of Euroscepticism. Whilst expressing support for the institution, they refused to enact European, mandated reform.

Tracing Reform: Widow(er) Benefit Payments

From the data analysis, I found 31 cases of UK violations of the ECHR relating to the payment of benefits to widowers. From Willis v. UK 11/06/02 to Blackgrove v. UK

28/04/2009, all the 31 cases I examined repeated the same reoccurring issue in some of the shortest case reviews I have seen. The shortness in length of the cases illustrates a particularly interesting aspect of these cases; they are so similar in nature that the courts felt no need to reiterate, in detail, all the reasoning and argumentation used in previous cases. The issue at hand relates to men who had lost their wives and had applied to the Benefits Agency for social-security benefits equivalent to those which a widow would apply for if her husband had died. In response, the British Benefits Agency rejected the claim and stated: ‘I am afraid

I can only explain that the Government says that it has no plans to introduce a widowers'

34 R Bleetman pension on the same line as the existing widows' benefits’.98 In defence of this policy, the

Benefits Agency claimed that:

‘the current policy underlying widows' benefits was established at a time when married women rarely worked. It is based on the assumption that women are more likely than men to have been financially dependent on their spouse's earnings and therefore more likely on widowhood to face greater financial hardship’. 99

Despite recognising that this situation had changed considerably since the policy was established, the Agency reaffirmed that ‘women are more likely than men to be in financial need’100 and they stated their reticence to extend this benefit to men in the future. In line with

Article 14 (the right not to be discriminated against) and Article 1 of Protocol 1 (the right to property), the applicants complained that had they been a woman in this situation, they would have been entitled to a widowed mother’s allowance and widow’s payment. However, the

Willis case referred to a death that occurred in 1996 and subsequent claim for benefit payments in the same year. The law in the UK was in fact changed regarding the payment of widows and widowers to correct this discrimination following the November 1999 ECtHR case Crossland v. U.K 09/11/1999101 and from April 2000 the legislation was changed to treat both men and women equally.

The dozens of ECtHR cases that followed this legislative change were retrospective cases but the applicants still won their cases and some also received damages in line with what they were not awarded when their partner died. Thus, the changes occurred over a period of over

20 years from when the first Widows Benefit Allowance was introduced in 1980 to the final

98 European Court of Human Rights. (2002). Willis v. The United Kingdom. Available: http://hudoc.echr.coe.int/eng#{"fulltext":["willis"],"languageisocode":["ENG"],"respondent":["GBR"],"docume ntcollectionid2":["JUDGMENTS"],"itemid":["001-60499"]}. Last accessed 5th February 2017. 99 Ibid. 100 Ibid. 101 House of Commons Library. (2009). Widow's Bereavement Allowance. Available: researchbriefings.files.parliament.uk/documents/SN01478/SN01478.pdf. Last accessed 5th February 2017

35 R Bleetman legislative change in April 2000, fully taking effect in April 2001. The change to domestic legislation in this situation was swift (with the first ECtHR case occurring in 1999 and legislative changes taking place in under 6 months). The Government at the time was a

Labour government under Tony Blair (May 1997 to June 2007). However, despite these reoccurring violations, the law was not changed to help widowers retrospectively.

Political Relationship: Widow(er) Benefit Payments

As Skevik argues in her work on gendered economics and the welfare state, very little changed in the British widows’ benefit system from 1964 to 2001.102 However in April 2001, in light of the current violations of the ECHR, ‘the entire system was made gender-neutral’ and the Widow’s Pension became the Bereavement Allowance.103 The payments were also cut down to 52 weeks in line with the ‘New Labour government’s welfare-to-work strategy’.104 The current change in policy was triggered by the first ECtHR ruling in 1999

(although this was settled out of Court and so does not form part of my data). The charity

TaxAid in September 2000 launched a campaign to lobby the government to change the current gender-discriminatory system and help those who had lost spouses retrospectively in the last six years.105 The Labour Government however stated that it would not introduce legislation to pay widowers retrospectively.

There are therefore two issues to address regarding the political nature of this reform; how important was the influence of this European institution in enacting change so swiftly? And

102 Skevik, A. (2008). Family economy workers or caring mothers? Male breadwinning and Widows' Pensions in Norway and the UK. Feminist Economics. 10 (2), 91-113 103 Ibid. 104 Ibid. 105 House of Commons Library. (2009). Widow's Bereavement Allowance. Available: researchbriefings.files.parliament.uk/documents/SN01478/SN01478.pdf. Last accessed 5th February 2017

36 R Bleetman why, despite many applicants winning pecuniary damages as a result of historic, legal inequalities did the Government not reform to include widowers retrospectively? Firstly, as this issue was beginning to rear its head in the late 1990s, the then Secretary of State for

Social Security, Alistair Darling (Labour) in November 1998 proposed reforms to the House of Commons stating that:

‘First, it is unfair to men: 15,000 husbands bereaved each year get no help at all. That unfairness cannot continue, and it is already being challenged in the European Court of Human Rights - so doing nothing, as some urge, is not an option.’106

He therefore proposed to double the lump sum given to widows and widowers, provide extra help to those on the lowest incomes and replace the Widowed Mother’s Allowance with the

Widowed Parent’s Allowance. In April 2001, this reform was carried forward as the Welfare

Reform and Pensions Act 1999. Politically, it is interesting to note that the House of

Commons report stated, before this reform ‘the Conservative Government ruled out extending the WBA to widowers.’107. Thus, with specific reference to the ECtHR ruling and swift action in direct response to a violation of the ECHR, the Labour Government acknowledged the domestic legislative problems and acted within six months to correct it.

The Crossland case at the ECtHR specifically stated that the ‘bereavement tax allowance will be abolished as from April 2000’108 and the House of Commons report states that the

Government received legal advice as a result of this case to enact domestic change.

However, the reform would not apply retrospectively as the Government stated that ‘the cost of extending widow’s bereavement allowance to men retrospectively who wives died between 1995/6 and 1999/0 could be about £150 million.109 This meant that the 30 ECtHR

106 Ibid 6. 107 Ibid 4. 108 Ibid 9. 109 Ibid.

37 R Bleetman cases that followed the Willis case included some applicants who could claim retrospective pecuniary damage from the Government such as; Thorne v. The United Kingdom 13/01/2009 who received £3000, Fallon v. The United Kingdom 20/11/2007 who received £6280.62 and

Nelson v. The United Kingdom 01/04/2008 who received £20 000. The reason for not including retrospective widowers, according to the Labour Government at the time, related directly to the issue of parliamentary sovereignty and the Human Rights Act. In December

2000, the Government wrote to TaxAid, in response to their pressure on the Government to apply the law retrospectively, that in applying this change in legislation retrospectively would:

‘contradict, unambiguous primary legislation, such as the provisions that govern entitlement to WBA. The Human Rights Act makes it unlawful for a public authority to act in a way that is incompatible with a Convention right unless it is required to do so by primary legislation.110

As Inland Revenue was applying primary legislation of the Income and Corporation Taxes

Act 1988, in which they were to help widows, not widowers, to retrospectively act against domestic legislation would ‘effectively undermine Parliamentary sovereignty which the

Human Rights Act was careful to preserve’.111 The Government even addresses the fact that they may be taken to the ECtHR because of this refusal, but they insist that their refusal does not ‘imply that the Inland Revenue would have lost the case’. Furthermore, in February 2002, the NGO Liberty (the National Council for Civil Liberties) summarised a test case of judicial review of the Government’s refusal to pay widowers retrospectively. They argued as the widows’ tax allowance was abolished in April 2000 but the Human Rights Act only took effect in October 2000, ‘Inland Revenue should honour claims made after October 2000’.112

However, the British Court of Appeal argued that to pay retrospectively would ‘swell the

110 Ibid 10. 111 Ibid. 112 Ibid 11.

38 R Bleetman numbers of those who had received tax allowances’ and ‘the principle of just satisfaction did not require any such payment’.113 This decision was upheld by the House of Lords in May

2005 and in 2006, the ECtHR ruled that in line with the House of Lords, there was ‘no reason to remedy the inequality of treatment by “levelling up”’. Thus, except in certain circumstances, automatic pecuniary damage in respect of retrospective claims was dismissed.

Therefore, as these legal reforms and the landmark ECtHR cases all took place under Tony

Blair’s Labour Government, it is important to look at how the Labour Party primarily handled the need for reform. Arguably, reform was swift and in direct response to the ECtHR ruling and effectively reversed the problematic legislation that had led to an adverse ruling in

Strasbourg. The 2001 reform was considered effective by the ECtHR who stated that as the previous law was in response to “factual inequalities” and the change in women’s position was ‘slowly evolving’, thus the United Kingdom ‘could not be criticised for not having abolished WP earlier’.114 Whilst, the Government faced pressure from Non-Governmental

Organisations on the issue of retrospective payments to widowers, the ECtHR supported the

British Government to a large extent on this issue and did not push for further reform.

The Labour Government used the domestic HRA as a reason for this, as it would directly undermine the HRA provision allowing the government to act in line with primary legislation instead of those laid out by the ECHR. The issues in the 1999 Act such as pension-sharing for divorced couples, stakeholder pension schemes and benefits for widows and widowers were considered by Fulbrook to be ‘relatively non-controversial’.115 From Parliamentary

113 Ibid 12. 114 Cousins, M. (2008). Widow’s Pension and Gender Equality: Runkee v United Kingdom. Journal of Social Security Law. 15 (3), 89. 115 Fulbrook, J. (2001). New Labour’s Welfare Reforms: Anything New?. Modern Law Review. 64 (2), 254.

39 R Bleetman reports and debates, there appears to be no major opposition on the issue of widower benefits from either party. Moreover, the only major reference to European institutions was made by

Labour Minister Darling when he initially presented reform and the issue was largely absent from mainstream media sources. Thus, reform was swift in response to an ECtHR ruling and arguably effective in its purpose but carried some controversies in relation to retrospective payments. The ECtHR in some cases supported the Government’s refusal to pay but in others, demanded compensation whilst never explicitly stating a requirement for them to change this legally. The issue of “encroaching” European power into the UK was, from my research, absent from both parties on this issue, however, inaction based on the HRA by

Labour leaves some questions unanswered. The use of the HRA essentially worked to shirk responsibility to reform by emphasising the importance of British domestic laws over

European demands for reform. This could on the one hand, be seen as a form of a more

‘covert’ Euroscepticism or, it could simply be a tactic to remove the responsibility to pay large sums of money to claimants. The motive is unclear but the inaction certainly poses some questions.

Tracing Reform: Transgender Rights

The Christine Goodwin v. The United Kingdom 11/07/2002 case was a landmark case for

Transgender rights in the UK. The Court found a violation of Article 8 (the right to respect for his/her private life) and Article 12 (the right to marry) regarding the legal status of transgender people in the UK. In making its decision, the Court reviewed the current process of reform in the UK. It found that in April 1999, the (Labour) Home Secretary announced the establishment of an Interdepartmental Working Group on Transsexual People, highlighting a

40 R Bleetman need ‘to consider, with particular reference to birth certificates, the need for appropriate legal measures to address the problems experienced by transsexuals’.116

The Working Group subsequently produced a report in April 2000 highlighting legal change that has already taken place such as the Sex Discrimination Regulations 1999 to prevent discrimination of transgender people and the ability of transgender people to obtain legal documents such as passports and driving licences in their new gender. The Report then recommended three options for reform; leave the situation as it is, issue birth certificates with the new name and gender or grant full legal recognition of the new gender.117 However, at this point, no legislation was enacted through Parliament.

The complications of this issue are multifaceted as they affect multiple areas of domestic law.

Particularly in this case, the applicant was discriminated against in their place of work, were unable to receive a pension at the female retirement age, had their marriage voided as a result of their gender reassignment and was unable to change their birth certificate. Thus, the applicant’s side argued in Court that:

‘despite warnings from the Court as to the importance for keeping under review the need for legal reform the Government had still not taken any constructive steps to address the suffering and distress experienced by the applicant and other post-operative transsexuals.’118

Having assessed both the progress of UK domestic reform and the applicant’s situation regarding Article 8 and Article 12, the court stated that:

‘the situation, as it has evolved, no longer falls within the United Kingdom's margin of appreciation. It will be for the United Kingdom Government in due course to implement such measures as it considers appropriate to fulfil its obligations to secure the applicant's, and

116 European Court of Human Rights. (2002). Christine Goodwin v. The United Kingdom. Available: http://hudoc.echr.coe.int/eng#{"fulltext":["goodwin"],"languageisocode":["ENG"],"respondent":["GBR"],"docu mentcollectionid2":["GRANDCHAMBER","CHAMBER"],"itemid":["001-60596"]}. Last accessed 10th February 2017. 117 Ibid. 118 Ibid.

41 R Bleetman other transsexuals', right to respect for private life and right to marry in compliance with this judgment’. 119

As a result of this case, the UK passed the Gender Recognition Act 2004 (GRA). Jeffreys described this legislation as ‘radical’ as it goes as far as to allow transgender people who have not undergone surgical or hormonal treatment to still gain recognition in their new gender.120 This direct link between the case and the GRA is highlighted by Jeffreys as she writes, ‘The government says that it was necessary to introduce the legislation in order to bring the UK into accordance with European Human Rights Law’.121 However, in 2006,

Grant v. United Kingdom 23/05/2006 the ECtHR ruled against the UK again in violation of

Article 8 regarding the claim that the applicant received a ‘lack of legal recognition of her change of gender’.122 The Court did note however that:

‘While it is true that the Government had to take steps to comply with the judgment in Christine Goodwin, which involved drafting and passing in Parliament new legislation, which they achieved with laudable expedition, it is not the case that this process can be regarded as in any way suspending the applicant’s victim status.’123

The violation in Grant occurred because despite the judgement in the Christine Goodwin case and the subsequent legislative change, the Department for Work and Pensions ‘refused to award the applicant a State pension’ according to her new gender.124 The Government did however state that this was purely due to ‘inevitable difficulties and important repercussions in many major change in the system’.125 Then in 2010, the Equality Act was passed which

‘for the first time gave trans people explicit protection in their own right against

119 Ibid. 120 Jeffreys, S. (2008). They Know It When They See It: The UK Gender Recognition Act 2004. The British Journal of Politics and International Relations. 10 (2), 328. 121 Ibid 331. 122 European Court of Human Rights. (2006). Grant v. The United Kingdom. Available: http://hudoc.echr.coe.int/eng#{"fulltext":["grant"],"languageisocode":["ENG"],"respondent":["GBR"],"docume ntcollectionid2":["GRANDCHAMBER","CHAMBER"],"itemid":["001-75454"]}. Last accessed 10th February 2017. 123 Ibid. 124 Ibid. 125 Ibid.

42 R Bleetman discrimination’.126 Despite these legislative reforms, the Parliamentary Women and

Equalities Commission argue that the GRA is now dated and must remove the over- medicalised approach to transgender patients. They also offer further reform proposals to ensure full transgender rights particularly regarding age limits, spousal consent and NHS services. 127

Political Relationship: Transgender Rights

The legislative reform in the form of the GRA was relatively quick and arguably effective in dealing with the violations laid out in Christine Goodwin v. UK. The political nature of these reforms will be looked at in terms of the process of passing both the GRA and the 2010

Equality Act through Parliament. The Bill was introduced on behalf of the (Labour)

Government by Lord Filkin, the former Parliamentary Under-Secretary of State for the

Department for Constitutional Affairs. He argued to the House of Lords that:

‘the Government support the position of the European Court of Human rights that the remaining controversy over the nature and aetiology of transsexualism must no longer stand in the way of transsexual people enjoying their basic human rights. That is the central and essential position that we take.’128

In support of acting in response to the Christine Goodwin case, Lord Filkin stressed that:

‘The Committee will also know that one reason, although not the sole reason, that this Bill is before us is that the European Court of Human Rights has found that UK law is currently non-compliant.’

The House of Lords passed the Bill 155 to 57 and the main, vocal opposition to the Bill related largely to medical, ethical and cultural issues surrounding being transgender. I was

126 House of Commons: Women and Equalities Commission . (2015). Transgender Equality: First Report Session of 2015-2016. Available: https://www.publications.parliament.uk/pa/cm201516/cmselect/cmwomeq/390/390.pdf. Last accessed 10th February 2017. 23. 127 Ibid 79-82. 128 Hansard: Gender Recognition Act. (2004). Official Report of the Grand Committee on the Gender Recognition Bill [H.L.]. Available: http://hansard.millbanksystems.com/grand_committee_report/2004/jan/13/official-report-of-the-grand- committee#S5LV0657P0_20040113_GCR_18. Last accessed 10th February 2017.

43 R Bleetman unable to find any references to Euroscepticism or European ‘encroachment’ in this specific debate. In fact, the Conservative Opposition Spokesperson for the Home Office, Law

Officers, Lord Chancellors Department and Culture Media and Sport stated that:

‘it gives me pleasure to make it clear straight away that in principle—I stress "in principle"— we on these Benches are supportive of the Bill. We believe it is right to confront the issues that it raises, so that changes can be made in the law to bring about great improvements in the lives of Britain's 5,000 transsexuals.’129

The Liberal Democrat Spokesperson for the Lord Chancellor’s Department also expressed support. The Conservative Peers were given a free vote on this specific Bill and thus only two

Peers ‘dissociated themselves from this statement’. 130 Baroness O’Cathain expressed concern that this ‘does not open the floodgates to some ghastly social and cultural situation’ and Lord Tebbit argued that allowing people to change their gender would ‘fly in the face of all biology’.131 Other concerns raised related to the issue of same-sex marriage, religion and linguistic issues of using terms such as ‘gender’ and ‘sex’.

The Bill, whilst not seen as perfect by NGOs and pressure groups, was arguably a significant step in the right direction. As the group Press for Change stated:

‘Thirty-three years after the High Court made us non-people, the end of our legal nightmare is now in sight. The draft Bill is a carefully considered and well-balanced proposal, which will allow transsexual people the same legal status as everyone else in the country – a legal gender which matches our actual gender.’

129 House of Commons Library. (2004). Gender Recognition Bill (HL) (Bill 56 2003/04). Available: http://researchbriefings.parliament.uk/ResearchBriefing/Summary/RP04-15#fullreport. Last accessed 10th February 2017. 22. 130 Ibid. 131 Hansard: Gender Recognition Act. (2004). Official Report of the Grand Committee on the Gender Recognition Bill [H.L.]. Available: http://hansard.millbanksystems.com/grand_committee_report/2004/jan/13/official-report-of-the-grand- committee#S5LV0657P0_20040113_GCR_18. Last accessed 10th February 2017.

44 R Bleetman

Despite issues such as the refusal to accept same-sex marriage, over-medicalisation of the issue and the cost of the recognition process, the Bill was generally hailed as a success. The influential group Liberty also broadly accepted the ‘contents and objectives of the Bill.’132

The 2010 Equality Act came into effect on 1 October 2010, 5 months after the new

Conservative-Liberal Coalition took office. Although, the first and second reading of the Bill occurred under the previous Labour Government. The Bill aimed at protecting people from discrimination on account of their perceived gender. The Act, according to this Government,

‘reflects policy that has been current since the Coalition government was in office’.133 The only change that the new coalition Government made to Labour’s Bill was to remove the requirement of forcing employers to reveal how much they pay women compared with men.134 Thus, similarly to the 2004 GRA, this Bill passed relatively easily through the

Houses of Parliament and any opposition that arose specifically addressed issues of content such as religion and LGBT rights. There was no specific mention to Europe and for transgender rights, this Bill was seen as merely an extension of the GRA and did not necessarily respond to any ECtHR case.

132 House of Commons Library. (2004). Gender Recognition Bill (HL) (Bill 56 2003/04). Available: http://researchbriefings.parliament.uk/ResearchBriefing/Summary/RP04-15#fullreport. Last accessed 10th February 2017. 78. 133 House of Commons: Women and Equalities Commission . (2015). Transgender Equality: First Report Session of 2015-2016. Available: https://www.publications.parliament.uk/pa/cm201516/cmselect/cmwomeq/390/390.pdf. Last accessed 10th February 2017. 25. 134 BBC News. (2010). Coalition to stick with Labour's Equality Act. Available: http://www.bbc.com/news/10496993. Last accessed 10th February 2017.

45 R Bleetman

Tracing Reform: Police Surveillance

The Council of Europe holds that ‘The acquisition, retention, use or disclosure of personal information by the police constitutes an interference with Article 8’.135 An interference with

Article 8 can only be justified on two grounds; if it is in accordance with domestic law and if it is necessary in a democratic society. However, this domestic law must ‘provide sufficient legal regulation to protect against arbitrary interference’ and the law ‘must also meet the tests of accessibility and foreseeability’.136 Furthermore, these laws must go ‘no further than is

“necessary in a democratic society”’.137

The UK failed to adhere to these regulations on, according to my findings, 12 separate occasions since October 2000. The first case, although slightly outside my scope of study as it happened several months before the HRA came into effect, occurred in May 2000. Since that case of Khan v. The United Kingdom 12/05/2000, violations occurred over a 15-year period with the most recent case, R.E v. The United Kingdom 27/10/2015.138 However, the majority of cases that followed Khan v. The United Kingdom involved retrospective cases with violations occurring before reform was enacted. The only exception to this being R.E. v.

The United Kingdom. Similar cases have also occurred such as, Gillan and Quinton v. The

United Kingdom 12/01/2010, S. And Marper v. The United Kingdom 04/12/2008 and Liberty and Others v. United Kingdom 01/07/2008 but they concerned the legality of stop and search powers, the use of personal data by the police and interception of communications by

Intelligence Services respectively. I will thus limit reform tracing to the specific issue of

135 Murdoch, J & Roche, R. (2013). The European Convention on Human Rights and Policing. Available: http://www.coe.int/t/dgi/hr-natimplement/Source/documentation/EuropeanConventionHandbookForPolice.pdf. Last accessed 16th February 2017. 68. 136 Ibid 70. 137 Ibid 72. 138 This case differs slightly from the other cases however, as it addresses firstly both surveillance and interception of communications, and it concerns the Police Service of Northern Ireland. The case refers to specific laws and guidelines in Northern Ireland as opposed to the UK as a whole.

46 R Bleetman police surveillance, most commonly associated with the Police and Criminal Evidence Act

1984 and The Police Act 1997 as well as the non-statutory, 1984 Home Office Guidelines on police surveillance.

The first judgement to be made on this issue after the HRA came into effect was P.G. and

J.H. v. The United Kindom 25/09/01 which produced violations of Article 8 (the right to a private life) and Article 13 (right to an effective remedy). In this case, the applicants argued that under the Guidelines on the Use of Equipment in Police Surveillance Operations issued by the Home Office in 1984, the covert listening devices being used as evidence in their criminal trial should be dismissed. They argued that the use of a covert listening device had not been approved with written confirmation nor was it the last resort as the guidelines required.139 The trial, which included the tapes obtained by surveillance, resulted in their conviction of conspiracy to commit armed robbery with a sentence of 15 years imprisonment.

At the time of trial, the Police Act 1997 provided for a ‘statutory basis for the authorisation of police surveillance operations involving interference with property or wireless telegraphy’.140

Moreover, the Police and Criminal Evidence Act 1984, permitted the courts to disallow evidence if said evidence ‘would have such an adverse effect on the fairness of the proceedings’.141 The applicants argued, that the use of covert listening devices interfered with

Article 8 of the ECHR, the right to respect for his private… life…and his correspondence.

The British government contested that this was a necessary interference for the prevention of crime and ensuring public safety. The ECtHR found that:

139 European Court of Human Rights. (2001). P.G. and J.H. v. The United Kingdom. Available:http://hudoc.echr.coe.int/eng#{"fulltext":["p.g."],"languageisocode":["ENG"],"respondent":["GBR"]," documentcollectionid2":["JUDGMENTS"],"itemid":["001-59665"]}. Last accessed 13th February 2017. 140 Ibid. 141 Ibid.

47 R Bleetman

‘As there was no domestic law regulating the use of covert listening devices at the relevant time…the interference in this case was not “in accordance with the law” as required by Article 8 § 2 of the Convention, and there has therefore been a violation of Article 8 in this regard.’142

Furthermore, the applicants argued that they had ‘no effective remedy in respect of the violations of their rights’ in line with the protection laid out by Article 13 of the ECHR. They specifically noted that the Police and Criminal Evidence Act and the Police Complaints

Authority did not provide sufficient protection against abuse by the State. The ECtHR in this regard found that:

‘[T]he system of investigation of complaints does not meet the requisite standards of independence needed to constitute sufficient protection against the abuse of authority and thus provide an effective remedy within the meaning of Article 13.’143

Subsequent trials such as Taylor-Sabori v. The United Kingdom 22/11/02, Hewitson v. The

United Kingdom 27/05/2003 and Chalkley v. The United Kingdom 12/06/2003 all reference the first case (Khan), and repeat that ‘at the relevant time there existed no statutory system to regulate the use of covert recording devices by the police’.144 The Court also notes how, whilst the Home Office Guidelines provide clear rules on how police surveillance should be conducted, the guidelines are not legally binding.

Therefore, following the first case after the HRA, P.G. and J.H., the Court highlighted both an absence of domestic law to regulate the use of covert listening devices by police and the insufficiency of the domestic system of investigation of complaints to protect against the

142 Ibid. 143 Ibid. 144 European Court of Human Rights. (2003). Chalkley v. The United Kingdom. Available: http://hudoc.echr.coe.int/eng#{"fulltext":["chalkley"],"languageisocode":["ENG"],"respondent":["GBR"],"docu mentcollectionid2":["JUDGMENTS"],"itemid":["001-61135"]}. Last accessed 13th February 2017.

48 R Bleetman abuse of authority.145 As Stiles finds, prior to the Police and Criminal Evidence Act 1984,

‘there was no systematic regulation of phone taps, mail intercepts and surveillance’.146 The

1997 Labour Government under Tony Blair passed the Regulation of Investigatory Powers

Act 2000 (RIPA), ‘to put UK citizens’ rights above those of the police’.147 This act was intended to provide ‘the statutory basis for the authorisation and use of covert surveillance

…and covert intelligence sources…by the intelligence agencies and certain other public authorities’148. As well as providing for ‘the independent judicial oversight of the exercise of the various investigatory powers’.149

The act was not explicitly passed in direct response to previous adverse ECtHR rulings against the UK, but was instead pushed through Parliament before the HRA became law in

October 2000, ‘in order to ensure that law agencies had a framework for covert surveillance that was compliant with the European convention on human rights’.150 RIPA was subsequently referred to in the cases that followed as evidence of the UK government’s attempt to provide better controls on police surveillance.

The Khan case in 2000 also highlighted the need in the UK to establish an independent institution to investigate police complaints. In response, the Independent Police Complaints

145 European Court of Human Rights. (2001). P.G. and J.H. v. The United Kingdom. Available:http://hudoc.echr.coe.int/eng#{"fulltext":["p.g."],"languageisocode":["ENG"],"respondent":["GBR"]," documentcollectionid2":["JUDGMENTS"],"itemid":["001-59665"]}. Last accessed 13th February 2017. 146 Stiles, K.W. (2006). The Dissemination of International Liberal Norms: The Case of the ECHR and the UK. Canadian Journal of Political Science. 39 (1), 143. 147 Ibid. 148 The Intelligence Services Commissioner's Office. (2014). The Regulation of Investigatory Powers Act 2000 (RIPA). Available: http://intelligencecommissioner.com/content.asp?id=11. Last accessed 16th February 2017. 149 Ibid. 150 Guardian: UK civil liberties. (2009). Regulation of Investigatory Powers Act 2000. Available: https://www.theguardian.com/commentisfree/libertycentral/2009/jan/14/regulation-investigatory-powers-act. Last accessed 16th February 2017.

49 R Bleetman

Commission (IPCC) was set up by the Police Reform Act 2002.151 Furthermore, following the latest violation concerning police surveillance in R.E. v. The United Kingdom 27/10/2015, the applicant argued that the use of covert surveillance in client-lawyer consultations violated the ECHR. As a result, the ‘House of Lords criticised the Secretary of State for not having taken any steps to ensure that covert surveillance of legal consultations was not treated as directed surveillance’.152 As a direct consequence:

‘[T]he Regulation of Investigatory Powers (Extension of Authorisation Provisions: Legal Consultations) Order 2010 (“the 2010 Order”) was adopted and on 6 April 2010 a revised Covert Surveillance Code of Practice (“the Revised Code”) came into effect’.

Furthermore, the Protection of Freedoms Act 2012 introduced by the Conservative-Liberal

Government amended the RIPA and included measures such as introducing a ‘code of practice for surveillance camera systems and provides for judicial approval of certain surveillance activities by local authorities’.153 Finally, the Investigatory Powers Act 2016 was passed and was hailed by the Home Office as:

‘[A]s a “landmark Bill which sets out and governs the powers available to the police, security and intelligence agencies to gather and access electronic communications”. It said in a statement that it “brings together and updates existing powers while radically overhauling how they are authorised and overseen.”154

The NGO Liberty has since launched a legal battle against this Act as they argue it allows for:

151 Equality and Human Rights Commission. Response to IPCC Art 2 consultation about investigations into cases involving a death from the Equality and Human Rights Commission. Available: https://www.ipcc.gov.uk/sites/default/files/Documents/deaths_review/Equality%20and%20Human%20Rights% 20Commission.pdf. Last accessed 16th February 2017. 152 European Court of Human Rights. (2015). R.E. v. The United Kingdom. Available: http://hudoc.echr.coe.int/eng#{"fulltext":["R.E."],"languageisocode":["ENG"],"respondent":["GBR"],"documen tcollectionid2":["JUDGMENTS"],"itemid":["001-158159"]}. Last accessed 13th February 2017. 153 Parliament.co.uk. (2012). Protection of Freedoms Act 2012. Available: http://services.parliament.uk/bills/2010-12/protectionoffreedoms.html. Last accessed 16th February 2017. 154 Griffin, A. (2016). Investigatory Powers Bill officially passes into law, giving Britain the 'most extreme spying powers ever seen'. Available: http://www.independent.co.uk/life-style/gadgets-and- tech/news/investigatory-powers-bill-snoopers-charter-passed-royal-assent-spying-surveillance-a7445276.html. Last accessed 16th February 2017.

50 R Bleetman

‘[E]xtreme mass surveillance powers…which lets the state monitor everybody’s web history and email, text and phone records, and hack computers, phones and tablets on an industrial scale’.

They argue that this Act breaches the public’s rights in permitting hacking, interception of communication and acquiring personal information.155

Political Relationship: Police Surveillance

The specific issue of police surveillance must be separated from similar issues that have arisen in the ECtHR and led to subsequent calls for reform in the UK. Surveillance by intelligence agencies, interception of communications and hacking are often part-and-parcel of broad surveillance laws and thus it becomes difficult to isolate this issue. However, in order to do so, I will use the references to domestic law used by the ECtHR in the cases I have discussed to determine which domestic legislation is most relevant. The main areas of reform concerned the establishment of the IPCC as a consequence of the Police Complaints

Authority not being independent enough from the Police, and the enactment of the RIPA to increase controls over police surveillance.

Firstly, the background to the establishment of the IPCC under Labour, in all sources I examined, do not reference a need to reform in line with an ECtHR ruling. Instead, according to Parliamentary records, the IPCC was established in a ‘climate of distrust and lack of public confidence in the police complaints system’ and was the result of:

‘The conclusions of a predecessor Home Affairs Select Committee Inquiry into Police Disciplinary and Complaints Procedure (January 1998) and the Stephen Lawrence Inquiry in 1999, coupled with many years of campaigning by bereaved families, lawyers, complainants,

155 Liberty. (2017). The People vs the Snoopers’ Charter: Liberty launches crowdfunded legal challenge to indiscriminate state spying powers in Investigatory Powers Act. Available: https://www.liberty-human- rights.org.uk/news/press-releases-and-statements/people-vs-snoopers%E2%80%99-charter-liberty-launches- crowdfunded-legal. Last accessed 16th February 2017.

51 R Bleetman police monitoring groups and human rights organisations led to the Police Reform Act 2002, which established the Independent Police Complaints Commission in 2004’156

Similarly, the IPCC’s website states that:

‘Both Lord Scarman’s inquiry into the Brixton riots in 1981 and the Stephen Lawrence inquiry…in 1999 called for the establishment of an independent body.In April 2000, the human rights organisation Liberty issued a study called An independent police complaints commission. Partly in response to these calls, in May 2000 the government carried out a consultation on a new complaints system. It produced a briefing note called, 'Feasibility of an independent system for investigating complaints against the police'. These consultations culminated in the Police Reform Act 2002 which established the IPCC. The IPCC became operational in April 2004’.157

The Home Affairs Select Committee report recommending the establishment of the IPCC does not reference the ECtHR even though the Court in the 2001 P.G and J.H. case specifically stated that the lack of independence of the previous complaints authority constituted a violation of Article 13. Thus, as the Labour Government at the time passed this legislation in line with pressures outside of the ECtHR, with no reference to this case or previous cases, it is very difficult to make a link between the IPCC and the ECtHR. It is also not mentioned in debates surrounding the passing of this Bill.

Secondly, according to a report on UK surveillance powers:

‘RIPA regulates most forms of surveillance and the interception of communications in the UK. It was enacted to update the laws on the interception of communications and brings them in line with technological advances. The RIPA was also enacted in anticipation of the effects of the Human Rights Act 1998…and in response to a number of adverse rulings from the European Court of Human Rights’.158

156 House of Commons Home Affairs Committee (2012-3). Independent Police Complaints Commission. London: The Stationery Office Limited. 111. 157 Independent Police Complaints Commission. History. Available: https://www.ipcc.gov.uk/page/history. Last accessed 16th February 2017. 158 Feikert, C & Doyle, C. (2006). Anti-Terrorism Authority Under the Laws of the United Kingdom and the United States. Available: https://fas.org/sgp/crs/intel/RL33726.pdf. Last accessed 16th February 2017. 14.

52 R Bleetman

The report, intended for US congress, stated that the ECtHR ‘found that the lack of regulation of surveillance activities was in breach of Article 8’.159 Similarly, Reid and Ryder argued that RIPA was enacted to comply with the ECHR and was in fact ‘probably the first legislation to be enacted directly as a result of the incorporation of the European Convention of Human Rights into domestic law’.160 In presenting the second reading of the bill, former

Labour Home Secretary Jack Straw states that this bill will ensure the UK ‘law enforcement and other operations are consistent with the duties imposed on public authorities by the

European convention on human rights and by the Human Rights Act 1998’.161 He also specifically states that this bill follows the trend of similar bills as it is in response to ‘rulings by the European Court of Human Rights’ and will try to ‘put right our existing regime in advance, without the need for individuals to resort to the courts.’162

During the debate on the bill, the main concerns raised by both parties related to the need to remain flexible to technological advances with this new legislation. However, there were some references to Europe and the ECHR. Mr Ian Bruce (Conservative) stated:

‘[U]nder new rules governed by the European Convention on Human Rights. If the regulations are not followed, any prosecution will automatically fail, even if the officers subsequently witness a blatant crime. My right hon… the shadow Home Secretary, said: This is absolutely potty … It shows that all fears about incorporating the European Convention on Human Rights into British law have been proved right”’. 163

Mr Bruce was quoting the Conservative, shadow Home Secretary from a different debate but the intention was to show how some aspects of the ECHR are ‘absolutely potty’. However,

159 Ibid. 160 Reid, A.S & Ryder, N. (201). For Whose Eyes Only? A Critique of the United Kingdom's Regulation of Investigatory Powers Act 2000. Information & Communications Technology Law. 10 (2), 182. 161 House of Commons Library. (2000). Hansard: Regulation of Investigatory Powers Bill. Available: http://hansard.millbanksystems.com/commons/2000/mar/06/regulation-of-investigatory-powers- bill#S6CV0345P0_20000306_HOC_199. Last accessed 16th February 2017. 162 Ibid. 163 Ibid.

53 R Bleetman despite ‘one of the most heavily amended Bills in recent parliamentary history’164, the opposition to the bill did not, for the most part, relate to European ‘encroachment’. Therefore, whilst the Labour Government’s motivation to push through this legislation was a result of the need to reform UK law in line with the ECHR and in response to the Court’s rulings, the debate and opposition to the law did not in general, reference Euroscepticism. At the time of writing however, human rights groups have asked the ECtHR and the European Court of

Justice (ECJ) to rule on recent legislation concerning surveillance. The ECJ recently ruled that the Investigatory Powers Act 2016 broke European law.165

Tracing Reform: Retention of DNA of suspects

The case of S. and Marper v. The United Kingdom 04/12/2008 concerned two individuals who argued that the retention of DNA samples, cellular samples and fingerprints by the police for a crime they were suspected of, but not convicted of, violated Article 8 of the

ECHR. The UK’s Police and Criminal Evidence Act 1984, Data Protection Act 1998 and the

Retention Guidelines for Nominal Records on the Police National Computer 2006 all afforded the police a level of domestic authorisation, under certain circumstances, to retain such samples even once the applicants were acquitted. In response, the Court stated that they were ‘struck by the blanket and indiscriminate nature of the power of retention in England and Wales’.166

The court subsequently ruled that:

164 Whitley, E.A. & Hosein, I. (2001). Doing Politics around Electronic Commerce: Opposing the Regulation of Investigatory Powers Bill. The International Federation for Information Processing. 66 (4), 419. 165 Bowcott, O. (2016). EU's highest court delivers blow to UK snooper's charter. Available: https://www.theguardian.com/law/2016/dec/21/eus-highest-court-delivers-blow-to-uk-snoopers-charter. Last accessed 16th February 2017. 166 European Court of Human Rights. (2008). S. and Marper v. The United Kingdom. Available: http://hudoc.echr.coe.int/eng#{"fulltext":["s. and marper"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"],"itemid":["001-90051"]}. Last accessed 17th February 2017.

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‘[T]he blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences…fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard.…This conclusion obviates the need for the Court to consider the applicants’ criticism regarding the adequacy of certain particular safeguards, such as too broad an access to the personal data concerned and insufficient protection against the misuse or abuse of such data.’167

Following this case, the Labour Government produced the Crime and Security Act 2010 that contained, within Section 14, ‘a more limited framework for the retention of fingerprints and

DNA data’.168 The police would have been able to retain data from adults who had been arrested, but not convicted, for six years and from those non-convicted under 18 for five years. However, Section 14 of the 2010 Act was ‘never brought into force due to the change in Government shortly after the Act received Royal Assent’.169

When the Conservative-Liberal Coalition Government came into power in 2010, they announced intention to legislate in line with the ECtHR’s ruling. Part 1 of the Protection of

Freedoms Bill introduced the reform needed to ensure no future violations of Article 8. The

Protection of Freedoms Act 2012 received Royal Assent on 1 May 2012 which, according to the Government:

‘[I]mplements the commitment in the government’s coalition agreement to reform DNA and fingerprint retention so that only people convicted of an offence will have their fingerprint records and DNA profiles retained indefinitely’170

The Conservative-Liberal legislation reduced the amount of time from six years to three years for anyone charged but not convicted of a ‘recordable qualifying offence’ but removes the

167 Ibid. 168 Beard, J, & Lipscombe S. (2015). Retention of fingerprints and DNA data. Available: file:///Users/rachbleetman/Downloads/SN04049.pdf. Last accessed 17th February 2017. 12. 169 Ibid 13. 170 Gov.UK. (2013). Protection of Freedoms Act 2012: how DNA and fingerprint evidence is protected in law. Available: https://www.gov.uk/government/publications/protection-of-freedoms-act-2012-dna-and- fingerprint-provisions/protection-of-freedoms-act-2012-how-dna-and-fingerprint-evidence-is-protected-in-law. Last accessed 17th February 2017.

55 R Bleetman right to retain DNA and fingerprints for anyone arrested or charged with a minor offence.171

It also allows chief constables to request an extension if fingerprints or DNA are ‘deemed necessary for prevention or detection of crime’.172

The ECtHR did not demand specific lengths of retention or suggest possible options for reform, instead it only condemned the ‘blanket and indiscriminate’ powers to retain DNA of non-convicted persons. Furthermore, the NGO Liberty stated that they welcome:

‘[I]n principle changes to the old blanket retention policy, we remain concern about the numerous exceptions within the Act and the extended retention of DNA of those arrested but not charged or convicted.’173

Political Relationship: Retention of DNA of suspects

Following the initial ECtHR judgment, former Justice Secretary Jack Straw commented:

‘[D]istinctions should be made between the nature of offences for which samples have been taken, and discusses whether they should be time-limited and whether there should be an independent review. Those matters will be considered by…the Home Secretary in consultation across Government. We have an obligation to report initially to the Council of Ministers and the Council of Europe by March.’174

The debate on the issue included concerns by Labour Lord West of Spithead during the

Second reading of the Bill stating that; ‘our proposals are not compatible with the European

Convention, and a retention period of six years is too long.’175 Apart from that comment, no other reference was made by either party to the ECHR or ECtHR. Thus, the bill was

171 Ibid. 172 Ibid. 173 Liberty. DNA retention. Available: https://www.liberty-human-rights.org.uk/human-rights/privacy/dna- retention. Last accessed 17th February 2017. 174 Beard, J, & Lipscombe S. (2015). Retention of fingerprints and DNA data. Available: file:///Users/rachbleetman/Downloads/SN04049.pdf. Last accessed 17th February 2017. 12. 175 House of Commons Library. (2010). Crime and Security Bill: Second Reading. Available: https://www.publications.parliament.uk/pa/ld200910/ldhansrd/text/100329-0007.htm#10032921000080. Last accessed 17th February 2017.

56 R Bleetman presented explicitly in direct relation to the ruling by the Justice Secretary and despite not ever being enacted into law, it passed fairly easily through the parliamentary process.

As the amendment was never enacted due to the change in Government, the Protection of

Freedoms Bill was put to Parliament in 2011 by the Conservative-Liberal Government to bring UK legislation in line with the ECHR. Current Conservative Prime Minister and

Former Home Secretary, Theresa May, presented this bill in March 2011 to Parliament and the first comment made during the second reading was made by Mr William Cash MP

(Conservative) who stated:

‘Does my right hon. Friend accept that however good the intentions may be, one of the great problems with the Bill is that it serially adopts, endorses and puts into British legislation European Court rulings, and that that in itself runs counter to the sentiments expressed only a few weeks ago when the House voted against a ruling by the European Court of Human Rights by 222 votes to 15?’176

In response, Mrs May MP responded, ‘My hon. Friend is right, I am afraid’177 but argued that on the issue of prisoner votes, the ‘Government have made it absolutely clear that we are not happy about having to give prisoners votes and we will be looking to do so in the most minimal way possible’. However, on this issue, ‘storing indefinitely the DNA and fingerprints of more than 1 million innocent people undermines public trust in policing’.178

Furthermore, Mr Edward Leigh MP (Conservative) argued:

‘We have a more and more active and activist judiciary, not just in the Supreme Court and the lower courts but in the European Court of Human Rights. Again, that has a somewhat chilling effect.’179

176 Referring to the motion to prevent a legislative change to give prisoners the vote. House of Commons Library. (2011). Protection of Freedoms Bill: Second Reading. Available: https://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110301/debtext/110301- 0002.htm#11030160000001. Last accessed 17th February 2017. 177 Ibid. 178 Ibid. 179 Ibid.

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However, on a less Eurosceptic note, Mr Rehman Chishti MP (Conservative) asked Chief

Constable Chris Sims in the Public Bill Committee in March 2011:

‘There are real concerns about the decision of the European Court in S. and Marper with regard to the current regime, which was said to be completely inadequate. In the light of that, do you not think that what is proposed in the Bill moves us considerably towards the right way of bringing people to account in the justice process, along with balancing our rights?’180

In October 2011, during the Parliamentary Ways and Means debate, Alan Johnson MP

(Labour) argued:

‘[O]ur job, in accordance with the European Court of Human Rights judgment, was to come up with something that is necessary and proportionate. There has to be a logic to this; we cannot have blanket and indiscriminate retention of DNA.’181

The final mention to the ECtHR and European influence came from Conservative Baroness

Berridge who stated in defence of the Court:

‘At a time when the European Court of Human Rights has come in for quite a drumming, it is sobering to reflect that England and Wales needed to be told by the court that the blanket and indiscriminate retention of genetic material indefinitely of innocent people is a breach of Article 8’. 182

Thus, there is clearly a difference between the intentions of the Labour and Conservative

Governments in presenting their versions of the reform on DNA retention. Both Governments made it clear that this reform was needed to correct the problems highlighted by the S. and

Marper case, but when debating in Parliament, different intentions manifested themselves.

When questioned on the issue of ECtHR ‘encroachment’, Former Home Secretary, Mrs May

MP, agreed that the reform would mean accepting to implement an ECtHR ruling whereas

180 House of Commons Library. (2011). Public Bill Committee. Available: https://www.publications.parliament.uk/pa/cm201011/cmpublic/protection/110322/am/110322s01.htm. Last accessed 17th February 2017. 181 House of Commons Library. (2011). Ways and Means Resolution: Protection of Freedoms Bill. Available: https://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm111010/debtext/111010- 0003.htm#11101040000002. Last accessed 17th February 2017. 182 House of Commons Library. (2011). Protection of Freedoms Bill: Second Reading. Available: https://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/111108-0002.htm#11110878000477. Last accessed 17th February 2017

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Justice Secretary Jack Straw, specifically stated the need to do so in line with the European judgement. Although the debate clearly shows some reluctance by some Conservative MPs, the Government website explaining background to the 2012 Act, clearly states that the reform was enacted due to the S. and Marper ruling. What is clear from both debates and proposed bills, is that both Governments agreed on the need to reform in line with the ruling. In fact, the Conservative-Liberal Government’s final Act went further than the Labour proposal as it reduced the amount of time that DNA could be retained. Thus, despite some anti-European rhetoric from both the Home Secretary and a couple of Conservative MPs, the final Act was arguably more in line with the ECtHR ruling than Labour’s.

Tracing Reform: Whole Life Orders

Vinter and Others v. The United Kingdom 09/07/2013 concerned three applicants who were serving life sentences for murder and had been given ‘whole life orders’. Such orders came into effect with the passing of the Criminal Justice Act 2003 stipulating that having been given a whole life order:

‘[T]he prisoner cannot be released other than at the discretion of the Secretary of State. The power of the Secretary of State to release a prisoner is provided for in section 30(1) of the Crime (Sentences) Act 1997. The Secretary of State will only exercise his discretion on compassionate grounds when the prisoner is terminally ill or seriously incapacitated.’183

Existing life prisoners, in England and Wales, could apply to the High Court for review of their tariffs and with such an application, the High Court could make a Whole Life Order or set a minimum term of imprisonment. The Secretary of State could also impose a whole life order on individual review of a case. The applicants claimed that this order violated Article 3

183 European Court of Human Rights. (2011). Vinter and Others v. The United Kingdom. Available: http://hudoc.echr.coe.int/eng#{"fulltext":["vinter and others"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"],"itemid":["001-122664"]}. Last accessed 20th February 2017.

59 R Bleetman of the Convention (prohibition of torture or to inhuman or degrading treatment or punishment).

At the time of the case in 2011, the Government noted that 4900 prisoners were currently serving mandatory life sentences for murder in England and Wales, 41 of which were currently subject to whole life orders.184 The case report also noted that since 2000, ‘no prisoner serving a whole life term had been released on compassionate grounds’ but as of 30

November 2009, 13 life-sentence prisoners, who did not have whole life orders, had been released on such grounds.185

The issue had been reviewed in several domestic judicial review cases such as R v. Lichniak and R v. Pyrah 2003 and R v. Secretary of State for the Home Department 2001 by the House of Lords and R v. Bieber 2009 by the Court of Appeal. All of which found that the 2003 legislation and imposition of Whole Life Orders did not contravene Article 3 of the ECHR.

However, the ECtHR found that whilst ‘Contracting States must also remain free to impose life sentences on adult offenders for especially serious crimes’186, it is the ‘imposition of an irreducible life sentence’187 which may raise issues with the Convention. In short, it was the absence of the ‘prospect of release and a possibility of review’ that was legally problematic because without the prospect of release:

‘[T]here is the risk that he can never atone for his offence… however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable…Thus, even when a whole life sentence is condign punishment at the time of its imposition, with the passage of time it becomes – to paraphrase Lord Justice Laws in Wellington – a poor guarantee of just and proportionate punishment.’188

184 Ibid. 185 Ibid. 186 Ibid. 187 Ibid. 188 Ibid.

60 R Bleetman

The Court further argued that this order lacked clarity concerning the prospect of release in regards to when the Secretary of State would permit a prisoner to be released on compassionate grounds. The Court argues that the law had placed ‘highly restrictive conditions’ on when a prisoner could argue for release and used ‘broad wording’ which lacked legal clarity.189Thus, the prospect of any form of release makes this order particularly problematic and requires re-examination.

Following the ECtHR decision, the issue returned to UK domestic courts with the case of R v.

McLoughlin 2014. The Court essentially dismissed the ECtHR’s judgement in finding that the law did present the possibility of release and the ECtHR simply ‘misunderstood English law’.190 However, the House of Lords and House of Commons’ Joint Committee on Human

Rights produced a report in 2014 on the issue and specifically pushed the Government to rethink the Whole Life Order policy. They argued that whilst the Government believes that the Mcloughlin case has ‘settled the domestic position’, the committee recommends ‘a probing amendment to the Bill to introduce more legal certainty into the legal domestic framework’.191

The report states that this proposal was debated in the House of Lords on 14 July 2014 and was ‘supported by most speakers in the debate…but not pressed to a vote’.192 Furthermore, the Government submitted an Action Report to the Committee of Ministers ‘asking it to close its supervision of the case on the basis that the decision of the Court of Appeal in

189 Ibid. 190 Shah, N. (2015). Hutchinson v UK – A Change in Direction on Whole Life Orders?. Available: http://ohrh.law.ox.ac.uk/hutchinson-v-uk-a-change-in-direction-on-whole-life-orders/. Last accessed 20th February 2017. 191 Joint Committee on Human Rights (2014). Legislative Scrutiny: (1) Serious Crime Bill, (2) Criminal Justice and Courts Bill (second report), and (3) Armed Forces (Service Complaints and Financial Assistance) Bill. London: The Stationery Office Limited. 24. 192 Ibid.

61 R Bleetman

McLoughlin has resolved the issue’.193 Moreover, the report condemns the inaction of this issue by the Government in highlighting that:

‘According the principle of subsidiarity, which is an inherent part of the ECHR’s regime following an adverse judgment by the Court, it is the national authorities, including Parliament who have the primary responsibility to consider, discuss and decide precisely how to respond to such a judgement, subject to the supervision of the Committee of Ministers’194

Since this proposal, the ECtHR ruled in the recent case of Hutchinson v. The United Kingdom

17/01/2017, on this same issue, that:

‘[T]he McLoughlin decision has dispelled the lack of clarity identified in Vinter arising out of the discrepancy within the domestic system between the applicable law and the published official policy. In addition, the Court of Appeal has brought clarification as regards the scope and grounds of the review by the Secretary of State, the manner in which it should be conducted, as well as the duty of the Secretary of State to release a whole life prisoner where continued detention can no longer be justified on legitimate penological grounds.’195

They subsequently found no violation of Article 3 in ruling on the same, non-revised, law regarding whole life orders as the Court of Appeal had clarified any confusion surrounding the possibility of review. However, in expressing dissent surrounding the ruling, ECtHR

Judge López Guerra argued that:

‘The Court of Appeal did not clearly state what are the “exceptional circumstances” that are capable of triggering the review mechanism, or what are the grounds on which this review can be sought. On the contrary, it stated that “the term ‘exceptional circumstances’ is of itself sufficiently certain’. 196

Furthermore, in line with the Joint Committee’s report on this issue, the Judge argued that legislation had to be amended for fear that if it wasn’t, we would see a weakness within the

193 Ibid 25. 194 Ibid. 195 European Court of Human Rights. (2017). Hutchinson v. The United Kingdom. Available: http://hudoc.echr.coe.int/eng#{"fulltext":["hutchinson"],"documentcollectionid2":["GRANDCHAMBER","CH AMBER"],"itemid":["001-170347"]}. Last accessed 20th February 2017. 196 Ibid.

62 R Bleetman

Human Rights Act ‘when a domestic court does not take full account of the Strasbourg case- law’.197

Political Relationship: Whole Life Orders

The 2003 Act, leading to the establishment of Whole Life Orders, passed through Parliament under a majority Labour Government and remained in its original form under both the

Conservative-Liberal Coalition and the present Conservative majority Government. The ruling of Vinter and Others demonstrated that the main, legally problematic aspect of this law was that, in order to be in line with Article 3 of the ECHR, the law would require ‘a procedure that would give a prisoner a tenuous prospect of release’.198 The law however, was not changed to make this amendment. To understand the political relationship of reform in this case, it is important to look at the Parliamentary debates that took place after the initial judgement. Although no legal change occurred, it is important to note what arguments were used to defend a path of non-reform.

4 February 2014, Secretary of State for Justice, Chris Grayling MP, was asked by fellow

Conservative MP, Phillip Davies, in Parliament what ‘discussions he has had with judges on the judgement’199 made in Vinter and Others. Mr Grayling MP replied that he has not spoken with the judiciary as they are awaiting the Court of Appeal’s decision on the matter. In response, Phillip Davies MP replied:

‘Mr Justice Sweeney has already refused to give a whole-life tariff to a murderer due to a ruling from the European Court of Human Rights, and he has deferred the sentencing for the

197 Ibid. 198 Zyl Smit, D, Weatherby, P & Creighton, P. (2014). Whole Life Sentences and the Tide of European Human Rights Jurisprudence: What Is to Be Done?. Human Rights Law Review. 14, 72. 199 House of Commons Library. (2014). Whole Life Tariffs. Available: https://hansard.parliament.uk/Commons/2014-02-04/debates/14020470000013/Whole-LifeTariffs. Last accessed 20th February 2017.

63 R Bleetman murderers of Drummer Lee Rigby, who most right-thinking people think should get a whole- life tariff. When are we going to withdraw from the European convention on human rights and the increasingly barmy European Court of Human Rights, so that we can ensure that a life sentence means a life sentence for the murderers of Lee Rigby?’200

In response, Chris Grayling MP replied:

‘I agree with my hon. Friend’s sentiments. We have gone to the Court of Appeal to ensure we can continue to give whole-life tariffs in this country. My view is that this should always be a matter for Parliament, but as he knows, while we have good collaborative relationships across the coalition and while we agree on many things, there are some things we do not agree on, and this is one of them, so I am afraid that wholesale change to our relationship with the European Court of Human Rights, which I personally think is urgently needed, will have to await the election of a majority Conservative Government.’201

Jeremy Corbyn MP (Labour) responded:

‘Will the Justice Secretary think about what he just said? He might agree or disagree with an individual decision of the ECHR, but does he not recognise that having a Europe-wide convention which protects the human rights of everybody in every country that is a signatory to it is good for all of us, including victims of irrational justice decisions in other jurisdictions? Will he not declare that we support the idea of a European convention on human rights and that we will not withdraw from it.’202

Chris Grayling in response, expressed his dissent with this opinion and claimed that on this issue, the ‘Court had overstepped the mark’. Dr Julian Huppert MP (Liberal Democrat) supported Jeremy Corbyn’s attitude in response to this remark, in asking if:

‘[T]he Justice Secretary think[s] it helps…to be so negative about the European convention on human rights and the European Court? These are our standards, and we should be trying to export them, not pull away from them ourselves.’203

Further support for the Court was raised by Barry Gardiner MP (Labour) in stating how the

Court protects ‘fundamental freedoms in this country’ but was further criticized by

Conservative MP Julian Brazier for moving far ‘from its original foundations’.204

Furthermore in July 2014, the House of Lords further discussed this issue and Lord Lester of

200 Ibid. 201 Ibid. 202 Ibid. 203 Ibid. 204 Ibid.

64 R Bleetman

Herne Hill (Liberal Democrats) argued that in accordance with Article 46 of the Convention, the UK must abide by ECtHR judgement and thus states that:

‘I simply do not understand how the Government think they can get away with it. They have already spent years and years, like their predecessors, in trying to get away with their refusal to abide by the final judgments in the prisoners’ voting rights case… The JCHR [Joint Committee on Human Rights] said that this was a probing amendment, and that is what it is, but it is an extremely valuable probing amendment. 205

However, Lord Faulks (Conservative) concluded, in accordance with the Government, that the amendment was unnecessary as the Court of Appeal already ruled on the issue.206 Finally, the Conservative Party in 2014 produced an eight-page document entitled: ‘Protecting

Human Rights in the UK’ in which they claim the ‘mission creep’ of the ECtHR ‘attempts to overrule decisions of our democratically elected Parliament’.207 In this document, the party references the 2013 Vinter and Others case as an example of such ‘mission creep’.

Tracing Reform: Modern Slavery

C.N v. The United Kingdom 13/11/2012 concerned a woman from Uganda who travelled to the UK in 2002 to escape ‘sexual and physical violence’ and to ‘work to support herself in the United Kingdom’.208 On arrival in the UK, a relative, named S. and a Mr A., ‘took her passport …and did not return them to her’. In 2003, she began working as a live-in carer

205 House of Commons Library. (2014). Criminal Justice and Courts Bill. Available: https://hansard.parliament.uk/Lords/2014-07- 14/debates/14071416000331/CriminalJusticeAndCourtsBill?highlight=whole%20life%20order#contribution- 14071416000116. Last accessed 20th February 2017. 206 Ibid. 207 The Conservative Party (2014). Protecting Human Rights in the UK: The Conservatives Proposals for Changing Britain's Human Rights Laws. Available: file:///Users/rachbleetman/Downloads/HUMAN_RIGHTS.pdf. Last accessed 20th February 2017. 208 European Court of Human Rights. (2012). C.N. v. The United Kingdom. Available: http://hudoc.echr.coe.int/eng#{"fulltext":["C.N."],"documentcollectionid2":["GRANDCHAMBER","CHAMBE R"],"itemid":["001-114518"]}. Last accessed 23rd February 2017.

65 R Bleetman however all her earnings were taken by S and in some instances, she was kept locked inside a house and was unable to leave. Having escaped, the applicant claimed asylum but her claim was rejected and following an investigation by the Metropolitan Police’s Human Trafficking team, the applicant’s solicitor was advised that there was no evidence to support her claims.209 As a result of a continued investigation into the case, the police wrote to the applicant’s solicitor stating that:

‘[T]his particular case does not fulfil the requirements of human trafficking as per UK legislation and that legislation does not exist in relation to sole and specific allegations of domestic servitude where trafficking is not a factor.’ 210

In the UK therefore, the police needed to conclude that trafficking had occurred as domestic servitude in and of itself, was not then a specific crime under British law. As the police could not conclude that human trafficking had occurred, since the applicant had purchased false travel documents to enter the UK herself, they were unable to proceed with criminal charges.

Thus, the case was taken to the ECtHR in which the applicant claimed that in line with

Article 4 (prohibition of slavery and forced labour):

‘[A]t the time of her ill-treatment the Government were in breach of their positive obligations under Article 4 of the Convention to have in place criminal laws penalising forced labour and servitude’.211

The ECtHR, confirmed that:

‘[A]t the time the applicant alleged that she was subjected to treatment falling within the scope of Article 4 of the Convention, such conduct was not specifically criminalised under domestic law… Consequently, the Court considers that the criminal law in force at the material time did not afford practical and effective protection against treatment falling within the scope of Article 4 of the Convention’.212

A violation of Article 4 was therefore found and the Court stated:

209 Ibid. 210 Ibid. 211 Ibid. 212 Ibid.

66 R Bleetman

‘Consequently, the Court finds that the investigation into the applicant’s complaints of domestic servitude was ineffective due to the absence of specific legislation criminalising such treatment.’

In December 2013, the Modern Slavery Bill first appeared in Parliament, it aimed to ‘expose the hidden crime of slavery, bring more perpetrators to justice and protect and support victims’.213 Whilst the Bill arguably tackles the domestic lacuna in the UK by specifically addressing the issue of domestic servitude, the background to the Bill is not, for the most part, specifically linked to the outcome of the C.N. case. In the initial background documents to the case drawn up by the Home Office and Conservative MP, James Brokenshire, the only reference made to the Court is in the memorandum on the ECHR in relation to the Bill (as required by the HRA). The only reference made to this case in this document is as follows:

‘The offence in section 71 was enacted in the Coroners and Justice Act 2009. This enabled the United Kingdom to address the criticisms in the European Court of Human Rights judgment in CN v UK 13 November 2012…. The Court in this case emphasised that domestic servitude is distinct from trafficking and exploitation and involves a complex set of dynamics, involving both overt and more subtle forms of coercion, to force compliance… The Court considered that due to the absence of a specific offence of domestic servitude, the domestic authorities were unable to give due weight to these factors. Keeping the offence separate in the Bill is the easiest way to achieve the specificity required by case law and therefore to meet the requirements of Article 4.’ 214

The declaration to confirm that any new Bill proposal is in line with the ECHR is a requirement of the HRA but this declaration, or direct link to an adverse judgement, is also usually included in the presentation of the Bill in Parliament or Gov.UK website page, this however is not the case here. Furthermore, it seems oddly coincidental that the C.N. ruling took place at the end of 2012 and in August 2013, the Government announced plans to reform current legislation without specifically stating that it was a direct response to the ruling. Particularly as the UK has long been signatories of treaties and conventions that

213 Home Office. (2013). Draft Modern Slavery Bill. Available: https://www.gov.uk/government/publications/draft-modern-slavery-bill. Last accessed 23rd February 2017. 214 Home Office. (2013). ECHR Memorandum, Modern Slavery Bill. Available: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/318618/ECHRmemoModernSlav ery.pdf. Last accessed 23rd February 2017.

67 R Bleetman outlaw the practice such as, the International Labour Organisation’s Abolition of Forced

Labour Convention in 1959 and the 1950 ECHR. Governments have been known to reference a ECtHR ruling when they enact reform as we have seen in the Christine Goodwin case and transgender rights as well as with the S. and Marper case and issue of DNA retention. The

House of Commons research briefing on this issue highlighted how in 2009, former director of Public Prosecutions, Ken Macdonald QC argued in the House of Lords that:

‘In order for the United Kingdom to comply with its obligations under Article 4 ECHR and the ILO, clear, dissuasive and directly applicable statutory criminal offences of forced labour and servitude are needed which penalise and permit effective prosecution of those who subject others to abuse and oppression. Without them, the United Kingdom is vulnerable to successful challenges in the European Court of Human Rights. We are aware of two such challenges in the pipeline.’215

However, the Labour Government at the time, responded that ‘existing criminal law set out adequate protection’.216 Moreover, an 80-page report commissioned by former Home

Secretary, Theresa May, and chaired by Labour MP Frank Field, to produce evidence on the need for the Modern Slavery Bill, made no reference to the C.N case, the European Court of

Human Rights or the Human Rights Act. In 2009 therefore, the (Labour) Government thought that existing legislation was enough but in 2012, this was clearly proved false. It took the Conservatives until 2013 to fully address the issue, just a few months after the ECtHR case.

Despite the passing of this Bill in 2015, there has been significant criticism surrounding it.

The Centre for Advice on Individual Rights in Europe (AIRE) argued that it was ‘less than adequate’ and they voiced ‘strong concerns about the general focus upon the prosecution of

215 Lipscombe, S & Beard, J. (2014). Human trafficking: UK responses. Available: https://www.files.ethz.ch/isn/176891/SN04324.pdf. Last accessed 23rd February 2017. 7. 216 Ibid 8.

68 R Bleetman trafficking offences over the protection of victims’.217 Furthermore, a European Policy brief paper in 2016 argued that the Act is ‘likely to fall short of expectations’ because of the

‘failure to protect domestic workers and deter abusive behaviour on the part of employers’.218

Finally, Gary Craig, argued that the Bill presented in 2013 ‘was very weak and led to substantial criticism from virtually every side’ and the Government’s claim that ‘it was world-leading looked very fragile indeed’. 219

Political Relationship: Modern Slavery

Therefore, despite the change in law to specifically address the issue of modern slavery, there are political implications that need to be explored. Why was there very little reference made to the specific ECtHR case that highlighted this ‘domestic lacuna’? What does the

Parliamentary debate surrounding this bill reveal about European involvement in the issue?

And finally, why is it deemed so ineffective by critics?

Firstly, the Modern Slavery Bill is directly tied to issues of immigration as highlighted by external commentators, Parliamentary debates and the content of the law itself. The consultation on the Draft Modern Slavery Bill was commissioned by former Home Secretary

(and current Prime Minister) Theresa May. She asked Frank Field MP ‘in his role as vice- chair of the Human Trafficking Foundation…to lead an urgent public debate’ on the issue.220

The 2013 report, which made no reference to the C.N. case or the ECtHR, played

217 The AIRE Centre. (2014). The Modern Slavery Bill: From Idea to Implementation - http://www.airecentre.org/news.php/139/the-modern-slavery-bill-from-idea-to- implementation#sthash.D1kJc94L.dpuf. Available: http://www.airecentre.org/news.php/139/the-modern- slavery-bill-from-idea-to-implementation. Last accessed 23rd February 2017. 218 European Commission. (2016). The gap between law and reality: addressing human trafficking in the British domestic work industry. Available: https://ec.europa.eu/research/social- sciences/pdf/policy_briefs/demandat_policybrief_uk_tmaroukis.pdf. Last accessed 23rd February 2017. 219 Craig, G. (2014). Human Trafficking and the UK Modern Slavery Bill. Social Inclusion. 3 (1), 137. 220 Lipscombe, S & Beard, J. (2014). Human trafficking: UK responses. Available: https://www.files.ethz.ch/isn/176891/SN04324.pdf. Last accessed 23rd February 2017. 20.

69 R Bleetman significantly into the final version of the 2015 Act. Its principal author, Frank Field, a Labour

MP, was also a prominent Leave campaigner during the 2016 Brexit referendum. He wrote in the Guardian in June 2016 about the importance of Brexit for reasons of immigration, particularly as the UK would then be able to ‘decide who comes here and how they come’.221

Theresa May MP, who commissioned the report, is also an advocate for scrapping the HRA.

The importance of immigration, Brexit and this particular bill is highlighted in several critiques of the final version of the Modern Slavery Act. Rahila Gupta, a journalist and author on the issue, wrote that:

‘Almost all the ‘failings’ [of the Bill] can be attributed to the government’s attempt to keep immigration figures low. The greater the number of people identified as trafficked, the greater the government’s responsibilities towards them under the European Convention against Trafficking, to which the government is a signatory....This central contradiction at the heart of government policy becomes as clear as crystal when you look at the bills going through Parliament now: the Immigration Bill, which aims to create a 'hostile environment' for irregular migrants by turning landlords, doctors, bankers into border control guard-dogs, sits alongside the Modern Day Slavery Bill which aims to help a target group which overlaps with irregular migrants.’ 222

Furthermore, a European policy briefing paper from the European Commission found that one of the ‘main obstacles to preventing exploitative situations within the domestic work industry’ is ‘strict immigration rules and political priorities of law enforcement agencies’.223

In fact, they argue that ‘British migration policy contradicts the implementation of a public policy intent on criminalising and stopping THB [trafficking in human beings]’.224 This is because, for example, when migrant domestic workers flee from their employers, they are

221 Guardian: Field, F. (2016). Brexit would help us control immigration. Like me, many Labour voters want out. Available: https://www.theguardian.com/commentisfree/2016/jun/14/eu-immigration-control-labour- supporters-voters-party. Last accessed 23rd February 2017. 222 Gupta, R. (2014). The Modern Slavery Bill: does the British government really care?. Available: https://www.opendemocracy.net/5050/rahila-gupta/modern-slavery-bill-does-british-government-really-care. Last accessed 23rd February 2017. 223 European Commission. (2016). The gap between law and reality: addressing human trafficking in the British domestic work industry. Available: https://ec.europa.eu/research/social- sciences/pdf/policy_briefs/demandat_policybrief_uk_tmaroukis.pdf. Last accessed 23rd February 2017. 2. 224 Ibid 2.

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‘first and foremost treated by the police as immigration law offenders’.225 Furthermore, in a

Parliamentary debate on the issue, Labour MP Michael Connarty asked Theresa May if the

‘UK Border Agency [will] stop victimising people by criminalising them for breaches of immigration laws?’.226

The issue of immigration played a significant role in subsequent debate and scrutiny of the

Bill as it arguably prevents immigrant domestic workers from coming forward for fear of being caught as an illegal worker. As Kate Roberts, from the group Kalayaan, mentioned in the July 2014 Public Bill Committee discussion in Parliament, ‘What you need is a situation where not only do victims come forward, but, when they come into the police station, they are identified as victims rather than immigration offenders.’227

Even in the final hours of debate for this Bill, some members of the House of Lords were still unhappy with the immigration aspect of the Bill that would criminalise those who came forward. In addition, in 2014, MPs voted on whether to amend the Bill by adding a clause that would ‘change visa arrangements’ in an effort to ‘protect workers from slavery’.

However, this was rejected by 245 Conservative MPs and 43 Liberal Democrat MPs and approved by 214 Labour MPs and 1 Liberal Democrat MP. Thus, it failed to pass.228 The amendment would have essentially been a relaxation of immigration laws to help better protect those at risk of domestic servitude.

225 Ibid 3. 226 House of Commons Library. (2014). Modern Slavery Bill: First Presentation and Reading. Available: https://www.publications.parliament.uk/pa/cm201415/cmhansrd/cm140610/debtext/140610- 0001.htm#14061054000004. Last accessed 23rd February 2017. 227 House of Commons Library. (2014). Public Bill Committee: Modern Slavery Bill. Available: https://www.publications.parliament.uk/pa/cm201415/cmpublic/modernslavery/140721/pm/140721s01.htm. Last accessed 23rd February 2017. 228 The Public Whip. (2014). Modern Slavery Bill — New Clause 1 — Protection of overseas domestic workers from slaver. Available: http://www.publicwhip.org.uk/division.php?date=2014-11- 04&number=71&mpn=Ian_Lucas&mpc=Wrexham&house=commons. Last accessed 23rd February 2017.

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In terms of the ECtHR and European law, Mr Burrowes MP (Conservative) argued in the

September 2014 Public Bill Committee discussion that this law was important and kept the

UK up to date with ECtHR case law and it was important that the UK keeps ‘in step with international law and norms’.229 Furthermore, Karen Bradley MP (Conservative

Parliamentary Under-Secretary of State for the Home Department) stated that, ‘The offence was introduced as a result of concerns that the UK was not compliant with its obligations under article 4 of the European convention on human rights.’230 However, there was not a single mention of the C.N. case or the lacuna it revealed in domestic law. There were however, references relating to the need to reform in line with European law from both main parties. This lack of reference to the case in both parliamentary debates and the majority of background papers on the Bill raises the question of how direct the link between the case and reform is. I would argue that the adverse ruling and subsequent reform a few months later is no coincidence and the one reference in the mostly unseen, document produced by the Home

Office on the ECHR memorandum gives evidence to that. However, the authors of the Bill and Home Office do not give the ruling much credit and instead use terminology such as proving the ‘Government’s intention to be at the forefront of the fight against modern slavery’ 231whilst not mentioning the impetus to do so.

This Bill in sum, was firstly deemed inadequate by several commentators and experts both domestically and internationally, secondly, wholly connected to immigration laws and thirdly, largely divorced from the apparent European impetus to make it happen. Much of the

229 House of Commons Library. (2014). Public Bill Committee: Modern Slavery Bill. Available: https://www.publications.parliament.uk/pa/cm201415/cmpublic/modernslavery/140902/am/140902s01.htm. Last accessed 23rd February 2017. 230 Ibid. 231 Lipscombe, S & Beard, J. (2014). Human trafficking: UK responses. Available: https://www.files.ethz.ch/isn/176891/SN04324.pdf. Last accessed 23rd February 2017. 21.

72 R Bleetman critique of the Bill relates to the relationship between strict immigration laws and the ability to protect victims of modern slavery. Thus, whilst reference to the ECtHR and European law throughout the Parliamentary debate was quite positive for both parties, the level of

Euroscepticism found surrounding the issue can arguably be related to the issue of immigration. The Labour MP at the heart of the evidential report was staunchly anti-Europe on immigration grounds and the author and presenter of the Bill, Theresa May, has often been associated with her strict immigration policies as Home Secretary. The amendment that could have helped reduce the problems associated with strict immigration was strongly opposed by

Conservative MPs but supported by Labour ones. This does not produce a clear, direct link between Euroscepticism and this particular issue, but it does raise questions of how distinctly different the two issues can be placed in this debate. This issue occurred much later than many of the other examples used in this paper and arguably, 2015 was a much more delicate time in British politics in relation to Europe. Thus, the lack of reference to the C.N case could be a result of this and a desire to keep rhetoric surrounding the influence of the ECtHR out of public discourse.

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Results

Issue Reform Significant Acknowledgement Use of Passed to Critiques of of the ECtHR Euroscepticism to Correct Reform ruling prevent reform the Violation Prisoner Yes but no action Used significantly Voting taken. by Conservatives to N N/A prevent reform.

Widow Benefit Labour did not No – but Labour Payments amend the law to used HRA to Y include Y defend not retrospective amending payments. retrospective payments. Transgender Lost another None found. Rights ECtHR case after reform. Deemed to Y be over-medicalised Y and not far reaching enough e.g. NHS services and spousal consent. Police None found on Yes for RIPA but None found. Surveillance RIPA and IPCC but No for IPCC. Y current disputes of 2016 Surveillance Bill. Retention of None found Used in debate by DNA of some Conservatives Suspects Y Y but still enacted reform.

Whole Life Yes but no action Used significantly Orders taken. by Conservatives to N N/A prevent reform.

Modern Problem with Very little, only Used indirectly by Slavery related strict reference made in Labour MP and Y immigration laws mandatory ECHR some Conservatives and failure to memorandum, through the issue of protect domestic otherwise, absent. immigration – full workers. reform prevented on that basis. Figure 2: Presentation of Results

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Conclusion

There are many factors that influence the relationship between the UK and European institutions. The relationship between specifically the ECtHR and the UK is particularly interesting because it involves an assumption of compliance that can essentially, be ignored.

It is important to emphasise again the distinction between arguments that demonstrate scepticism towards a European institution and arguments that demonstrate scepticism to judicial review. As the UK does not have a long history of judicial review as a check on parliamentary sovereignty, resistance to reform could arise from objections to either Europe or to Courts. This thesis aimed to examine only the Eurosceptic side of this issue but in doing so, accepts the limitations of any broad generalisations.

The findings of my research illustrate how the presence of Euroscepticism, as a tool in the

British political sphere, carries significant implications for human rights in the UK. This research extends current work in this area to demonstrate how Euroscepticism is employed and manipulated to in some cases, prevent reform altogether, and in others to prevent fully, effective reform. It also tests the theories of other prominent authors in the field to help understand in what circumstances, Euroscepticism is likely to be used and it provides a more in-depth look at the process of reform within its political environment.

Existing theories have both grouped issues together based on for example, security, crime and moral issues to explain the discrepancy in implementation and, looked at reform as an all or nothing entity. Stiles and Besson posit a relationship between issues around crime, security and terrorism and the use of Political Euroscepticism, arguing that in these types of issues,

Euroscepticism is likely to be invoked. Douglas-Scott purports that ‘value-based

Euroscepticism’ provokes discontent amongst the British public when they feel that EU

75 R Bleetman institutions are involving themselves in moral issues that should be left to the nation-state.232

Arguing that it is value based, moral arguments that will lead to sentiments of

Euroscepticism.

Furthermore, the Conservative Party is considered to be the main, and sometimes only, mainstream party to be explicitly Eurosceptic. For example, Edwards argues that ‘Criticism of the European Court of Human Rights has come primarily from the political right…the

Conservative part of the coalition government.’233 The Conservative party does use

Euroscepticism significantly more than the Labour Party as a reason for inaction but this is not consistently, nor is it exclusively, a Conservative tool. Instead, Euroscepticism rears its head when necessary to prevent reform MPs oppose on principle or perhaps when public opinion is ripe in favour of Eurosceptic arguments. This argument is supported by Bates who finds that when the prisoner voting issue was ruled on in Hirst in 2005, it ‘did not seem to attract much controversy’ but by 2010, it was used as being ‘emblematic of the current strained relationship’.234

As this paper has shown, there are several problems with these theories. The security issue classification by Besson and Stiles cannot explain the discrepancies found in this paper. For example, two security/crime related issues, prisoner voting and whole life orders, were not reformed in line with the ECtHR rulings. However, two other security/crime related issues were reformed; police surveillance and DNA retention, the latter being reformed by the

232 Douglas-Scott, S. (2015). Fundamental Rights, Not Euroscepticism: Why the UK Should Embrace the EU Charter of Fundamental Rights. In: The UK and European Human Rights. A Strained Relationship? Oxford: Hart Publishing. 269 233 Edwards, J. (2012). Rhetoric and rights. Localism and human rights in the UK. L’Observatoire de la société britannique .12. 115-128. 234 Bates, E. (2015). The UK and Strasbourg: A Strained Relationship. In: The UK and European Human Rights: A Strained Relationship? Oxford: Hart Publishing. 65

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Conservatives, to a greater extent than Labour had proposed, despite being a party usually considered more ‘tough on crime’.235 Furthermore, value-based issues, as Douglas-Scott argues, would presumably cover transgender rights, but reform to legal recognition of transgender rights passed easily through Parliament with no reference to Euroscepticism.

Prisoner voting and Whole Life Orders were not reformed by either party and in both issues, the Conservatives posited Eurosceptic arguments as a reason for non-reform. The

Conservatives when discussing prisoner voting, explicitly weighed the principle of prisoner voting itself against the requirement to adhere to ECtHR rulings and concluded, that the principle of prisoner voting itself was more important. Furthermore, modern slavery was addressed by the Conservative Government. However, reform was widely criticised as it related too closely to the Conservative’s strict immigration policies, an issue inherently tied to the issue of Euroscepticism. Conservative Euroscepticism was also present in debates surrounding the retention of DNA although reform was passed and was deemed effective.

Both Labour and Conservative Governments enacted change to help protect Transgender rights, although both reforms faced criticism, opposition to these changes did not stem from overtly Eurosceptic arguments.

Police surveillance issues faced no overt, Eurosceptic arguments but the Labour party did not reference the relevant ECtHR case when creating the Independent Police Complaints

Commission. The Labour Party also used the Human Rights Act to defend inaction on allowing widowers to claim benefits retrospectively by emphasising sovereign laws over

European laws. The motives in doing so are unclear as the political arguments used by

235 Blakemore, K & Warwick-Booth, L (2013). Social Policy: An Introduction. 4th ed. England: Open University Press. 99.

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Labour MPs refrained from explicitly criticizing the ECtHR or Europe in general.

Additionally, there were only two instances where a Labour MP took an arguably

Eurosceptic stance, but in both cases, these were not explicit views. Jack Straw MP, in his work to prevent giving prisoners the vote, did not criticise the ECtHR as an institution but overtly disagreed with the principle itself. Frank Field MP in his report on Modern Slavery did not reference or acknowledge the ECtHR ruling and was a prominent ‘Brexiteer’ but he was still instrumental in pushing through reform to be compliant with the ECtHR ruling.

The inconsistency of the presence of Euroscepticism in the examined cases represents an inconsistency with the concept itself. However, despite its inconsistency, it can still be considered as a political tool, raised up when required and ignored when it is not. As

Edwards’ argues, ‘the nature of the criticisms suggest no consistent body of thought, but rather a petulant opportunism based on trivial court cases and (too often) a mistaken interpretation of them.’236 As a political tool, it is presented as a justification for reform in some cases and as a justification for inaction in others. This research has also shown that whilst this is usually defined by the party in power, it is not always the case.

This makes it difficult to predict the chances of reform under each party. The findings of this research could not concretely conclude that whilst the Conservatives use Euroscepticism more often, they would therefore be less likely to reform in line with ECtHR rulings.

Sometimes, despite Euroscepticism, such as in the case of DNA retention, the Conservative party still enacted effective reform. Furthermore, Labour was in power when the prisoner voting issue arose and did not enact reform. In addition, the party often uses arguably,

236 Edwards, J. (2012). Rhetoric and rights. Localism and human rights in the UK. L’Observatoire de la société britannique.. 12. 115-128.

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Eurosceptic-style or domestic oriented arguments to avoid implementing fully effective changes, such as in the case of widower benefit payments. Since the 2016 Brexit vote and the increase in public Euroscepticism, it is likely that reform will become less effective, less swift and less overtly related to ECtHR rulings. This is likely to still be most present in the

Conservative party but these examples show that Political Euroscepticism is not exclusively a

Conservative party tool.

This thesis therefore, has drawn attention to significant problems with these theories. In effect, there is no apparent steadfast rule to explain why, when and by who, Euroscepticism appears in British politics in response to ECtHR rulings. We therefore cannot predict both when Euroscepticism might be invoked or by which party it might be used by, as a political argument to prevent, delay or water-down reform. Nevertheless, this paper posits three conclusions to help better explain the role Political Euroscepticism can play and the form it may take:

1) Euroscepticism is a political tool that is inconsistently used to try and prevent

domestic reform however its usage cannot be necessarily predicted on security, crime

or value-based issue classification as other theories have posited.

2) UK domestic reform cannot be taken on face-value. Euroscepticism does not always

prevent reform from happening but it can influence how effective it is.

3) We must remain cautious of the inconsistency of crediting ECtHR cases as being the

impetus for reform. This is arguably, a subtle form of Euroscepticism than can

unfairly skew the British perception of the ECtHR.

The implications of this creates a troubling environment for the UK’s domestic implementation of European human rights reform. Euroscepticism, as a mere political card,

79 R Bleetman can thus be played in British politics to shirk responsibility and ignore European directives when suited. European judicial review becomes less of a stable institution with the power to protect British citizens from problematic domestic laws, and more of an institution that is part-and-parcel of the ‘European problem’ seen by many in the UK. This creates a dangerous environment in both politics and law as the Eurosceptic card, is currently an effective one to use. The ability to play this card also raises some issues with the quality of political debate that takes place in the process of domestic reforms. If the focus of debate is largely based on

Euroscepticism, there are other parts of the debate that are being considered as less important in legislation. For example, instead of reasonably discussing types of prisoners that could be given the vote, the debate focused heavily on the issue of European encroachment. Equally, if the main issue was in fact scepticism of judicial review, this was not explicitly discussed as an issue of constitutional importance because Euroscepticism takes centre stage.

Using Eurosceptic arguments thus detracts from true parliamentary scrutiny by using the issue of encroachment as an excuse for inaction or inadequate reform. In discussions of scrapping the HRA, we need to consider this issue. If Europe is truly the main problem for some British politicians then would establishing a so-called, ‘British Bill of Rights’ prevent responsibility shirking based on Euroscepticism? Or, if the political elite really do feel hostility towards judicial review in general, will leaving the ECHR change very little as judicial review will become the new scapegoat? The ‘Great Repeal Bill’ published in March

2017, ‘sets out the government’s proposals for ensuring a functioning statute book once we have left the EU’.237 The Bill will ‘repeal the 1972 European Communities Act’ and thus remove the precedence of European law over British laws passed in the British Parliament. It

237 Gov.UK. (2017). The Great Repeal Bill: White Pape. Available: https://www.gov.uk/government/publications/the-great-repeal-bill-white-paper. Last accessed 7th April 2017.

80 R Bleetman works to essentially, copy all EU legislation into domestic UK law ‘to ensure a smooth transition on the day after Brexit’.238 This Bill however will not directly affect the ECHR or the HRA as they lie outside of the European Union itself. However, if the Government were to take a similar approach and thus convert all the protections of the ECHR into a ‘British

Bill of Rights’, thereby removing the jurisdiction of the ECtHR in place of British judicial oversight, we may see the untangling of Euroscepticism from the fear of judicial encroachment. If this were to happen, the true motive behind hostility to ECtHR mandated reform would be much clearer as Euroscepticism would presumably no longer play a role.

As it stands however, the UK must still adhere to the ECHR and must continue to respect the rulings and judgements made by the ECtHR or it risks presenting itself as a rogue European nation with little respect for international laws and conventions. Any future discussion of the

HRA and ECHR must consider these issues, whilst much of the literature praises the ECHR’s effectiveness in British law, if it creates an opportunity for British politicians to avoid enacting effective reform, perhaps a stronger domestic judiciary system would provide stronger protections? If, however, the issues lie more with the very concept of a judicial system, then withdrawing from Europe may solve very little. Despite these complexities, the issue still stands that Euroscepticism can act as a distraction in British politics that overshadows other intricacies of political, legislative scrutiny.

This issue is intrinsically related to a statement made by ECtHR Judge Pinto De

Albuquerque. In explaining his dissenting opinion in the Hutchinson v. The United Kingdom

17/01/2017 case concerning the ECtHR’s decision to accept the UK’s domestic judicial case stating that Whole Life Orders were sufficiently clear, he argued that:

238 BBC News. (2017). Great Repeal Bill: All you need to know. Available: http://www.bbc.com/news/uk- politics-39266723. Last accessed 7th April 2017.

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‘Domestic authorities in all member States will be tempted to pick and choose their own “rare occasions” when they are not pleased with a certain judgment or decision of the Court in order to evade their international obligation to implement it, especially when the issue is about the protection of minorities, such as prisoners, LGBT people, asylum seekers, migrants, aliens, Roma and other non-State peoples living in Contracting Parties…There is always a minority that the majority is prone to treat as a scapegoat for all the ills in society, by imposing on them objectionable restrictions and limitations on the exercise of Convention rights and freedoms.’

This is only part of the story for the United Kingdom. Whilst in some circumstances of non- reform, it is minorities that will lose protection such as prisoners and their right to vote or immigrant workers in cases of modern slavery, the scapegoat in the British situation appears, for the most part, to be Europe. It was not the released suspects wanting their DNA to be destroyed that were deemed the problem, nor was it only the prisoners themselves asking for a clearer possibility of release, rather it was European institutions that were accused of overstepping their mark and infringing on British sovereignty. This is arguably more of a dangerous situation for minorities and vulnerable groups in the UK as the Eurosceptic argument can always be employed when the impetus for reform comes from a European institution.

The affected group or individual may change but the supranational institution remains the same and thus the argument still applies. Additionally, as this is not solely related to just one political party, the manipulation of Political Euroscepticism could arise under any British government, explicitly or covertly. Whilst the UK remains a signatory to the ECHR and keeps the HRA enshrined into British law, this issue will remain a problem whether Britain is in the European Union or not. Thus, Political Euroscepticism extends beyond membership to the Common Market, immigration controls and trading laws but also includes everyday

82 R Bleetman human rights protection. As political parties adapt more and more to a seemingly,

Eurosceptic public, the likelihood of non-compliance with the ECtHR is likely to increase.

83 R Bleetman

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