ALBA Conference 2019: A Review

7 October 2019 by Conor Monighan

This post is the first in a series of five reports by Conor Monighan from this year’s conference held by the Administrative Law Bar Association. We will be publishing the next four posts over the next month every Monday.

This year’s ALBA conference featured an impressive list of speakers. There were talks from a Supreme Court judge, a former Lord Chancellor, top silks, and some of the best academics working in public law.

The conference covered a number of practical and substantive topics. The highpoint was an address given by Lord Sumption, in which he responded to criticism of his Reith Lectures. This post, together with those that follow, summarises the key points from the conference.

Keynote speech: Lady Arden of Heswall – ‘Human rights challenges in the digital world’

Introduction: The ‘living instrument’ doctrine

The theme of Lady Arden’s speech was ‘evolutive interpretation’. This term describes the method of interpretation used by the European Court of Human Rights (‘ECtHR’) to continually update the European Convention of Human Rights (‘ECHR’). Her Ladyship argued that we should not underestimate Britain’s role in developing the concept of evolutive interpretation, and that it is an invaluable tool to secure positive change.

Lady Arden began with Edwards v Attorney General of Canada. In this case the Privy Council decided that the word ‘persons’ in s.24 of the British North America Act 1867 included women. This meant women were eligible to sit in the Canadian Senate.

When approaching the Act, Lord Sankey (Lord Chancellor) gave it a “large and liberal interpretation” and described it as having planted “a living tree capable of growth and expansion within its natural limits”. In doing so, his Lordship created a new approach to interpretation.

The ‘living tree doctrine’ has since taken root in Canada, where it is used to construe the nation’s Constitution. Another offshoot, Lady Arden suggested, may be found in Europe, where the ECHR is treated as a ‘living instrument’.

Lord Sankey also made another important contribution to modern day human rights law. In 1940, the Daily Herald (since relaunched as The Sun) and the National Peace Council set up a committee to identify fundamental human rights. The result was the ‘Sankey Declaration of the Rights of Man’, which identified eleven fundamental rights. The Sankey Declaration ultimately helped shape the ECHR, demonstrating the role played by British lawyers and British people in the Convention’s creation.

This might provide a partial answer to Lord Sumption’s recent comment in Prospect magazine that the ‘living instrument’ principle is applied in a way which is ‘immune from the democratic process’.

An example of the Convention working as a ‘living instrument’: digital rights

Lady Arden suggested that reading the ECHR as a living instrument has helped protect freedom of expression, offline as well as online. As evidence, she cited four cases.

The first was Satakunnan Markkinapörssi Oy And Satamedia Oy v Finland available here). Under Finish law, everyone’s tax returns are open to public viewing. However, whilst anyone can examine at another’s tax documents, it is illegal to take an electronic copy. In an extension of this rule, two companies had been prohibited from publishing the tax data of 1.2 million citizens through a newspaper and text-messaging service. Finland’s Supreme Court held that there were good reasons for preventing this distribution of personal data, and that releasing intimate information en masse was not justified. The ECtHR later concurred, demonstrating how privacy rights can be updated for the digital age.

The second authority was Khadija Ismayilova v. Azerbaijan. Here, it was alleged that the state had run a smear campaign against Ms Ismayilova, who is an investigative journalist. The ECtHR found that the state had failed to run an effective investigation into the crime, and that Article 10 required it to take positive steps to protect Ms Ismayilova’s private life. This demonstrates that it is unacceptable to use the internet to harass journalists, extending the reach of Article 10 to meet modern-day challenges.

The third authority relied upon by Lady Arden was a particularly famous one: Pussy Riot v Russia. As readers will doubtless recall, Pussy Riot is a feminist punk band that gave impromptu performances in which they criticised the Russian state. The applicants were arrested shortly after performing in Moscow’s Christ the Saviour Cathedral, imprisoned, and footage of the protest was banned. The ECtHR ruled that this amounted to a breach of Article 10.

The fourth, and final, case was that of Big Brother Watch v UK. Here, the ECtHR found that the UK’s previous legislative basis for surveillance was incompatible with Article 8 & 10 ECHR. The court ruled that whilst bulk interception of data is not itself unlawful, there were inadequate safeguards under the statutory regime. It seems likely that the ruling will be pertinent to the new Investigatory Powers Act 2016 (and a challenge to that Act is currently being considered by the Grand Chamber).

Taken together, these four cases provide powerful evidence of the ability of the ECHR to evolve over time.

Digital Rights and the Future

Lady Arden suggested that a number of issues still remain in relation to digital rights:

• How to protect free speech on the internet. Following Google v Spain, internet platforms must take down inaccurate information about individuals. This may produce a conflict between internet platforms and citizens’ rights.
• Lady Arden described the large internet companies as having become the “gatekeepers to the internet”, forming “a Supreme Court of Google”. It remains to be seen how this near-monopolistic system can be fixed.
• Jurisdictional issues arise in the context of the internet, particularly if a company which supplies services is based in a different county. A good example of this has been provided recently. Following the tragic murder of Grace Millane, who was backpacking in New Zealand, Google inadvertently released the name of the man accused of killing her in a newsletter. Despite a ‘suppression order’, Google initially refused to act over the breach. Following political pressure, Google eventually responded. This suggests that if judges issue ‘take-down orders’, they may be ineffective. Lady Arden indicated that a ‘results test’ may be needed, enabling court orders to operate where a company provides internet services to UK citizens.

‘Equality and Public Law’ – Chair:  Lord Justice Bean; Speakers: Katherine Apps and Elizabeth Prochaska, Raj Desai

The Equality Act In Judicial Review Proceedings (Katherine Apps)

Ms Apps argued that the Equality Act 2010 (“EqA”) has been underused. She sought to persuade the audience of its value and flexibility.

Use in Judicial Review Proceedings

Ms Apps suggested there are two ways the EqA can be used in judicial reviews. The first is a claim that a body has breached the EqA. The second is a failure to comply with the public sector equality duty. Section 149 EqA requires public authorities to “have due regard” to the need to secure equality.

Why Substantive Equality Claims Are Useful

Ms Apps argued that there were five reasons why substantive equality claims are more attractive than are commonly thought:

1. They target the merits directly: This is useful because it means decision makers cannot simply re-make the same decision (having corrected any procedural errors). A example of the power of such claims is provided by the recent challenge to a coroners’ ‘cab rank’ burial policy, in which it was held this practice is simply unlawful.
2. They utilise the potential of indirect discrimination claims: These claims can be powerful, as shown by Essop (a challenge, inter alia, to the mechanism for promotions in the civil service).
3. No/ limited margin of appreciation: The test for justifying discrimination is narrower than the test of proportionality contained within the ECHR. Indeed, some cases have suggested there is no margin under the domestic justification test (cf: Hardy & Hansons Plc v Lax [2005] ICR 1565 at [12]).
4. Substantive EqA claims can rely on EU law. This is helpful because EU law can require courts to disapply primary legislation.
5. Finally, it may be possible to secure funding for the Equality and Human Rights Commission for any litigation involving equality issues.

The Public Sector Equality Duty: Elizabeth Prochaska

In a candid talk, Ms Prochaska (Legal Director at the Equality and Human Rights Commission) argued that enforcement of the Public Sector Equality Duty (“PSED”) has stunted its development. She submitted that the PSED is currently viewed as a procedural, bureaucratic measure to be complied with, rather than helping secure substantive change.

This is because the PSED merely requires bodies to ‘have regard’ to their equality duties, rather than actually achieving them. In the ‘cab rank’ coroners’ case, for example, the court ruled that the coroner had demonstrated due regard to her duty. However, Ms Prochaska stated, the court went on to find that the coroner hadn’t actually understood the legal definition of discrimination.

The weakness of the PSED is perhaps a result of the way in which claims are made. The procedural focus of judicial review inevitably means courts focus on deference, rather than outcome. Interestingly, in R. (on the application of Bapio Action Ltd) v Royal College of General Practitioners Mr Justice Mitting suggested (obiter) that s.149 does not allow authorities to simply have regard to the need to eliminate discrimination, but then choose to do nothing about it.

The situation can also be explained by the financial restraints imposed on the Equality and Human Rights Commission. Enforcement of the duty was intended to take place through the Commission, rather than litigation. s.31 Equality Act 2006 allows the Commission to assess the extent to which the PSED has been complied with, but has only been invoked once (in relation to George Osborne’s budget). Instead, the Commission has chosen to use its resources to fund, and act, in litigation.

Ms Prochaska finished by expressing concern at the impotency of the PSED. Although a discriminatory measure can be challenged on a substantive ground after it has been implemented, this is only possible at a great financial cost and arguably comes too late.

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Ms Apps’ full paper, of which this is a summary, is available here.

This post merely reflects the author’s personal interpretation of what was said at the conference. The opinions expressed do not necessarily reflect the views of ALBA, conference attendees, or the UKHRB.

A number of papers from the conference are available here.