Written evidence from CARE for Scotland (HRA0007)

1. CARE for Scotland is pleased to submit evidence to the Committee in relation to its inquiry into 20 years of the Human Rights Act. We are a Scottish charity mainly engaging with the Scottish Parliament and the Scottish Government, but also on occasions with Westminster. Earlier this year we submitted both written and oral evidence to the Equalities and Human Rights Committee of the Scottish Parliament in relation to its inquiry into Human Rights and the Scottish Parliament. Additionally, we are represented on the Reference Group of the First Minister’s Advisory Group on Human Rights Leadership. 

2. CARE for Scotland welcomes this inquiry into 20 years of the Human Rights Act 1998 (the HRA 1998) and the opportunity to make this submission. Our submission focuses on the protection of the HRA 1998 guaranteed rights, including the right to freedom of assembly, association, expression, especially where they refer to the right to freedom of religion or belief. The submission focuses on the recent order made by the Ealing Council outside an abortion clinic, and how those rights are diminished with other legal provisions, and most notably, the Anti-social Behaviour, Crime and Policing Act 2014. The submission argues that the HRA 1998 incorporated rights are not adequately protected and that the Ealing Council order shows how the UK continues to pass legislation that is fundamentally incompatible with the rights that were meant to be adequately protected with the HRA 1998.

3. It should be noted that the 2014 Act does not apply in Scotland and that any attempt by the Scottish Parliament to introduce such restrictions on freedom to manifest religious belief and practice and/or freedom of assembly would most likely be challenged under ECHR with the legislation at risk of being declared incompatible with the ECHR by the UK Supreme Court. 

Introduction

4. The main purpose of the HRA 1998 is to incorporate the European Convention on Human Rights (the ECHR) into the UK domestic legal system. The main aim of the HRA 1998 was to require all public bodies and bodies carrying out public functions to respect and protect human rights enshrined in the ECHR. For example, public bodies, like the local authorities, were meant to respect human rights under the ECHR, and the courts were meant to interpret law in a way that was compatible with the ECHR. Similarly, the Parliament was meant to ensure that any enacted laws are compatible with the ECHR.

5. However, as the below example will show, the HRA 1998 has failed to provide an adequate protection for various basic human rights, whether by way of parliament failing to adequately consider the compatibility of enacted laws with the ECHR or by way of public bodies, like local authorities, failing to respect human rights protections under the ECHR.

6. One of the reasons for this difficulty is the wording of the HRA 1998 which weakens the implementation to the ECHR into the UK domestic legal system. For example, Section 3(1) of the HRA 1998 states that ‘so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.’ This means that the HRA 1998 only requires domestic courts to ‘read and give effect in a way which is compatible’ with the ECHR and only ‘so far as it is possible to do so.’ Such wording prevents the HRA 1998 from being able to become an adequate mechanism to implement the ECHR into the UK domestic legal system. This problem is explained below in relation to a specific case study, the Anti-social Behaviour, Crime and Policing Act 2014 (the 2014 Act), below.

The Anti-social Behaviour, Crime and Policing Act 2014

7. The 2014 Act has come into force on 23 March 2015.

8. Since the introduction of the 2014 Act, some of its provisions have been criticised for constituting a significant attack on several human rights.[1] Indeed, the recent case of the public space protection order (so-called PSPO) imposed by the Ealing Council provides a good example of the shortcomings with the current application and workings of the HRA 1998. Ultimately, the imposed PSPOs infringe upon a litany of human rights that are ordinarily protected under the ECHR (and incorporated into the domestic system by virtue of the HRA 1998).

9. Section 59 of the 2014 Act gives local authorities the power to make PSPOs to ban certain acts, which otherwise do not necessarily amount to criminal offences, within defined geographical areas.

10. A PSPO is an order made under Section 59 of the 2014 Act that states:

“(1)A local authority may make a public spaces protection order if satisfied on reasonable grounds that two conditions are met.

(2) The first condition is that—

(a) activities carried on in a public place within the authority’s area have had a detrimental effect on the quality of life of those in the locality, or

(b) it is likely that activities will be carried on in a public place within that area and that they will have such an effect.

(3) The second condition is that the effect, or likely effect, of the activities—

(a) is, or is likely to be, of a persistent or continuing nature,

(b) is, or is likely to be, such as to make the activities unreasonable, and

(c) justifies the restrictions imposed by the notice.”

11. On 10 April 2018, Ealing Council’s cabinet members implemented a PSPO around an abortion clinic on Mattock Lane, Ealing, and so established the so-called ‘Mattock Lane safe zone’ (Mattock Lane PSPO).

12. The Mattock Lane PSPO prohibits the following activities within the Mattock Lane safe zone:

“i. Protesting, namely engaging in any act of approval/disapproval or attempted act of approval/disapproval, with respect to issues related to abortion services, by any means. This includes but is not limited to graphic, verbal or written means, prayer or counselling,

ii. Interfering, or attempting to interfere, whether verbally or physically, with a service user or member of staff,

iii. Intimidating or harassing, or attempting to intimidate or harass, a service user or a member of staff,

iv. Recording or photographing a service user or member of staff of the Clinic whilst they are in the Safe Zone,

v. Displaying any text or images relating directly or indirectly to the termination of pregnancy, or

vi. Playing or using amplified music, voice or audio recordings.”[2]

13. The Mattock Lane PSPO will expire at 23.59 on 10th April 2021 unless extended.

14. While banning some of the activities listed in the order may be justified as in accordance with the aims behind the 2014 Act, the vague wording of the PSPO is highly controversial. For example, the PSPO defines ‘protesting’ as to include the activities of praying or counselling which goes significantly beyond the ordinary meaning of the word ‘protesting.’[3] The PSPO further relies on the very broad concepts of acts that are intimidating or harassing - which are subjective and not univocally understood.

15. Considering the wording of the PSPO, the human rights significantly limited and adversely affected by the PSPO are the right to assembly and association enshrined in Article 11 of the ECHR[4], the right to freedom of expressions in Article 10 of the ECHR[5], and the right to freedom of thought, conscience and religion in Article 9 of the ECHR.[6]

16. When considering a PSPO, as in accordance with Section 72(1) of the 2014 Act, the local authority “must have particular regard to the rights of freedom of expression and freedom of assembly set out in articles 10 and 11 of the Convention.”

17. Furthermore, in accordance with Section 72(3) of the 2014 Act: “A local authority must carry out the necessary consultation and the necessary publicity, and the necessary notification (if any), before—

(a)making a public spaces protection order,

(b)extending the period for which a public spaces protection order has effect, or

(c)varying or discharging a public spaces protection order.”

18. While prior to introducing the Mattock Lane PSPO, Ealing Council carried out the necessary consultation as per Section 72(3) of the 2014 Act, Ealing Council does not appear to have had particular regard to the rights affected by the PSPO. Of particular note, the wording of the PSPO suggests that the PSPO limits prayers in the area and so affects the right to freedom of thought, conscience and religion in Article 9 of the ECHR which is not listed in Section 72(1) of the 2014 Act.

19. Under the Mattock Lane PSPO, prayer is included as a method of “protesting, namely engaging in any act of approval/disapproval or attempted act of approval/disapproval, with respect to issues related to abortion services.” This is a very broad interpretation of the word ‘protest’ and highly controversial as, if such interpretation of the word is accepted, it could pave the way for a ban on prayer in public spaces and ultimately excessively limit the right to manifest religious belief as enshrined in Article 9 of the ECHR. Prayer and protesting are two different activities and should not be conflated.

20. It is highly controversial to use the power under Section 59 of the 2014 Act to ban a prayer, especially without qualifying what kind of prayer. Does it mean the silent prayer of a single person? The silent prayer of a group of people? The audible prayer of a single person? The audible prayer of a group? The ban of prayers in the area is highly likely in breach of Article 9 of the ECHR as incorporated by the HRA 1998.

21. It is also unclear whether the 2014 Act was designed to deal with questions of religious manifestation, like prayers. Considering the fact that the 2014 Act does not refer to the right to freedom of thought, conscience and religion as per Article 9 of the ECHR, or require local authorities to balance the right, it may be argued that 2014 Act is not meant to be used to ban any aspects of the right to freedom of thought, conscience and religion in Article 9 of the ECHR, including religious manifestation like prayer. If the PSPO was intended to have such effect, Section 72(1) of the 2014 Act would have included the right to freedom of thought, conscience and religion in Article 9 of the ECHR for the purposes of the balance test identified in Section 72(1) of the 2014 Act.

22. The lack of any reference to Article 9 of the ECHR in Section 72(1) of the 2014 Act clearly shows that prayers and other acts of religious manifestation do not fall within the scope of the acts that were intended to be banned with Section 59 of the 2014 Act. Ultimately, Section 59 of the 2014 Act could not ban prayer, namely, an act constituting a form of religious manifestation, without any due consideration by the local authorities to their obligations to uphold the right in Article 9 of the ECHR.

23. Furthermore, it is worth considering that the Mattock Lane PSPO differs significantly from any other PSPOs imposed by Ealing Council. Prior to the Mattock Lane PSPO, Ealing Council made a number of other PSPOs and there are briefly discussed here. The Valetta PSPO targets “burglary and robbery, theft and handling, criminal damage, fly tipping, drug dealing and drug usage, street drinking.”[7] The Southall PSPO bans “anti-social public drinking, loitering in groups and being anti-social, urinating or defecating in public spaces, littering, using illegal drugs or psychoactive substances, loitering outside of business premises during their opening hours in Southall town centre, irresponsible dog ownership in the selected parks in Southall.”[8] The West Ealing PSPO aims to prevent “street drinking, loitering in groups which are engaging in anti-social behaviour, urinating or defecating in public or communal spaces, intoxicated adults using the children’s playground, littering of bottles, cans, and drug paraphernalia, using illegal drugs and psychoactive substances in public spaces.”[9]

24. Indeed, these three PSPOs are exactly the reason for introducing the law in Section 59 of the 2014 Act. However, the Mattock Lane PSPO differs significantly from the three other PSPO and is it questionable whether the PSPO was intended to be used to ban some of the listed activities in the Mattock Lane PSPO. By banning prayers and presenting it as a form of a protest, not only has Ealing Council conflated different issues and presented them alike but is also in breach of its duty to respect human rights as enshrined in the ECHR.

25. It can be argued that the power of local authorities in Section 59 of the 2014 Act is very excessive and creates a risk for the human rights being excessively limited or infringed.

However, the Parliament while enacting the provision, introduced Section 72(1) of the 2014 Act to ensure that local authorities have particular regard to the rights of freedom of expression and freedom of assembly set out in articles 10 and 11 of the Convention and so give effect to the protections under the ECHR.

26. Despite the fact that Section 72(1) of the 2014 does not mention Article 9 of the ECHR, local authorities are under an obligation to respect all human rights, including the protections in Article 9 of the ECHR. By including prayers (covered by Article 9 of the ECHR) as a form of protest (covered by Article 10 of the ECHR) and failing to consider the effect of it on the right to freedom of thought, conscience and religion, Ealing Council is in breach of Article 9 of the ECHR.

27. Despite the fact that the 2014 Act does not apply to Scotland and hence no PSPO under Section 59 of the 2014 Act can be imposed in Scotland, the issue of ‘buffer zones’ has been raised in Scotland. Just recently, the issue of the compatibility of these exclusion zones with human rights has been considered by Edinburgh City Council. A paper on this matter was considered by the South East Locality Committee (the SEL Committee) on 25th June 2018. The paper recommends that the SEL Committee:

“Notes that the legislation used to create a “buffer zone” in England is not applicable to Scotland; and

Notes that legislative powers which may be used in Scotland to deal with the dispersal of public gatherings are police powers which must be used in a proportionate manner.[10]”

28. The SEL Committee has not chosen to seek to introduce a buffer zone in part because the 2014 Act does not apply in Scotland, but also because it is aware that the police must have regard to human rights when seeking to enforce their power of dispersal. Although the SEL Committee report does not address Article 9, it does refer to the Article 11 right to freedom of assembly. Most importantly, it notes that the police must act in a proportionate manner and meet a necessity test. The issue of the need for proportionality and necessity arise also in relation to Article 9. Specifically, the report states that:

“Action is ‘proportionate’ when it is appropriate and no more than necessary to address the issues concerned.”[11]

29. One of the ‘Measures of Success’ stated by the Council is to:

“Allow for peaceful public protest and not take disproportionate action which may infringe upon ECHR Article 11 rights.”[12]

Conclusion

30. The wording used in the HRA 1998 to incorporate the ECHR protections into the UK domestic legal system is weak and hence prevents the HRA 1998 providing a meaningful protection for various human rights. This is clearly visible in the case of the Mattock Lane PSPO, imposed by way of Section 59 of the 2014 Act.

31. The above case shows that the HRA 1998 cannot provide for an adequate protection of the rights enshrined in the ECHR and future changes to the approach may need to be considered to ensure that human rights are adequately protected in the UK. One such change could be to amend the HRA 1998 to strengthen its language and so give full effect to the ECHR human rights protections.

32. However, a more focused solution would be to amend Section 72(1) of the 2014 Act to specify that local authorities must have particular regard to the right to freedom of religion or belief in article 9 of the ECHR (next to the rights to freedom of expression and freedom of assembly set out in articles 10 and 11 of the ECHR), if a PSPO was ever to be used to ban religious manifestation. Alternatively, and considering the unique nature of the right to freedom of religion or belief in Article 9 of the ECHR[13], we argue that it would be much better to amend Section 72(1) of the 2014 Act to incorporate a clear provision that ‘a public spaces protection order shall not be used to ban the right to freedom of religion or belief protected in Article 9 of the Convention.’

7 September 2018