Tom Watson MP (Picture Credit: The Telegraph)

– Colin Murray (Senior Lecturer, Newcastle Law School) colin.murray@newcastle.ac.uk

This post was first published on Human Rights in Ireland

Last week Tom Watson MP (pictured left), chair of the All-Party Parliamentary Group on Drones (APPG), launched a new front in the work of the Group (founded back in 2012). As a parliamentarian with an uncanny ability to spot human rights issues likely to make the headlines and which will hold extended media attention, the subject of drones (both in terms of the UK’s operation of them and its cooperation with the US) was always likely to grab Watson’s attention. But the reason Watson is so high-profile in his myriad pursuits, from trying to bounce Tony Blair into resigning, to vanquishing Rupert Murdock to needling the Government on its drone policy, is his grasp of the role of a backbench MP.

His impact as a minister may have been limited, and his spell as Deputy Chair of the Labour Party might have ended ignominiously last summer, but as a backbench parliamentarian he has few equals. He knows how to use the power of select committees, castigating Rupert Murdock as a “mafia boss” when the latter appeared before the Culture, Media and Sport Committee. Alongside this grand standing comes the meticulous use of an MP’s privilege to question ministers. The House of Commons’ Questions Book overflows with queries over the minutiae of UK drone policy, systematic probing which aims to build up a picture of UK operations and to identify weaknesses in the Government’s legal and policy justifications. He is also a master of the Trojan-horse question, keeping the issue of drones alive even in tangentially related debates. A couple of weeks ago, in a debate on redundancies in the UK armed forces, he popped up with the following question:

[W]e have deployed military personnel in a US base in Djibouti. Please will he tell me what their role is? Are they involved in the drones programme in Yemen, and will they be affected by this cuts announcement?

Alas, readers, no substantive answer. For the UK Government is seemingly intent on boring Watson and his tenacious APPG into submission, or at least driving the public to disinterest. Questions on “drone strikes” are met by a blizzard of blandishments and technical-sounding acronyms. The UK doesn’t have drones, it operates UAS (Unmanned Aircraft Systems) or RPAS (Remotely Piloted Aircraft Systems) or UAV (Unmanned Air Vehicles), depending on the minister responding.

But Watson appreciates the limits of a parliamentarian’s reach. The APPG is well-resourced and backed by expert groups outside Parliament (declarations of interest show that the legal NGO Reprieve provides regular funding for a researcher to support its activities). Furthermore, in an effort to deflect the claims of political partisanship that invariably accompany any scrutiny work by MPs, Watson’s APPG has turned to commissioning and publishing legal advice on drones. And not simply on drones. With an eye towards the bigger prize, the legal advice sought by the APPG manages to elide the two most pressing security issues of our times; drones and electronic interceptions by UK spy agencies.

The advice, provided by the highly-respected Jemima Stratford QC and her colleague at Brick Court Chambers Tim Johnson, examines a scenario where the UK intercepts information (whether through the contents of an electronic communication or associated “metadata”), permits the United States to access it, and the United States then employs that information as the basis of a lethal drone strike. The barristers explain in their beginning of their advice (at [5]), ‘the authorities must establish that every step in the chain is lawful if they are to be permitted to carry on with these activities’, before making out what seems like a compelling case on which grounds UK law may fall foul of the requirements of Article 8 of the ECHR (the right to private and family life).

Their analysis is at its strongest when it comes to their discussion of various rouses which may be used by GCHQ to enable “mass” interception (ie, interception not permitted by a specific warrant) of contents of electronic communications within the UK (for example, by arguing that it is routed through a US-based internet server). Such efforts to circumvent the legal regime for intelligence gathering under the Regulation of Investigatory Powers Act 2000 are a key plank of the allegations made by Edward Snowden. And it turns out that with advice in hand focussing on this issue Watson is pushing at an open door. Figures who should know better, like Conservative grandee (and former Foreign Secretary) Sir Malcolm Rifkind, who heads up Parliament’s Intelligence and Security Committee, have in recent weeks spectacularly failed to coherently counter allegations over the legality of UK intelligence gathering. In a Channel 4 News interview Rifkind blustered that his committee’s oversight of Government Communication Headquarters (GCHQ) activities had been entirely appropriate as there was lawful authorisation of these activities under RIPA. This approach abjectly fails to deal with the contention in the Stratford/Johnson advice that it is not the existence but the “quality” of the law which is problematic in granting too broad a power to security agencies (see [35]).

Watson must have been laughing at this point, as the security community has so tied itself up in knots over an intervention before the European Court that Rifkind is reduced to repeatedly saying he thinks that the terms of RIPA are sufficient lawful authority. He would be wise to disappear from our TV screens for a while. All of this looks like pointing towards an easy win in Strasbourg, where Big Brother Watch v United Kingdom is pending before the European Court. High-fives for Watson on the way into Court (with a special degree of kudos for finding a way to hitch his APPG’s work on drones to the challenge to RIPA).

But as I noted last summer, the European Court has rarely challenged Security Service judgements over the requirements of national security and has often given considerable leeway, provided a legal framework is in place, on questions of whether interference with privacy interests are “proportionate” (for the classic example of this case law, see Klass v Germany). The claimants will have to establish that abuse of the RIPA framework has occurred or that the framework itself is inadequate constraint upon state surveillance. Even a “win” on the basis that there are not adequate protections surrounding the harvesting of metadata is unlikely to ultimately prevent the Security Services from undertaking this activity. As the Stratford/Johnson advice notes (at [46]):

RIPA is now 13 years old. As discussed above, the statute draws a sharp distinction between content and communications data. That distinction derives (at least to some extent) from the traditional ‘postal’ distinction between the address on the envelope and its contents. However, the significance of that boundary has been eroded by the realities modern internet usage. Communications data now encompasses each individual URL visited, the contents of an individual’s Twitter and Facebook address lists, messages posted on social media websites and numerous other significant elements of an individual’s online private life. Given modern trends in internet use, the binary distinction between contents and communications data has become increasingly artificial.

Precisely because this material is so useful for the work of security agencies across Europe, the European Court is highly unlikely, even if the current RIPA regime is found to be inadequate, to require specific authorisation for every interception of such information (as is required for the contents of communications). Defeat for the UK Government is likely to be embarrassing (and may require enhanced oversight), but in all likelihood GCHQ will be left with sufficient leeway to continue widespread surveillance of metadata.

As for drones, the supposed focus of the Stratford/Johnson advice hardly gets off the ground before running into the brick wall of the Khan case, where just last month the Court of Appeal emphatically refused to get drawn into passing judgment on the illegality of activities of a foreign state (in this case the US). The advice continues to look at the question based on the issue of data transfer ([85] onwards), but with the courts maintaining this stonewalling approach (effectively saying that claimants should pursue a claim against the US directly), it all begins to sound rather hopeful. So much for Government having to make out every step in the chain to win its case, if the courts will not even grant such claims permission to proceed to full judicial review.

Not that this issue necessarily matters. Fear of adverse judgements in the security sphere can have as salutary an effect on Government policy as joyful scenes of victorious claimants. The UK Government seems particularly defensive on issues of drone policy and intelligence sharing, as Professor Michael Clarke of the defence think-tank RUSI noted late last year:

We share information and it’s very hard to say that it is not used to target individuals. There’s a reasonable presumption that sharing information makes us complicit in the US policy…the UK silence [on the UK’s role in the US drone programme] is deafening.

Watson (with a little help from his legal team) appears to have his foes on the run even when the ground he stands on is weak.

– Colin Murray (Senior Lecturer, Newcastle Law School) colin.murray@newcastle.ac.uk

“The past invades the present, The present lives in the past, The future will never come.” The closing words of Robert Greacen’s poem, Procession, lamented the atrophy of unionism in the aftermath of partition. In the last week, the troubled passage of the Special Advisers Bill through the Northern Ireland Assembly and the UK Government’s fight through the US Courtsfor records of an oral history project held by Boston College (pictured left) indicate just how far Northern Ireland hasn’t come in tackling the Troubles’ legacy.

Both events relate to the victims of the Troubles. In the case of the SPAD Bill, completed its tortured journey through Stormont on Monday, much to the delight of its sponsor, the TUV’s Jim Allister. The legislation prevents anyone with serious criminal convictions from serving as special advisers at Stormont. In this context, serious criminal convictions inevitably relate to activities during the Troubles. Sinn Féin is the party directly affected by the measure, with several former Provisional IRA prisoners having held adviser positions to its leading representatives. It has doggedly defended the line that this legislation does not recognise the victimhood of former prisoners, and thereby creates a hierarchy of victims of the Troubles.

Sinn Fein’s legal criticisms of the Bill are twofold, and it seems inevitable that they will be tested in court. One, they assert that this legislation discriminates against its members on the basis of their political beliefs. Two, they believe that as the legislation applies no matter when a serious crime was committed, the legislation amounts to a retrospective punishment for the advisers’ crimes, contrary to Article 7 ECHR. The SDLP abstained from voting on the legislation because of these flaws.

The first argument has been played out in the courts before, when the Simon Community refused to employ former PIRA prisoners John McConkey and Jervis Marks. The House of Lords ultimately rejected their claim, despite acknowledging that it seemed to chime “with the often-expressed desire for a new start for Northern Ireland after the Good Friday Agreement” (at [29]). As Lord Rodger concluded (at [31]):

[There is nothing surprising, far less absurd or outrageous, in holding that [anti-discrimination legislation] allows such people to say: “No, I’m sorry, because of all I have suffered, I won’t employ you; I won’t serve you.” To hold otherwise would be to force these vulnerable individuals to associate with people who approved of the use of the very kind of violence that has blighted their lives.

With the courts having dismissed these claims once, it is unlikely that they will gain any traction with regard to arrangements surrounding government. As for the Human Rights argument, the focus on any litigation will be on whether this bar on becoming a Special Advisor amounts to a penalty, for the ECHR prevents the imposition of “a heavier penalty … than the one that was applicable at the time the criminal offence was committed”. The counter-argument will be that the measure does not constitute a penalty at all, but a protection for the democratic process. With regard to bars on prisoners voting, the European Court of Human Rights has explicitly recognised the leeway states have to protect their electoral systems where individuals have been involved in activities (such as political violence or electoral fraud) which undermines the democratic process (see Frodl v Austria, [28]). Any potential case would be the most important constitutional issue for Northern Ireland’s legal system for decades, for the courts have the power to strike down any Assembly legislation which fails to meet human rights standards.

Despite the weaknesses of the case, the legislation seems to use victims to score political points rather than serve their interests. That former paramilitary prisoners would have to have a role in Northern Ireland politics following the peace process was one of the most contentious issues in the Good Friday Agreement negotiations. Politicians can be elected to the Northern Ireland Assembly regardless of their past convictions (indeed, the MLAs who backed this legislation sit in the Northern Ireland Executive with former PIRA prisoners like Gerry Kelly). The DUP and UUP recognise that they cannot challenge Kelly’s position (or say, prior to his death, PUP MLA David Ervine, a contributor to the Belfast Project) without destroying the peace process, regardless of what might be said about his position by the victims of his bomb attacks. In that respect, this legislation is creating a hierarchy of victims, those whom others can use to score political points, and those whom they cannot.

If the SPADs Bill displays the failure of Northern Ireland’s politicians to move on from the Troubles, the Boston College case show the hubris of historians in thinking that they had. Led by journalist Ed Maloney, from 2001 the team at the Belfast Project went about recording interviews with former members of the republican and loyalist paramilitaries to provide an archive for historians to use after the participants in the interviews had died. As some of those involved died, Maloney began publishing and broadcasting material from the archive (including the award-winning documentary Voices from the Grave). This, in turn, drew the attention of the PSNI Historical Enquiries Team, particularly as some of the released material related to the murder of Jean McConville. Under the US-UK Treaty on Mutual Legal Assistance on Criminal Matters the UK requested that the US Government subpoena materials relevant to this investigation. Boston College fought against efforts at disclosure, on the basis that interviewees had been promised confidentiality.

On May 31st, the US First Circuit Court of Appeals delivered its latest judgment in the saga, a partial victory for Boston College. The appeal recognised that the College should only have to release material directly relevant to the McConville investigation, in light of the “heightened sensitivity” surrounding the free speech concerns inherent in academic research of this type. Rather than having to release fully 85 interviews, the College must now release only 11.

Maloney and his fellow researcher Anthony McIntyre celebrated the decision “as at least a partial indictment of the whole process” by which the US Government sought the release of information. Both the US Government, and the PSNI Team requesting the information, however, are simply fulfilling their roles under treaty and domestic law. Whether those roles overstep constitutional boundaries in the US may yet be a matter for the US Supreme Court, with further appeals a possibility. What the case does indict is the record of Northern Ireland’s politicians in dealing with the legacy of the Troubles, in leaving the Historical Enquiries Team to soldier on as the official organ for the investigation of serious crimes committed during the conflict.

The SPADs Bill and the Boston College case have attracted considerable hyperbole. Sinn Féin has accused the SDLP of abandoning the Good Friday Agreement in refusing to reject the legislation, whilst the Belfast Newsletter posed the doom-laden question of whether the “secret” Belfast Project archive could “end our peace” by triggering a raft of prosecutions. Together they exemplify the consequences of the failure to deal with the Troubles in any holistic way, and simply add to the malaise of recriminations afflicting politics in Northern Ireland.

Much ink has been spilt outlining what an effective Truth and Reconciliation (TRC) process might look like for Northern Ireland (not least on the pages of humanrights.ie). The events of the last week, however, show us what the absence of a TRC process will look like for years to come. Persistent court cases. Partial legislative fixes. Inquiries and rumours of inquiries. The resolution of each new crisis portrayed as a victory by one side or the other, with little overall regard for the interests of victims or advancement of the political process, just the hope that simmering discontent does not, once again, boil over. Will the future ever come?