Kate Moss

Football Banning Orders

In this chapter I want to focus on a rather different type of restriction, namely the Football Banning Order which was enacted under the Football (Disorder) Act 2000. I wish to highlight not only the nature of this type of restriction, but also importantly, the way in which it has been implemented and question whether it is another example of imposing what might be called ‘quasi-criminal sanctions’ on people in much the same way as the Anti Social Behaviour Order. Whilst there was a burst of interest regarding the legality of football banning orders around the time of a famous Court of Appeal decision in the case of Gough — which I will consider specifically later in this chapter — this issue has mostly been ignored. However, there is more scope for debate regarding the legality of these types of sanctions and perhaps even to put forward an argument that if any one of these quasi-criminal sanctions are questioned, then all of them would collapse. Whilst currently football banning orders and the way they have been implemented are assumed to be acceptable because of the judgement in Gough I want to highlight the fact that, with the exception of the work of James & Pearson (2006) there has simply not been a full intellectual engagement of the issue.

The Context of the European Convention on Human Rights and the Human Rights Act 1998

This chapter illustrates contemporary European safeguards for Human Rights and Civil Liberties with specific reference to the nature and purpose of the European Convention on Human Rights (ECHR) which took effect in 1953 with the objective of avoiding the atrocities and abuses of human rights that had taken place in World Wars I and II. It does not form part of UK law but has developed as a separate system of jurisprudence with its own institutions and procedures. There has been a clear expectation of compliance with the ECHR since 1953 and currently, a theory of State obligation1 has developed whereby member states have to do more than just be seen to comply. In the UK, the Human Rights Act 1998 gives ‘greater effect’ to Convention Rights in two main ways; first, by making it clear that as far as possible the courts in this country should interpret domestic law in a way that is compatible with Convention Rights and second, by allowing people the right to take court proceedings if they think that their Convention Rights have been, or are going to be, breached. This chapter will also assess the relevance of the legal doctrine of the ‘Margin of Appreciation’ which reflects the ideal that there should be maximum compliance from all parties about the general standards that the convention sets and the relevance of the legal ‘Doctrine of Proportionality’ which is a way of testing whether member states’ actions are compatible with convention standards.

Article 6 and Extraordinary Rendition

This chapter highlights contemporary deviations from Article 6 — the right to a fair trial — as illustrated by cases of extraordinary rendition. Subsequent to the previous UK Government’s attempts in August 2008 to extend the maximum permitted duration of detention without trial in the UK to 42 days, which was discussed in the previous chapter, it assesses allegations of the use of British overseas territories as secret prisons and recent reports by leading media that individuals have been rendered to such locations and held there illegally. This chapter will also contain an analysis of judicial decisions in cases relating to the right to a fair trial in order to assess how far the European Convention on Human Rights and the UK Human Rights Act 1998 prevent contemporary abuses of the ideals of the rule of law and essential civil liberties.

Article 5 and Detention without Trial

This chapter deals specifically with the effectiveness of contemporary legislative safeguards in the forms of the European Convention on Human Rights and the UK Human Rights Act 1998 by specifically undertaking an analysis of judicial decisions in relation to cases brought under Article 5 in order to determine how UK law is being interpreted in relation to this article and whether or not it is compatible with, or is deviating from, these basic libertarian principles. Contemporary and controversial cases such as those involving Khalid el-Masri and Maher Arar will be used to highlight this assessment as will case law such as the Secretary of State for the Home Department v JJ and others [2006] where the respondents successfully challenged the compatibility with Article 5 ECHR, of control orders issued against them. It is necessary to highlight that detention without trial under Article 5, torture under Article 3 and extraordinary rendition and Article 6 cannot easily be discussed separately as in many situations these issues all appear to go hand in hand. There will, therefore, be occasions throughout these chapters where the issues of torture and extraordinary rendition will be mentioned albeit the main focus within this chapter is on the subject of detention without trial. For this reason, I have tried to avoid repetition of materials used in the previous chapter and in the penultimate chapter which follows this.

Article 3 and Torture

The aims of this chapter are to highlight the legal prohibition of torture and to illustrate judicial decisions in cases relating to its prohibition in order to assess how far the European Convention on Human Rights and the UK Human Rights Act 1998 are designed and deployed to prevent contemporary abuses of the ideals of the rule of law and essential civil liberties as enshrined by Article 3 of those statutes. The chapter discusses mechanisms for evading the law on torture and cruel and inhuman or degrading treatment or punishment and the circumstances in which this occurs and highlights such practices around the world. The relevance of human rights law will be assessed, and the effectiveness of legal challenges over the torture and ill-treatment of detainees held by the UK and US abroad will be highlighted as will the current complex moral and ethical dilemmas surrounding its use.

Liberty versus Security

One of the major questions facing contemporary society in the areas of political theory and practice, law, philosophy and human rights is whether there is an acceptable balance between national security needs and the protection of civil liberties. This is an issue which I tackled in my book — Security and Liberty: Restriction by Stealth (2009) — in which I questioned the rights, responsibilities and expectations of individual citizens and the accountability of the organs of the State as well as the lack of interest of academe in becoming truly engaged in this debate. The preface to that book notes that when the writer became interested in crime in the 1970’s, ideas then in the ascendant included the strict circumscription of behaviour properly criminalised, and the corresponding circumscription of properly exercised judicial discretion. Concerning the lengths to which those ideologies have changed (2009: x), If … anyone had predicted that a generation later Guantanamo Bay would be filled with untried people and flights of extraordinary rendition exported prisoners to places convenient for their torture, they would have been thought insane. That the UK Parliament is now haggling not about the principle of detention without trial but how many weeks and months such detention would be allowed to last, is breath-taking.

Historical and Contemporary Deviations from Essential Civil Liberties

In this chapter my aim is to trace some of the landmark historical deviations from the essential principles of civil liberties as established in Chapter 1. For example, those which occurred during World Wars I and II, the Northern Ireland issue and in particular the Pat Finucane case, the relevance of the Tribunal and Inquiries Act 2005 and the emergence of the Diplock courts. I also want to highlight certain contemporary civil liberties issues which have arisen in relation to a number of topical areas. For example, those demonstrated by the case of Liberty and the ICCL (2008) and the Al-Skeini case involving Baha Mousa. The interesting issue here for me is that historically it could be argued that prior to the Convention on Human Rights and of course the UK Human Rights Act 1998, safeguards for preserving the balance between security and civil liberties were somewhat less than they are today. Certainly Waddington (2005) amongst others would probably argue this. The natural result of this — one would guess — would be that contemporary deviations from civil liberties would thus occur less frequently, or when occurring, would give rise to legal cases in which the laws protecting such rights would be reaffirmed. However, I shall demonstrate that both historically and contemporaneously, the use of State force in the name of the protection of security is a common theme in the avoidance, ignoring or sidestepping of many civil liberties issues.

Securing Rights — But Which?

In conclusion, this chapter draws together all the evidence from the preceding chapters. It will raise issues of international norms and legal obligations emanating from them in order to address what tensions exist between national laws and international laws and conventions in situations where national security is seen to be at stake. It will consider the impact of the EU’s new five-year strategy for justice and home affairs and security policy for 2009–2014. These proposals have been set out by the shadowy ‘Future Group’ set up by the Council of the European Union and include a range of highly controversial measures including new technologies of surveillance and enhanced cooperation with the United States of America. This development shows how European Governments and EU policy-makers are pursuing unfettered powers to access and gather masses of personal data on our everyday lives — on the grounds that we can thereby all be safe and secure from perceived ‘threats’. This chapter will suggest that a meaningful and wide-ranging debate regarding the current situation is necessary in order to strengthen British commitments to democracy.

Hart–Devlin revisited: law, morality and consent in parenthood

The debate about law and morality is not new but changing social structures and advances in science, medicine and technology have impacted the decisions courts have to make. Within the fast-changing societies of the 21st century, is judicial decision-making cognisant of these advances and how do the judiciary currently reconcile difficult emergent issues concerning law, science and morality? The dilemma of decision-making regarding frozen embryos, the gametes of deceased donors and the issue of consent is analysed by reference to recent case law and the problem of decision-making in relation to the newly possible.

The Retreat from Liberty

Writing in March 2006, Martin Bright, political editor for the New Statesman commented that the current British government has a mania for legislation. Citing a response from Home Office Minister Baroness Scotland to a question posed by Lord Tebbitt, he suggested that since 1997, and according to the latest Home Office information, over four hundred forms of behaviour, previously legal, are now illegal, thanks to a plethora of legislation passed presumably under the banner of the need for security and crime reduction. Some of this avalanche of legislation would not be well known, such as those offences created by the Elections and Referendums Act 2000. Some are arguably the result of a recognition that the law must continue to play ‘catch up’ with those criminals who avail themselves of advances in technology. In these cases, offences created by the Sexual Offences Act 2003 such as grooming and downloading internet child pornography have a place, as do good examples of ground breaking legislation such as the Crime and Disorder Act 1998, the Human Rights Act 1998 and the Freedom of Information Act 2000. However, according to Bright (2006):1 This government has a mania for legislation. Since 1997 it has introduced no fewer than 11 education bills to tinker around the edges of our bewildering school and university system.