Leading voices in both camps in the EU referendum recognise that Human Rights law has been affected by "mission creep" in the interests of sometimes very dubious claims of individual human rights and against national security. "Brexiteers" blame the EU for this, while "Remainers" point the finger at the European Human Rights Court in Strasbourg. Both are wrong.
Responsibility for this "mission creep" really belongs to the UK domestic courts. Both sides of the EU referendum will have a rude awakening when, regardless who wins, they discover the UK judges carrying on merrily on their "politically correct" path. Unlike most predictions surrounding the referendum, this is not a possibility or even a probability, but a certainty - because it does not depend on membership or non-membership of the EU.
If anything, the position is becoming worse, not better, as can be seen from an alarming case involving national security decided as recently as December 2015.
The case involved David Miranda (DM), the spouse of a journalist called Glenn Greenwald (GG), who was provided by the self-styled "whistleblower" Edward Snowden with encrypted data stolen from the US National Security Agency (NSA), plus 58,000 classified UK intelligence documents, including personal information allowing staff to be identified.
DM was stopped by police at Heathrow Airport under Schedule 7 to the Terrorism Act 2000. After questioning him, the police took from him some some encrypted material derived from the data obtained from Edward Snowden. DM claimed that the police's actions were illegal and infringed his right to freedom of speech under Article 10 of the European Convention on Human Rights.
The case went first to the High Court (Divisional Court), which rejected DM's claim outright, and then to the Court of Appeal, which partly reversed the High Court's decision.
Both courts agreed that the seizure of the encrypted material from DM was lawful. But the Court of Appeal's conclusion -- overturning the High Court's decision - was that the stop power in question was in general incompatible with the Article 10 right of freedom of speech. Miranda and Greenwald tweeted gleefully: "We won!" and "Huge win in UK court."
This decision has dealt a sharp blow to the British Government's anti-terrorism policy -- overturning the judgment by Lord Justice Laws (Laws LJ) in the High Court, who is anything but a government stooge.
There are at least two serious problems with the Court of Appeal's decision:
• Journalism: The Master of the Rolls (MR) in the Court of Appeal was too ready to accept DM's counsel's claims elevating journalists' rights of freedom of speech above anyone else's. Laws LJ (at para 71) had rejected these exaggerated claims. Article 10 does not accord journalists any special privileges. Indeed, it does not even mention journalism or the press at all. [The British Human Rights Act (HRA) does, but this case was based on Article 10 itself, not on the HRA]. The inordinate amount of space devoted by Lord Dyson to journalists' rights is all the more puzzling, in that although GG is a journalist, DM is not. Laws LJ had held (para 72) that "the stolen GCHQ intelligence material that he was carrying was not 'journalistic material', or if it was, only in the weakest sense."
• Terrorism: MR took it upon himself to redefine terrorism, rejecting the definition in the Terrorism Act and accepted by the High Court, as "too broad" - in particular, by including in the definition of terrorism "non-violent political activity that indirectly, inadvertently and unintentionally happened to endanger life". MR was unduly impressed by the far-fetched hypothetical example of a protest sign erected by junior doctors which was erected in such a way that it accidentally endangered the life of a passer-by! It is hard to believe that anyone would be arrested on a terrorism charge in such circumstances.
MR's general conclusion is a worrying example of judicial activism or even judicial supremacism -- on the part not of any European court but purely on the part of domestic UK judges.
The term "terrorism" is not a technical legal term or "term of art". It was carefully defined by Parliament in the Terrorism Act, and for a judge to redefine it amounts to legislating, which judges have no right to do.
As for the Court of Appeal's approach to "journalism", that can also not be attributed to any European court. The European Court of Human Rights has frequently had occasion to consider a journalist's right to withhold his or her sources - a right which has not always been upheld. But the Miranda case was not about sources. In the words of Laws LJ (para 48): "The source is no secret: Mr Snowden stole the material, and the claimant (however indirectly) got it from Mr Snowden." Lord Justice Laws also held that there was "'compelling evidence' of a serious risk of harm to the public or national security arising out of Mr Miranda being in possession of the material in question". (Cited by MR, para 78). National security and public safety are specifically mentioned in Art 10 as justifying restrictions on freedom of speech.
There is much talk about preserving British democracy. But democracy depends on power being in the hands of an elected government and parliament. Some judges have seized on Lord Hailsham's well-known warning against an "elective dictatorship", based on the claim that once elected a government can do whatever it likes. This is absolute nonsense. There are in fact many limits on government power, not least the power of the electorate to throw the government out at the next election. What is much more dangerous is the unelected dictatorship of judges who, unlike the elected government, are irremovable and not responsible to anybody. This new form of dictatorship was brought into existence by the Constitutional Reform Act 2005, which amounts to a capitulation by the Government to the judiciary. This will still be in place regardless of the outcome of the EU referendum - until its danger is recognised and the relevant parts of it repealed.
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