Monday, 27 December 2021 19:41

Online violence against women in UK law

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In the conclusion to a paper discussing law reform and text-based online violence against women (OVAW), Barker and Jurasz (2021) asserted that ‘the law itself cannot (and should not) be charged with tackling the phenomenon’ (261). The following is a critical discussion of this statement. The paper begins with a review of the government’s current legislative approach to OVAW. It then reviews the limited case law available. The discussion proceeds to cite relevant recommendations, and closes with remarks on efforts in Scotland to expand the law to address the phenomenon.

The pervasiveness and severity of OVAW, narrowly defined to recognised offenses, are beyond doubt. In a survey conducted in the UK, one in five women reported having experienced online abuse or harassment, nearly half of which containing sexist or misogynistic language and 27% threatening sexual or physical assault (Amnesty International UK 2017). The survey results were cited in the Consultation Outcome of the Online Harms White Paper (OHWP 2020). In its response to the consultation, the government acknowledged that online intimidation and abuse can stop ‘talented individuals, particularly women and those from minority backgrounds, from standing for public office, or undertaking high profile roles such as journalism’ (OHWP Cm 354). In the current Draft Online Safety Bill (CP 405), online service providers would have a duty of care regarding content that is harmful to adults. In section 46, harmful content is defined as follows:

Content is within this subsection if the provider of the service has reasonable grounds to believe that the nature of the content is such that there is a material risk of the content having, or indirectly having, a significant adverse physical or psychological impact on an adult of ordinary sensibilities (“A”). (3)

If the content affects people with a certain characteristic, the provider is to assume that A possesses said characteristic (s46(4)). The government may also define harmful content under section 47. The Bill has attracted criticism. Harbinja (2021) observed that the notion of indirect harm is ambiguous and that the ‘adult of ordinary sensibilities’ standard is vague. Why this standard should be used in assessing risk instead of the ‘reasonable person’ standard is uncertain. However, the drafters may have intended to create opportunities for activist or pro-feminist judges to take judicial notice (Hunter, McGlynn and Rackley 2010) of the harms resulting from OVAW.

Returning to the assertion made by Barker and Jurasz (2021) that the law cannot (and should not) tackle OVAW, what is meant by ‘the law’ is somewhat unclear. However, the authors previously (2018) posited that criminal law has a significant role to play and that legislation targeting misogynistic online abuse should be created. In criminal proceedings, courts in England and Wales rely on section 127 of the Communications Act 2003 and section 1 of the Malicious Communications Act 1988. Barker and Jurasz (2021) identified three lower court rulings, though these have not been referenced by a higher court. In R v Nimmo and Sorley (2014, unreported), the defendants posted extremely threatening tweets, and the magistrate noted the ‘serious harm’ (6) caused to the victims. In R v Viscount St Davids (2017, unreported), the victim was subjected to ‘racist, sexist, and misogynistic abuse’ on social media (Barker and Jurasz 2021 252). One or more threats to kill (ibid 254) were made in R v Nunn (2014, unreported)

Further review of the case law suggests that decisions involving published online communications are uncommon. Typically, in cases involving the two statutes, messages have been sent directly by text or email. Three exceptions are notable. Chambers v DPP ([2013] 1 WLR 1833) involved a tweet in which the defendant threatened to blow up an airport. In DPP v Kingsley Anthony Smith ([2017] EWHC 359 (Admin)), the defendant posted extremist (religious) messages to his Google+ page. Finally, Chabloz v Crown Prosecution Service ([2019] EWHC 3094 (Admin)) involved blog hyperlinks to hateful (racist) YouTube videos. It is unsurprising that cases involving OVAW are rarely reported. For a seminal paper, Lewis, Rowe and Wiper (2017) conducted an in-depth study of the experiences of women engaging in pro-feminist discourse online. The study included a survey with 226 valid responses. In all, 44 of the respondents had contacted police regarding abuse. Only seven reported satisfaction with the police response, for a rate of 16%. In contrast, the overall satisfaction rate for police responses in England in Wales was 84% in 2014 (ibid). In interviews, participants stated that police were indifferent to online abuse or that officers were ‘uncertain about the legal and organizational capacity to respond’. (The authors concluded that ‘online abuse is most usefully conceived as a form of abuse or violence against women and girls, rather than as a form of communication’.)

Arguably, then, the law can (and should) tackle OVAW, if OVAW is narrowly defined. However, police, prosecutors, and courts must make greater efforts to recognise it and the harms it causes. Worldwide, 85% of women have reported witnessing online violence against other women (The Economist 2020). The European Institute for Gender Equality (2017) argued that police discount and minimise the harms of online violence against women and girls (VAWG), and construct the experiences of victims as ‘incidents’ rather than patterns of behaviour. The Institute recommended that training on online VAWG with a gender perspective be introduced for police responses. Glitch UK and End Violence Against Women Coalition (2020) also argued that law enforcement officials should ‘receive updated training and appropriate resourcing to handle cases of online violence’ (10). Eckert (2018) argued that law, police, social media, and society ‘do not yet fully acknowledge the seriousness and frequency with which women are targets of online abuse’ (1297). Substantial commitments of resources will be necessary to achieve this end.

If OVAW is defined more broadly to include expressions of or the promotion of misogyny, then statutory intervention will likely be necessary. This was among the aims of Recommendation 13 of the Independent Review of Hate Crime Legislation in Scotland: Final Report (Justice Directorate 2018): ‘Stirring up of hatred offences should be introduced in respect of each of the protected characteristics including any new protected characteristics.’ The Report recommended that gender be recognised as a protected characteristic with regard to hate crime (Chapter 4.1). Additionally, as making the demonstration of misogyny a recognised aggravating factor would likely accelerate positive change, the language of Recommendation 9 was as follows:

Where an offence is committed, and it is proved that the offence was motivated by hostility based on gender, or the offender demonstrates hostility towards the victim based on gender during, or immediately before or after, the commission of the offence, it would be recorded as aggravated by gender hostility. The court would be required to state that fact on conviction and take it into account when sentencing.

The changes would ‘form part of an effective system to prosecute online hate crime and hate speech’ (ibid, Executive Summary). The recommendations were not included in the final version of the Hate Crime and Public Order (Scotland) Bill (67B). However, the Misogyny and Criminal Justice in Scotland Working Group (MCJSWG) was established to consider them; the working group is to report by February 2022 (MCJSWG 2021). The battle for statutory change continues (Brooks 2018).

 

Comments

Amnesty International UK (2017) is the most reliable secondary source used for the essay. The data are clearly presented, with expert commentary interspersed with the figures. The content is organised with appropriate headings. It is directly relevant. It quantifies the extent of OVAW, the psychological impact of online abuse, and satisfaction with responses the reporting of abuse. The source is objective. Data (survey results, interview transcripts, expert opinion) are presented without author comment. The author’s opinion is stated only in the discussion/conclusion. That said, Amnesty International is an advocacy organisation.

The methodology appears sound. A data weighting technique was used to ensure that samples were representative. The survey was conducted by Ipsos MORI, which has an established reputation. Although the description of the methods was rather brief, the article was intended for a general audience. Nonetheless, an appendix providing additional information and perhaps supplementary tables would have been welcome. Expert opinion was provided by Laura Bates, founder of the Everyday Sexism Project. The discussion was also informed by Women’s Aid. Finally, the article is relatively timely, given the paucity of research in the area. The survey was conducted in 2017. The Economist’s report is more recent but is less in-depth.

Two issues may be concerning. First, Amnesty International is known for its field work. Its research is generally qualitative (and of high quality) rather than quantitative. However, the organisation is relatively well-funded, and it has numerous people volunteering to assist. The second issue is related to respondent satisfaction with responses to their reporting of abuse. Respondents were most satisfied (~33%) with the response of police. The finding is directly opposite that reported by Lewis et al. In their study, respondents were least satisfied with the police response. Their survey was conducted only two years earlier. Additional research may be warranted.

 

References

Articles

Amnesty International UK ‘Online abuse of women widespread in UK’ (2017) https://www.amnesty.org.uk/online-abuse-women-widespread

Barker K and Jurasz O ‘Online Violence Against Women: The Limits & Possibilities of Law’ (2018) Stirling Law School and Open University Law School

Barker K and Jurasz O ‘Text-Based (Sexual) Abuse and Online Violence Against Women: Toward Law Reform?’ in The Emerald International Handbook of Technology Facilitated Violence and Abuse (Emerald Publishing Limited 2021)

Brooks L ‘Scotland Declines to Introduce Misogynistic Harassment Law’ (2018). The Guardian https://www.theguardian.com/society/2018/may/31/scotland-declines-to-introduce-law-for-misogynistic-harassment

Eckert S ‘Fighting for Recognition: Online Abuse of Women Bloggers in Germany, Switzerland, the United Kingdom, and the United States’ (2018) New Media & Society 20(4)

European Institute for Gender Equality ‘Cyber Violence Against Women and Girls’ (2017) https://www.stoponlineviolence.eu/wp-content/uploads/2020/08/EIGEcyber_violence_against_women_and_girls.pdf

Glitch UK & End Violence Against Women Coalition ‘The Ripple Effect: COVID-19 and the Epidemic of Online Abuse’ (2020) https://www.endviolenceagainstwomen.org.uk/wp-content/uploads/Glitch-and-EVAW-The-Ripple-Effect-Online-abuse-during-COVID-19-Sept-2020.pdf

Harbinja, E ‘U.K.’s Online Safety Bill: Not That Safe, After All?’ (2021) The Lawfare Institute https://www.lawfareblog.com/uks-online-safety-bill-not-safe-after-all

Hunter R, McGlynn C & Rackley E ‘Feminist Judgments: An Introduction’ in R Hunter, C McGlynn and E Rackley (eds) Feminist Judgments: From Theory to Practice (Hart Publishing 2010)

Lewis R, Rowe M, Wiper C ‘Online Abuse of Feminists as an Emerging Form of Violence Against Women and Girls’ (2017) British Journal of Criminology 57(6)

The Economist Intelligence Unit ‘Measuring the Prevalence of Online Violence Against Women’ (2020) The Economist https://onlineviolencewomen.eiu.com/

Cases

Chabloz v Crown Prosecution Service [2019] EWHC 3094 (Admin)

Chambers v DPP [2013] 1 WLR 1833

DPP v Kingsley Anthony Smith [2017] EWHC 359 (Admin)

R v Nimmo and Sorley (24 January 2014) Westminster Magistrates’ Court https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Judgments/r-v-nimmo-and-sorley.pdf

R v Nunn (29 September 2014) City of London Magistrates’ Court

R v Viscount St Davids (11 July 2017) Westminster Magistrates’ Court

Legislation

Draft Online Safety Bill (CP 405) ISBN 978-1-5286-2563-0 from https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/985033/Draft_Online_Safety_Bill_Bookmarked.pdf

Communications Act 2003 c 21

Hate Crime and Public Order (Scotland) Bill SP Bill 67B https://www.parliament.scot/-/media/files/legislation/bills/current-bills/hate-crime-and-public-order-scotland-bill/stage-3/bill-as-amended-at-stage-3.pdf

Malicious Communications Act 1988 c 37

Other sources

Justice Directorate (Scottish Government), Independent Review of Hate Crime Legislation in Scotland: Final Report ­(31 May 2018) https://www.gov.scot/publications/independent-review-hate-crime-legislation-scotland-final-report/

Scottish Government, ‘Misogyny and Criminal Justice in Scotland Working Group: Remit’ (30 July 2021) https://www.gov.scot/publications/misogyny-and-criminal-justice-in-scotland-working-group-remit/

Secretary of State for Digital, Culture, Media and Sport and Secretary of State for the Home Department, ‘Online Harms White Paper Consultation Outcome’ (15 December 2020) https://www.gov.uk/government/consultations/online-harms-white-paper/online-harms-white-paper

Secretary of State for Digital, Culture, Media and Sport and Secretary of State for the Home Department, Online Harms White Paper (Cm 354). https://www.gov.uk/government/consultations/online-harms-white-paper/outcome/online-harms-white-paper-full-government-response

 

Wednesday, 23 June 2021 14:58

Will the court call a witness (for the defence)?

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It's unlikely. In R v LS (2021 ONSC 4429), the defence was looking forward to cross-examining a witness. The Crown changed its mind about calling her. The resourceful defence, relying on R v Finta (1994 SCC 129), asked the Court to call the witness.

The Court decided the circumstances were "very far removed" from those of Finta:

In our case, it is not at all necessary for this Court to call A.C. as a witness at trial.  The defence is perfectly capable of doing so.  In fact, the defence has the fortunate assurance of knowing that A.C. cannot easily resile from the evidence that the defence wants to elicit at trial because I am told that the said evidence is contained, expressly, in the statement that she gave to the police.  Hence, the full toolkit will be available to Mr. Edgar, experienced defence counsel, including sections 9(1) and 9(2) of the Canada Evidence Act, RSC 1985, c C-5, as amended, if necessary. (23)

I admit, the title is a bit of an exaggeration. Detainees have the right to counsel, and police have a positive duty to implement this right. However, the detainee also has duties. In R. v. Sivalingam, 2019 ONCJ 239, Schwarzl, J. provided a good overview of the principles involved. The decision has been cited dozens of times throughout Canada though not, as of June 2021, by a higher court.

[40.]         First, where the police assist the detainee or control the means of exercising his rights to counsel, the police must be reasonably diligent, which is the same standard to which the detainee is held if he was implementing his rights on his own:  R. v. Wilding, 2007 ONCA 853 (CanLII), [2007] O.J. No. 4776 (C.A.); R. v. Vernon2015 ONSC 3943 (CanLII), [2015] O.J. No. 4157 (S.C.J.), leave to appeal refused 2016 ONCA 211; R. v. O’Shea, [2019] O.J. No.  1178 (S.C.J.).

[41.]         Second, while police must be reasonably diligent in assisting the detainee in exercising his rights to counsel, they are not required to exhaust all reasonable means for the detainee to speak with a lawyer: R. v. Winterfield, 2010 ONSC 1288 (CanLII), [2010] O.J. No. 952 (S.C.J.) ¶ 46 – 67R. v. Sharma, [2004] O.J. No. 2991 (S.C.J.).

[42.]         Third, having consideration for the circumstances of each case, the test is not whether the police could or should have done more, but rather whether the police provided the detainee with the necessary information and assistance to allow him to exercise his rights:  R. v. Gentile, [2008] O.J. No. 3664 (S.C.J.) at ¶ 24; R. v. Blackett, [2006] O.J. No. 2999 (S.C.J.) at ¶ 23 – 24, and 29; R. v. Antoninas, 2014 ONSC 4220 (CanLII), [2014] O.J. No. 5226 (S.C.J.) at ¶ 93; and R. v. Vernon, supra.

[43.]         Fourth, the detainee is required to be reasonably diligent in the pursuit of his rights:  R. v. Leclair and Ross (1989), 1989 CanLII 134 (SCC), 46 C.C.C. (3d) 129 (S.C.C.) at p. 135; R. v. Littleford, 2001 CanLII 8559 (ON CA), [2001] O.J. No. 2437 (C.A.); R. v. Richfield (2003), 2003 CanLII 52164 (ON CA), 178 C.C.C. (3d) 23 (Ont. C.A.); R. v. Clarke, 2005 CanLII 15452 (ON CA), [2005] O.J. No. 1825 (C.A.) at ¶ 31-33; R. v. Van Binnendyk, [2007] O.J. No. 2899 (C.A.).

[44.]         Fifth, where a detainee wants to call a specific lawyer or a third party to access counsel, he has a duty to tell the police who he wants to call and why:  R. v. Williams, [2014] O.J. No. 2559 (C.A.) at ¶ 39; R. v. Johnston (2004), 2004 BCCA 148 (CanLII), 183 C.C.C. (3d) 157 (B.C.C.A.); R. v. Antoninas2014 ONSC 4220 (CanLII), [2014] O.J. No. 5226 (S.C.J.); R. v. Cheema, 2018 ONSC 229 (CanLII), [2018] O.J. No. 121 (S.C.J.) at ¶ 31; R. v. Mumtaz, [2019] O.J. No. 229 (S.C.J.) at ¶ 25 – 28.

[45.]         Sixth, unless the detainee expresses to the police dissatisfaction with the legal advice received, he is not entitled to Charter relief:  R. v. Neziol, [2001] O.J. No. 4372 (S.C.J.); R. v. Kumarasamy, [2002] O.J. No. 303 (S.C.J.); R. v. Cairns, 2004 CanLII 17588 (ON CA), [2004] O.J. No. 210 (C.A.); R. v. Burley (2004), 2004 CanLII 9437 (ON CA), 181 C.C.C. (3d) 463 (Ont. C.A.); R. v. Clarke, supra at ¶ 31- 33; R. v. Traicheff, [2008] O.J. No. 4361 (S.C.J.), aff’d [2010] O.J. No. 5355 (C.A.); R. v. Shoker, [2016] O.J. No. 4563 (S.C.J).

On the facts, the court found that the Defendant had not demonstrated that it was more likely than not that the police breached his right to counsel.

A court may decide to grant an order of specific performance if it is persuaded that an award of damages only would be unjust. However, this a necessary but not a sufficient condition. This paper considers case law and conflict minimisation.

The question in Evans Marshall & Co. Ltd v Bertola SA [1973] 1 WLR 349 (379H) was, ‘Is it just, in all the circumstances, that a plaintiff should be confined to his remedy in damages?’ General principles are outlined by Pearce and Barr (2020 533–46). Courts order specific performance to avoid ‘encouraging’ the breaking of a contract. In Decro-Wall International SA v Practitioners in Marketing [1971] 1 WLR 361, the defendant had worked to create a market for the claimant’s goods. The claimant apparently found a distributor it preferred and argued that the defendant’s late payments were a repudiation of their agreement. The court stated: ‘Damages in such a case are very difficult to prove and I do not believe that they would by themselves be an adequate remedy’ (371–).

However, Decro-Wall may have been decided differently. Difficulty in valuating damages is not a reason to award specific performance (Zinc Cobham 1 Ltd v Adda Hotels [2018] EWHC 1025 (Ch)), and courts avoid ‘creating oppression caused by the defendant having to do things under threat of proceedings for contempt’ (Co-operative Insurance Society Ltd v Argyll Stores ([1997] UKHL 17).

Specific performance is considered an ‘exceptional’ remedy and is not ordered where common law damages are adequate. Indeed, in Co-operative, it was argued that it may be refused even when damages are not an adequate remedy. The quasi-criminal enforcement mechanism, punishment for contempt, moderates the court’s discretion. ‘Specific’ performance entails an assessable result.

Circumstances must sometimes be ‘very’ exceptional as ‘the purpose of the law of contract is not to punish wrongdoing but to satisfy the expectations of the party entitled to performance’ (Co-operative). In VTB Commodities Trading DAC v JSC Antipinsky Refinery [2020] EWHC 72 (Comm), the claimant prepaid nearly €195 million for oil but learned the refinery was instead delivering oil elsewhere. VTB obtained an injunction in arbitrations. The High Court lifted the injunction. The defendant was double selling its product, but equitable relief is unjustified ‘even where the seller is dishonest in taking prepayment and has sold its entire production to a third party’ (81).

The minimum condition for an order of specific performance is that the innocent party has a legitimate interest beyond financial compensation (Cavendish Square Holding BV v Talal El Makdessi (Rev 3) [2015] UKSC 67 at 30). MacMahon (2018) argues that ‘self-interested exchange relationships often contain the seeds of conflict, and that the best hope for legal and social institutions is to manage the conflict’ (272–3). MacMahon suggests that courts should enforce contracts as agreed but that conflict minimisation should be imperative. Specific performance can prolong a dispute (or ‘a continuing hostile relationship’ Co-operative) – when the aim should be to end the dispute.

AB v. CD [2014] EWCA Civ 229 discussed a contract with a limitation clause involving the adequacy of damages as a remedy for a breach. The court found that an agreement regarding damages did not constitute an agreed price to permit breach of the contract. ‘The primary obligation of a party is to perform the contract. The requirement to pay damages in the event of a breach is a secondary obligation’; the court argued that equitable relief would reflect ‘the substantial justice of the situation’ (27). (It is perhaps interesting that ‘justice’ here apparently required the qualifier.)

Parties to a contract can include performance clauses. However, courts may not enforce these either (Quadrant Visual Communications Ltd v Hutchison Telephone (UK) Ltd [1991] 11 WLUK 378). MacMahon asserts that courts retain the discretion to deny specific performance ‘to put an end to a conflict-ridden contractual relationship’ (288).

Doctrine was discussed in Yaxley v. Gotts & Anr [1999] EWCA Civ 3006. The court decided that the doctrine guiding the statute made an oral contract for real property unenforceable but not void. Under the heading of ‘The public policy principle’, the judgement referred to various authorities, but the contexts were deemed too varied. Ultimately, the court found that the doctrine of joint enterprise and that of constructive trust overlapped and thus ordered Gotts to perform.

In a discussion of the sale of land, Davies (2018) notes that in the past, orders to perform were made only to the vendor; because the vendor wanted only the purchaser’s money, ‘he should be limited to remedies at law and specific performance should not be awarded’ (330). However, purchasers may now be ordered to follow through with a purchase. Davies speculates that an emphasis on mutuality is responsible (a remedy available to the purchaser should also be available to the vendor). Common law damages better protect parties’ freedom of action and autonomy since parties may change their minds (327). Nevertheless, Davies argues that courts should ignore developments elsewhere (e.g. Canada) and continue to order specific performance in contracts concerning land.

Chattel which is ‘intrinsically valuable’ (Garcia v De Aldama [2002] EWHC 2087 (Ch)) is susceptible to claims for specific performance. As for what courts mean when they refer to ‘value’ in claims of this nature, one might be required to look to aesthetics or perhaps anthropology (Graeber 2001).

Even where a statute specifically provides for the availability of specific performance, difficulties arise, as Jan v Torrance [2002] EWCA Civ 431 illustrates. The Court of Appeal allowed an order for repairs but, arguably for better conflict management, remitted the matter to the county court to sort out. (Pearce and Barr refer to Consumer Rights Act 2015 s 58, but a citation of this section has yet to be reported.)

An assumption of Marxist theory of law is that ‘parties to capitalist exchange relationships are inherently antagonistic (MacMahon n15). Arguments against equitable relief may be motivated by the desire to minimise conflict, which, for MacMahon, is ‘part of what it means […] to do justice’ (298).

 

References

Books

Pearce, R and Barr, W (2020) ‘Chapter 23 - Specific Performance’ in Equity, Trusts and Land Law 4th ed, Oxford University Press.

Graeber, D (2001) Toward an Anthropological Theory of Value: The False Coin of Our Own Dreams, Palgrave Macmillan.

Articles

Davies, PS (2018) ‘Being Specific About Specific Performance’ CPL 4 pp 324–338.

MacMahon, P (2018) ‘Conflict and Contract Law’ OJLS 38(2) pp 270–298.

Cases

AB v CD 153 [2014] EWCA Civ 229, [2015] WLR 771.

Cavendish Square Holding BV v Talal El Makdessi (Rev 3) [2015] UKSC 67, [2015] 3 WLR 1373.

Co-operative Insurance Society Ltd v. Argyll Stores [1997] UKHL 17, [1997] 2 WLR 898.

Decro-Wall International SA v Practitioners in Marketing [1971] 1 WLR 361, [1971] 2 All ER 216.

Evans Marshall & Co. Ltd v Bertola SA [1973] 1 WLR 349, [1973] 1 All ER 992.

Garcia v De Aldama [2002] EWHC 2087 (Ch), [2002] 10 WLUK 323.

Jan & Anor v Torrance [2002] EWCA Civ 431, [2002] WL 1876255.

Quadrant Visual Communications Ltd v Hutchison Telephone (UK) Ltd [1991] 11 WLUK 378, [1993] BCLC 442.

VTB Commodities Trading DAC v JSC Antipinsky Refinery [2020] EWHC 72 (Comm), [2020] WLR 1227.

Yaxley v Gotts & Anr [1999] EWCA Civ 3006, [1999] 3 WLR 1217.

Zinc Cobham 1 Ltd v Adda Hotels [2018] EWHC 1025 (Ch) [2018] WL 02048910.

Legislation

Consumer Rights Act 2015 c 15.

 

 

 

 

 

 

 

 

 

 

 

Friday, 26 June 2020 06:33

What future for proportionality?

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Human Rights Act 1998 (HRA 1998) has numerous enemies. Some of them have formed a government which controls (or at least directs) a majority in the Commons. Though the government which enacted it did not intend the Act to be an innovation in constitutional law (Loveland 2018 521), the highest courts quickly recognised its constitutional importance.  Indeed, a recognition of its (present) integral status is implied by the government’s promise to establish a ‘Constitution, Democracy and Rights Commission’ (Law Society 2019). While there is no denying the impact of the Act especially on the rights of individuals, its precarity  suggests describing it as constitutional would be premature and even wistful.

In a discussion of Quila  ([2011] UKSC 45) and proportionality as a ground for review, Loveland suggested that HRA 1998 ‘altered the balance of power between the different branches of the government’ (579). Restated, HRA 1998 altered the balance of power between the judiciary and the executive. This obviously impacted the constitution. With Wilson LJ’s ‘ten question’ methodology, the Court was in effect instructing the government on how to draft policy . However, it soon backed away from such overt ‘activism’.

In Rajavi ([2014] UKSC 60 para 29), Sumption LJ  remarked that

traditional notions of the constitutional distribution of powers have unquestionably been modified by the Human Rights Act 1998. In the first place, any arguable allegation that a person’s Convention rights have been infringed is necessarily justiciable. Section 6 of the Act requires public authorities, including the courts, to give effect to those rights.

This requirement arguably prompted the emergence or, as Loveland put it, the (re‑)emergence of the principle that certain rights are ‘fundamental’ and, presumably, constitutional. In the same judgment, Neuberger LJ opined that the ‘Act for the first time formally introduced fundamental rights into the domestic law of the United Kingdom’ (56). Domestic law is common law. 

In Pham ([2015] UKSC 19), Sumption resisted identifying particular rights as fundamental and elaborated on the standard of review appropriate for a rights-related matter. He emphasised (para 107) the ‘significance’ of the right interfered with and that the court must be ‘competent’ to assess the balance the decision-maker made. His opinion, described by Loveland as providing a ‘sliding scale’ approach, added some legal certainty to substantive review and incorporated elements of proportionality into the common law.  

In Rajavi, Sumption (para 29) continued:

… the jurisprudence of the European Court of Human Rights calls for a standard of review of the proportionality of the decisions of public authorities which is not only formal and procedural but to some extent substantive. 

‘To some extent’: this is a telling modifier. Proportionality was repeatedly considered by the highest courts – but, as Loveland (581) observed, it was not adopted as a ground outside of statutory (ie HRA 1998 and ECHR) review.

Proportionality has its critics (eg Tsakyrakis 2009), but it has much to recommend it. It has been thoroughly developed in European jurisprudence. Perhaps unfortunately, outside statutory review it has not replaced irrationality. The current government apparently intends to replace HRA 1998 and to take the United Kingdom out of the Convention. Deference to the common law – and to the doctrine of deference itself – will likely result in the loss of the principle of proportionality from judicial review.  

Sumption in Rajavi (para 31) argued that

the obligation of the courts to adjudicate on alleged infringements of Convention rights does mean that the traditional reticence of the courts about examining the basis for executive decisions in certain areas of policy can no longer be justified on constitutional grounds.

Will this reticence return? Allan (2006 671–672) observed that ‘When individual rights have required protection, neither the formal source of the power in question nor its intrinsically discretionary character have proved impenetrable barriers to judicial scrutiny’. HRA 1998 facilitates this scrutiny in important ways. Following Quila, however, the Court arguably returned to deference.

The doctrine of deference makes the barriers identified by Allan more formidable than they need be. Allan (679–680) attacked it thus:

Even when a more ‘‘intensive’’ form of appraisal is permitted, as when the curtailment of rights is subjected to review for proportionality, the roles of court and public authority remain distinct as long as the latter retains an element of discretion in its pursuit of the public interest. It follows that there is no role for any distinct doctrine of deference to fulfil: its invocation above and beyond the ordinary constraints inherent in judicial review amounts to an abdication of the judicial role and a failure to protect legal rights. Either such a doctrine restates what is already implicit in the ordinary mechanisms of judicial review, or it dictates judicial abstinence from the functions reposed in the courts by the rule of law.

Loveland agreed. Elaborating on Allan’s argument, Loveland posited that the courts have used the notion of deference to ‘relinquish their traditional constitutional responsibilities’ (554–555). The courts blurred the distinction between hierarchy and function. The legal meaning of a legislative measure should be determined by the courts and not the executive body which published it. The courts have been provided ample opportunity to broaden proportionality (simply, that any infringement be ‘necessary in a democratic society’) as a ground of review.

Bringing rights 'home’  afforded the courts the opportunity fully to incorporate proportionality into the common law. Their doing so should have surprised no one – after all, the United Kingdom helped draft the Convention. The highest court chose not to do so.  If the highest courts will not innovate, lower courts, try as they might, cannot.

The constitution does not offer a means to legally entrench human rights, however ‘fundamental’ these may be. Fortunately, HRA 1998 has contributed to the common law. Courts were perhaps aware that the Act was unlikely to survive and tentatively incorporated features of proportionality. Their understanding of deference – to both Parliament and the common law – allowed them to do no more. Battles will continue on the traditional grounds for the foreseeable future.

 

References

Book

Loveland, I. (2018) Constitutional Law, Administrative Law, and Human Rights, 8th ed, Oxford U P.

Articles

Allan, T.R.S. (2006) ‘Human rights and judicial review: a critique of “due deference”’, Cambridge Law Journal, vol 65(3) pp 671–695.

The Law Society (28 November 2019) ‘General election 2019: summary of party manifestos’ [Online]. Available at www.lawsociety.org.uk/policy-campaigns/articles/general-election-2019-party-manifesto-summaries (Accessed 4 March 2020).

Tsakyrakis, S. ‘Proportionality: an assault on human rights?’ (2009) International Journal of Constitutional Law, vol 7(3), pp 468 – 493.

Cases

Pham (Appellant) v Secretary of State for the Home Department (Respondent) [2015] UKSC 19, [2015] 1 WLR 1591

R (on the application of Quila and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant) [2011] UKSC 45, [2012] AC 621

Lord Carlile of Berriew QC, & Ors, R (on the application of) v Secretary of State for the Home Department [2014] UKSC 60, [2014] WLR(D) 479 (Rajavi)

Legislation

Human Rights Act 1998 c 42

International instruments

European Convention on Human Rights (‘Convention’, ECHR)

The purpose of this essay is to explore the role played by the rule of law in the constitution of the United Kingdom. The essay examines a recent Supreme Court ruling and asks whether the ruling was based on a substantive conception of the rule of law and whether the ruling was correct. Theory proposed by Richard Dworkin and others is interpreted and applied. An uncodified constitution is particularly amenable to the rule of law; because the rule of law is underdefined, courts have occasional opportunity to shape it, and thus the constitution, according to a recognized political model.
 
Sunday, 29 September 2019 21:49

Limits to Cross-Examination

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As cross-examiner, you can (and should) be vigorous and thorough. It is not "abusive" to challenge a witness on unpleasant things, for example, their biases or their criminal record, as long as your question is asked in good faith and is not intended to mislead the witness. But there are limits.

Tuesday, 17 September 2019 18:03

Essential Elements of the Tort of Negligence

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The field of negligence is delineated by considerations of whether it is appropriate, or fair, for a duty of care to be imposed. Modern courts have worked to define and elaborate this duty. In so doing, they have sought to define and describe the essential aspects of the duty of care. This article examines the features of the tort of negligence, and the tests and rules that have developed and refined the tort, by applying them to a hypothetical scenario involving an automobile accident.

 
Tuesday, 10 September 2019 15:09

Damage Awards Available in Small Claims Court

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Courts have identified six types of damages that a person (or corporation) can claim as compensation for loss or injury. Which types might Small Claims actually award a successful plaintiff? Here is a break down.

Tuesday, 03 September 2019 17:39

Rules of the Ontario Court - Steps of a Trial

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If you are charged with committing a provincial offence (POA) in Chatham-Kent, your trial will be held at the Ontario Court of Justice. If you are self-represented, be sure to review the Rules. The most important of these, as they pertain to a trial, are summarized below.

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