A better debate on surveillance?

screen-shot-2016-09-21-at-18-57-00Back in 2015, Andrew Parker, the head of MI5, called for a ‘mature debate’ on surveillance – in advance of the Investigatory Powers Bill, the surveillance law which has now almost finished making its way through parliament, and will almost certainly become law in a few months time. Though there has been, at least in some ways, a better debate over this bill than over previous attempts to update the UK’s surveillance law, it still seems as though the debate in both politics and the media remains distinctly superficial and indeed often deeply misleading.

It is in this context that I have a new academic paper out: “Data gathering, surveillance and human rights: recasting the debate”, in a new journal, the Journal of Cyber Policy. It is an academic piece, and access, sadly, is relatively restricted, so I wanted to say a little about the piece here, in a blog which is freely accessible to all – at least in places where censorship of the internet has not yet taken full hold.

The essence of the argument in the paper is relatively straightforward. The debate over surveillance is simplified and miscast in a number of ways, and those ways in general tend to make surveillance seem more positive and effective that it is, and with less broad and significant an impact on ordinary people than it might have. The rights that it impinges are underplayed, and the side-effects of the surveillance are barely mentioned, making surveillance seem much more attractive than should be – and hence decisions are made that might not have been made if the debate had been better informed. If the debate is improved, then the decisions will be improved – and we might have both better law and better surveillance practices.

Perhaps the most important way in which the debate needs to be improved is to understand that surveillance does not just impact upon what is portrayed as a kind of selfish, individual privacy – privacy that it is implied does not matter for those who ‘have nothing to hide’ – but upon a wide range of what are generally described as ‘civil liberties’. It has a big impact on freedom of speech – an impact that been empirically evidenced in the last year – and upon freedom of association and assembly, both online and in the ‘real’ world. One of the main reasons for this – a reason largely missed by those who advocate for more surveillance – is that we use the internet for so many more things than we ever used telephones and letters, or even email. We work, play, romance and research our health. We organise our social lives, find entertainment, shop, discuss politics, do our finances and much, much more. There is pretty much no element of our lives that does not have a very significant online element – and that means that surveillance touches all aspects of our lives, and any chilling effect doesn’t just chill speech or invade selfish privacy, but almost everything.

This, and much more, is discussed in my paper – which I hope will contribute to the debate, and indeed stimulate debate. Some of it is contentious – the role of commercial surveillance the interaction between it and state surveillance – but that too is intentional. Contentious issues need to be discussed.

There is one particular point that often gets missed – the question of when surveillance occurs. Is it when data is gathered, when it is algorithmically analysed, or when human eyes finally look at it. In the end, this may be a semantic point – what technically counts as ‘surveillance’ is less important than what actually has an impact on people, which begins at the data gathering stage. In my conclusion, I bring out that point by quoting our new Prime Minister, from her time as Home Secretary and chief instigator of our current manifestation of surveillance law. This is how I put it in the paper:

“Statements such as Theresa May’s that ‘the UK does not engage in mass surveillance’ though semantically arguable, are in effect deeply unhelpful. A more accurate statement would be that:

‘the UK engages in bulk data gathering that interferes not only with privacy but with freedom of expression, association and assembly, the right to a free trial and the prohibition of discrimination, and which puts people at a wide variety of unacknowledged and unquantified risks.’”

It is only when we can have clearer debate, acknowledging the real risks, that we can come to appropriate conclusions. We are probably too late for that to happen in relation to the Investigatory Powers Bill, but given that the bill includes measures such as the contentious Internet Connection Records that seem likely to fail, in expensive and probably farcical ways, the debate will be returned to again and again. Next time, perhaps it might be a better debate.

More on Corbyn’s Digital Manifesto…

Yesterday a piece I wrote about Corbyn’s Digital Manifesto was published on The Conversation – you can find it here:

https://theconversation.com/corbyns-digital-meh-nifesto-is-too-rooted-in-the-past-to-offer-much-for-the-future-65003

The natural constraints of a short piece, and the requirements of The Conversation meant that I didn’t cover all the areas, and my own tendency to, well, be a bit strident in my opinions at times means that it may not have been quite as clear as it could have been. I would like to add a few things to what I said, clarify a few more, and open up the opportunity for anyone to comment on it.

The first thing to make absolutely clear is that though I was distinctly underwhelmed by the Digital Democracy Manifesto, it is far better than anything produced by Labour to date, and vastly better than anything I have seen by the Tories. My criticism of it was not in any way supporting what the Tories are currently doing, nor what they are likely to do. I used the word ‘meh’ in my piece because I wanted (and still want) Labour to be bolder, clearer, and more forward-looking precisely so that they can provide a better opposition to the Tories – and to the generally lamentable status quo on internet policy. As I tried (but perhaps failed) to make clear, I am delighted that Corbyn has taken this initiative, and hope it sparks more discussion. There are many of us who would be delighted to contribute to the discussion and indeed to the development of policy.

The second thing to make clear is that my piece was not an exhaustive analysis of the manifesto – indeed, it largely missed some really good parts. The support of Open Source, for example – which was criticised aggressively in the Sun – is to be thoroughly applauded. You can, as usual, trust The Sun to get things completely wrong.

I would of course like to say much more about privacy – sadly the manifesto (in some ways subconsciously) repeats the all-too-common idea that privacy is a purely personal, individual right, when it actually underpins the functioning of communities. I’ve written about this many times before – one piece is here, for example – but that is for another time. Labour, for me, should change its tack on privacy completely – but I know that I am somewhat unusual in that belief. I’ll continue to plug away on that particular issue, but not here and not now.

What I would hope is that the manifesto starts an open discussion – and starts to move us to a better understanding of these issues. If we don’t understand them better, we’ll continue to be driven down very unhelpful paths. Whether you’re one of Corbyn’s supporters or his bitterest opponents, that’s something to be avoided.

Dear Labour MPs and Members

Dear Labour MPs

I’m sorry that our party is in such a mess. I’m also sorry that it seems so hard to find a way forward – and I’m afraid that right now, you’re not really helping.

The thing is, Labour needs its members – so it really isn’t a viable option for you, as a parliamentary party, to either ignore what members want or to suggest that many members are somehow not really in tune with the party – suggesting that they’re all entryists, Trotskyists, or similar. There are, of course, some who are like that – but most really aren’t, and unless you understand that and pay a bit more respect to the members, the party is really in trouble.

That’s the thing – you really need to understand why so many members voted for Corbyn last year, and why, particularly, they didn’t vote for the three candidates arrayed against him. Until you understand that, and in particular that Labour members aren’t just stupid for doing so, but tap into that energy, that feeling of hope that Corbyn gave to people, then there’s little chance of your regaining the trust of the members. You need to understand why things like the abstention over welfare – even if it can be technically justified – alienated so many people, and why a principled stand is sometimes crucial even if it doesn’t make perfect parliamentary logic.

I hope that you can find a way. We really need to bring the party back together – which means members and MPs need to find a way to come back together.

With hope

Paul Bernal


Dear Labour Members

I’m sorry that our party is in such a mess. I’m also sorry that it seems so hard to find a way forward – and I’m afraid that right now, you’re not really helping.

The thing is, Labour needs its MPs – so it really isn’t a viable option for you, as a party membership, to either ignore what MPs want or to suggest that many MPs are somehow not really in tune with the party – suggesting that they’re all Blarites, Red Tories, or similar. There are, of course, some who are like that – but most really aren’t, and unless you understand that and pay a bit more respect to the MPs, the party is really in trouble.

That’s the thing – you really need to understand why so many MPs supported the vote of no confidence in Corbyn, and why, despite the clear support of the members, they still can’t really work with him. Until you understand that, and in particular that Labour MPs aren’t just stupid for doing this, but recognise why what MPs in parliament do that matters, and that MPs do work hard and are committed to the Labour Party, there’s little chance of Labour being an effective party or winning an election. You need to understand why what happens in parliament matters – even if it isn’t always clear.

I hope that you can find a way. We really need to bring the party back together – which means members and MPs need to find a way to come back together.

With hope

Paul Bernal


 

Guest post: Turkey, the ECHR and the Death Penalty

Guest post  by Super Cyan:

Erdogan

The ECHR prevents the death penalty whatever the circumstances and leaving is not that simple

Following the failed military coup, the mass detention, sacking of judges and banning of academic travel, Turkey are now in the midst of suspending the European Convention on Human Rights (ECHR). There has been some concern that this measure has taken place to reintroduce the death penalty.

Not only has it been pointed out that Turkey has signed and ratified Protocol 13 (which concerns the abolition of the death penalty in all circumstances) by Matthew Scott (@Barristerblog), but this as pointed out by Steve Peers and Shohib Khan under Article 15 of ECHR (which concerns derogations in times of war and emergency), Article 2 (the right to life) and Article 3 (prohibition of torture) cannot be derogated from.

Add to this is Protocol 6 (which Turkey has signed and ratified)which concerns the abolition of the death penalty, Article 3 of that Protocol maintains that no derogations of this Protocol can be made under Article 15. Interestingly, Article 2 of that same Protocol seemingly allows States to make provisions for the death penalty in respect of acts committed in times of war or imminent threat of war (which is not the situation in Turkey in any event). However, read with Article 3 of Protocol 6, Protocol 13 and Article 15, Article 2 of Protocol 6 would be prohibited in any circumstances.

Suspension not derogation?

Guillaume Champeau has pointed out that Turkey may not be derogating from the Convention, but suspending or denouncing its membership via Article 58 of the Convention. However, to do so would require Turkey to give the Secretary General of the Council of Europe six months notice. If Turkey decides to denounce without the six months notice (because it assumed this is to be done immediately), this is clearly contrary to Article 58 itself. Under Article 8 of the Statute of the Council of Europe the Committee of Ministers can request any Council of Europe member to withdraw under Article 7 for violating Article 3 of the Statute. Article 3 stipulates that every member must:

‘[A]ccept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council as specified in Chapter I.’

By not adhering to the six month notification requirement of Article 58, it could well be suggested that Turkey is not accepting of the principles of the rule of law, by acting contrary to it. Then of course there is what has been mentioned above in the aftermath of the coup which many will say is not respecting human rights and fundamental freedoms especially now that spreading exaggerated news could be a crime (putting, not just journalists, but anyone who uses social media under threat).

Regarding Article 7, if Turkey notify the Secretary General by September, withdrawal could take effect at the end of the financial or fiscal year which would be at the end of 2016 (Turkey’s fiscal year is the calendar year). If the notification is given after September the 30th, Turkey would have to wait until the end of 2017. Under Article 58(2), Turkey would still have to respect the Convention up until that point. However, if Turkey does trigger the Committee of Ministers to act under Article 8 to force withdrawal, it is unlikely that Turkey would refuse (because that is the intention right?), and if they did the Committee can unilaterally expel them (which again might be the intention).

Suspension is not unprecedented in the history of the Council of Europe, here are the lists and reasons for suspension:

— Greece, following the installation of the Colonels’ military dictatorship in 1967. Greece withdrew from the organisation in 1969 before the Committee of Ministers voted for its suspension. The country was readmitted to the organisation in 1974 following the fall of the regime.

— Turkey, following the military coup in 1980. In 1984, the country regained its right to vote in the Assembly after democratic elections had taken place.

— Russia was suspended from the Assembly from 2000 to 2001 as a result of its policies on Chechnya.

Conclusions:

Turkey’s future in the Council of Europe is in considerable jeopardy. If Turkey reinstates the death penalty, whether or not they derogate from Article 15, they will be expelled. If Turkey suspends its membership without properly adhering to Article 58, they could be suspended. If Turkey’s post coup reaction is serious enough, they could be suspended or expelled. If Turkey does lose its Council of Europe status, then it is the people of Turkey who will suffer the most because Turkey will be relinquished of all the ECHR obligations (Article 58(3)). Worryingly, it may not be a question of if or could, but when will Turkey be suspended or expelled.

A wish and a prayer

A wish and a prayer

It ends in despair

The sadness laid bare

For all

 

With George Bush you prayed

The world you betrayed

Those mem’ries won’t fade

For me

 

You wished for success

Make history, no less

But oh, what a mess

You made

 

You believed what you read,

What the wrong people said,

Now thousands are dead,

For what?

 

No planning, no thought

Disaster you brought

And chaos you wrought

On us all

 

‘Twas just for your pride

That so many died

While you merely sighed

No more

 

A wish and a prayer

So how can you dare

To pretend that you care

At all?

 

 

 

Paul Bernal, July 2016

Dear Labour Plotters

Dear Labour Plotters

I’m not quite sure how I should address you – in a way I’m sorry to have chosen the word ‘plotters’, but after a little thought it seemed the best word, because what you seem to be trying to do does look very like a plot. Other words have been used – ‘coup’ is perhaps the most common – but ‘plot’ seems the best. Or at least I hope it’s the best, because ‘plot’ suggests there might actually be a plan behind your actions, a plan more than just ‘let’s get rid of our leader, and everything will be better’ along the lines of the Leave campaign’s ‘let’s win the referendum vote, and everything will be better’ plan which seems to be unravelling with remarkable speed since the hideous and momentous events of Thursday and Friday.

Of course I understand why you have not yet revealed the details of your plan – revealing those details might defeat the plan itself – but I do hope it’s a good plan, because you really need one. In making that plan, I’m sure you’ve taken full account of the need to persuade the Labour membership (including me) that your plan is a good one for Labour, and indeed for the country. I’m also sure that you must have learned all the right lessons from both last year’s Labour leadership contest and last week’s referendum. I do hope so, because from the outside it is a little hard to see that you have – but that may well be because all your plans are, quite justifiably, kept nice and secret from the rest of us.

Last year’s Labour Leadership contest

The thing is, last year’s Labour leadership contest was quite something, and I do wonder if some of you aren’t still smarting from it so much that you can’t see what actually happened. Jeremy Corbyn didn’t just win that contest, he absolutely thrashed all his opponents. It wasn’t just a victory, it was a crushing victory. That victory was produced by a great number of things and has been subjected to a good deal of analysis – but one key part of it was how abject the campaigns of his opponents were. They weren’t just bad, they were useless. So the first lesson that I’m sure you must have learned from the contest is not to campaign on the same basis as last time. And, to admit to the failure of last time’s campaigns.

Most of all, what I’m sure you’ve realised is that you can’t just turn back to the members and say ‘look, hasn’t Corbyn been useless, we were right all along, and you made an awful mistake in electing him’ and then expect them to smile and say ‘yes, you were right, and we were terribly stupid last year’.  People don’t like being told they’re stupid – regardless of whether they have been stupid or not. If your approach to replacing Corbyn is based entirely around convincing Labour members that they got it wrong last year, then your plots and plans are doomed to the same kind of abject failure as the last time.

I’m sure you realise this. I hope you do. I really hope you do, because if you don’t, all you’re doing with this plot is causing even more damage to the Labour Party at a time when the Labour Party is needed more than ever. To have driven the results of the EU referendum off the front pages just a few days after its momentous result is quite something – a depressing something.

The next Labour leader

I am sure your plans include plans for Corbyn’s replacement – and I understand in a way why it is not at all clear who that leader might be. I can understand why no-one would want to show themselves right now – but it is a little strange to stage a coup without any idea of what the regime after that coup would look like. The ‘leave’ campaign may have had no plan of any kind after winning the referendum, but at least we knew that it would probably result in Boris Johnson becoming Prime Minister – after all, that was the only reason he chose ‘leave’ over ‘remain’. With your plot, no-one seems to know who you’re planning to put in Corbyn’s place – but given the amount of time you’ve had to work out your plan, I’m sure you have an idea. Whoever it is, I assume it’s not someone that Corbyn defeated so easily last time around, or someone whose main claim to fame is having made a speech that had the Tory benches roaring in applause in favour of military action. With the Chilcot report due very soon, that might not be a very good look.

I hope that whoever you have in mind for the next leader is able to engage with both the Labour membership and the electorate – because both are needed. It’s no good being ‘electable’ if you can’t convince your own party to support them – and as some of you point out on a regular basis, it’s no good getting the support of the Labour membership whilst not being ‘electable’. It’s hard to be both – but whoever you have waiting in the wings to unveil as the next Labour leader and future Prime Minister needs to be able to do both.  I look forward to seeing who they might be – and how they can meet both of these requirements, whilst providing something new and different.

The EU referendum

…because new and different will be needed. Last week’s referendum can be interpreted in many different ways, but one thing it wasn’t was an endorsement of old politics. The idea that there was a consensus around the current Tory approach – elite austerity – has been shattered, so an approach based on the assumption that we need to accept that would be self-destructive at best.  Many voters last week believed they were voting for more funding for the NHS, for example – there was a reason that particular lie was on the side of that bus. This gives Labour a real chance – a chance that would be lost if we simply went back to what was offered last time around by all the candidates except Corbyn. Labour needs to offer hope and a way forward – but a way forward not based on lies, on hate, on fear. I’m sure you all realise this, and will share your vision of this way forward at some point soon.

Whilst the EU referendum offers an opportunity in this way, it also offers a huge trap – the trap of how to address people’s concern over immigration. Labour should be under no illusions that immigration was the critical issue in the referendum. It wasn’t a coincidence that the polls shifted towards ‘leave’ when Farage put immigration on centre stage – people are genuinely concerned about it. Many really believe, despite all the evidence, that immigration is what has caused the problems with the NHS, with housing, with education, with crime and so forth. The trap here is to accept their beliefs rather than addressing those beliefs. Silence is not an option – that much should be clear to everyone – but neither should sinking into the kind of populist xenophobia that UKIP uses and that the ‘leave’ campaign harnessed. It is equally useless – indeed counterproductive – to just tell people they’re wrong (just as you will find if you try that approach on Labour members who voted for Corbyn last year). If Labour had been strong enough and brave enough to take this issue on a decade or more ago, we might be in a very different situation – but it didn’t seem to matter so much back then, so it was all swept under the carpet. It can’t be any more.

There isn’t a magic bullet here – on immigration, or on replacing Corbyn. Both require intelligence, imagination, and a proper plan. Something new and something better has to be offered. On immigration, something real has to be offered to deal with the real problems that are being blamed on immigrants – and not just vague promises. On replacing Corbyn, you’ll need to convince us that you have something better to offer – a new leader that can inspire us, as well as fulfil the ‘electable’ requirements.  Given the coordinated nature of your apparent plot, I’m sure you’ve got someone waiting in the wings.

I look forward to their inspiring appearance.

Kind regards

A Labour Member.

Guest post: The Wrong Prison! Sending trans women to male prisons is a breach of the ECHR

 

Guest post  by Super Cyan:

Screen Shot 2016-06-09 at 08.10.10

Image by csifer.

A few days ago, Pink News reported that another transgender woman had been sent to a men’s prison. December last year, Caroline Dinenage, the Parliamentary Under-Secretary of State for Justice, Minister for Women, Equalities and Family Justice announced there would be a review that will ‘develop recommendations for revised guidelines which cover the future shape of prison and probation services for transgender prisoners and offenders in the community.’ The review was supposed to be released early this year, but as of yet, no review has been released.

Pink News highlighted that it is common for incarcerated trans individuals to be sent to the prison that reflects their legal gender, requiring a successful application for a Gender Recognition Certificate (GRC) under s.1 of the Gender Recognition Act 2004 (GRA 2004). This, as Pink News state, due to the complexity of the process, trans women facing prison are less likely to have secured said certificate.

What does the European Convention on Human Rights have to say?

The European Convention on Human Rights (ECHR) is a collection of rights there to protect individuals from state action and inaction. However, Natasha Holcroft-Emmess, writing for @rights_info highlighted that the European Court of Human Rights (ECtHR) were slow to find violations of Article 8 (the right to respect private and family life) despite obvious discriminatory treatment by the UK. That was, up until the case of Christine Goodwin v UK – 28957/95 [2002] ECHR 588, a post-operative trans woman (para 12) who had been the victim of mistreatment in the work place (para 15-16). The applicant’s complaint was that she was not eligible for a State pension at the age of 60 (the age for women at the time), the failure of the UK to take heed of previous warnings of the ECtHR for legal reform on the issue of gender identity, the failure to provide protection against discrimination, the failure to obtain a promotion due to her employer discovering her status through her National Insurance number and a failure to recognise the rapid changes in social attitudes on the subject matter (paras 60-63).

The ECtHR highlighted that previous case law did not recognise such issues interfering with Article 8 (para 73) but decided to depart from this as ‘Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions within the respondent State and within Contracting States generally and respond, for example, to any evolving convergence as to the standards to be achieved’ (para 74) continuing that:

‘It is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. A failure by the Court to maintain a dynamic and evolutive approach would indeed risk rendering it a bar to reform or improvement…In the present context the Court has, on several occasions since 1986, signalled its consciousness of the serious problems facing transsexuals and stressed the importance of keeping the need for appropriate legal measures in this area under review.’ (para 74).

Crucially, the ECtHR recognised the serious interference domestic law had on the important aspect of personal identity. The ECtHR also pointed towards the stress and alienation arising from a discordance between the position in society assumed by post-operative trans individuals and the status imposed by law. The ECtHR believed this was no minor inconvenience as it places trans individuals in an anomalous position creating feelings of vulnerability, humiliation and anxiety (para 77). The ECtHR felt it ‘illogical’ that the UK allowed gender reassignment surgery but none the less did not recognise this in the legal sense (para 78).

The ECtHR reminded the UK that the very essence of the ECHR is the respect for human dignity and freedom, where the notion of personal autonomy being an important principle underlying the interpretation of its guarantees (para 90). Most importantly before finding a violation of Article 8 (para 93) the ECtHR highlighted that:

‘In the twenty first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved.’ (para 90).

Physical and moral security will be an important factor to be considered a little later, but the ECtHR’s judgment led to the GRA 2004 in which s.9 requires that once a GRC has been issued, that persons gender ‘becomes for all purposes the acquired gender.’

Transgender women in men’s prisons:

The case of AB, R (on the application of) v Secretary of State for Justice & Anor [2009] EWHC 2220 (Admin) concerned a 27 year old pre operative transgender woman who sought to challenge the Secretary of State for not transferring her to a female prison despite having a GRC (para 1). Despite living in her acquired gender for two years (as required by the GRA 2004) the Gender Identity Clinic treating her would not approve her gender reassignment surgery until she has spent a period living “in role” as a woman within a female prison (para 7). The High Court highlighted that the Secretary of State had the power to place women in a male prison but the circumstances for the present case were not met (para 10).

The questions before the High Court was whether such refusal violated Article 8 in light of s.9 of the GRA, whether Article 14 (securing Convention Rights without discrimination) in conjunction with Article 8 was violated and whether the decision by the Secretary of State was Wednesbury unreasonable (para 28). Section 9 of the GRA requires as stated that for ‘all purposes’ an individual must be treated as their acquired gender, yet Deputy Judge Elvin QC felt that that the restrictions imposed on the applicant (such as movement, clothing, and ability to participate in ordinary prison life (para 5)) wouldn’t likely apply in the rare case of a biological woman held in a male prison (para 31).

With regards to Article 8, after careful consideration of its case law in this area, with an emphasis on personal autonomy (para 38-53) it was concluded that Article 8 was engaged and therefore the Secretary of State had to justify that measures satisfied Article 8(2) (the limitations of the right to privacy etc). Deputy Judge Elvin QC had already concluded that the decision to keep the claimant in a male prison had violated Article 8 (para 57) but went on to explain why. Deputy Judge Elvin QC placed emphasis on risk and resources and that although the state has a generous margin of appreciation (discretion), when such decisions places significant restriction on a prisoners personal autonomy then the Court should scrutinise carefully the basis upon which resources are said to justify such a significant infringement of personal freedom (para 58). Deputy Judge Elvin QC highlighted that severe frustration would be caused by the continuation of male imprisonment and the consequential denial of surgery (para 60), something which Mr Spurr (Chief Operating Officer of NOMS (the National Offender Management Service) in the Ministry of Justice (para 21)) omitted to consider (para 60-61). The Secretary of State was criticised for not taking into account the consequences of the frustration of the Claimant’s progress, and its possible effects on risk and the costs of keeping her within a male prison (para 64) whilst only considering the cost of segregation on the basis that it was likely to be required only if the Claimant were transferred into a female prison and only if it were required for a significant period of time (para 73). Moreover, the Secretary of State did not consider the possibility that the period might not be particularly long, but also wholly failed to consider, let alone balance, the costs which would be likely to arise if the denial of a transfer and the loss of hope at progressing to qualify for reassignment surgery were to increase the difficulties of the Claimant living in a male prison and themselves lead to segregation (para 73). Deputy Judge Elvin QC felt this was clear not only from the circumstances of the Claimant’s offending, but from Dr Travers’ reports (who maintained that keeping the Claimant in limbo would increase frustration, indicate a shift in her risk profile, risk of self harm and harm to others and deceitful behaviour increase (para 62)) which was not disputed (para 62-71) by the other experts (para 73). There were further criticisms of the Secretary of State ranging from adopting an ‘extreme position’ on the length of segregation (para 74) and ultimately concluded that ‘Secretary of State’s decision to continue to detain the Claimant in a male in prison is in breach of Article 8’ (para 78).

Deputy Judge Elvin QC did not consider it necessary to consider Article 14 based on the finding of Article 8 (para 79) but did find the Secretary of State’s decision to continue male detention as Wednesbury unreasonable (para 85). This is a ground which requires much higher threshold to be considered unlawful than human rights grounds, which serves to highlight just how flawed the Secretary of State’s decision to continue was.

This case demonstrated that post-operative reassignment surgery (as was in Goodwin) was not necessary to secure the Convention Rights of a transgendered individual provided that a GRC had been issued.

What about not having a GRC?:

The case of M v Revenue & Customs [2010] UKFTT 356 (TC) concerned a post operative transgender woman who would have to continue paying National Insurance Contributions (NICs) until she was issued with a GRC (para 1). It was argued that Article 8 as interpreted in Goodwin required recognition of the acquired gender of a post-operative transsexual person, something which the GRA 2004 did not, but instead imposed a disproportionate two-year waiting requirement (para 18). However, Judge Nicolas Paines maintained that s.9 of the GRA 2004 made it clear that prior to the issue of a GRC, a person’s sex for legal purposes is their biological sex (para 22).

Judge Nicolas Paines did refer to A v West Yorkshire Police [2004] UKHL 21, which is an important to summarise. The case concerned the decision of the Chief Constable rejecting the application of a post-operative transgender woman (Ms A) to join his force as a constable on the grounds that she could not search suspects (para 2-6). Ms A relied on a European Court of Justice (ECJ) case prior to the Chief Constable’s decision in P v S and Cornwall County Council (Case C-13/94) [1996] ICR 795 which as Lord Bingham noted that it was held in very clear and simple terms that the then Equal Treatment Directive prohibited unfavourable treatment on grounds of gender reassignment (para 10) and ultimately the House of Lords ruled in Ms A’s favour. However, Judge Nicolas Paines felt that this did not assist the human rights argument (para 26) and felt that he was constrained to hold that the appellant a man at all times prior to the issuing of a GRC even if it was considered contrary to the ECHR (para 28).

What this case highlights just as Pink News did, is of the complexities faced with obtaining a GRC and the consequences of not obtaining one when if one is sentenced to prison. This would likely mean that prior to having a GRC, any post and pre-operative transgendered individual would be sent to the prison of their birth gender i.e. the wrong prison.

But there is still hope:

In the case of Identoba and Others v. Georgia – 73235/12 – Chamber Judgment [2015] ECHR 474 the ECtHR held that Georgia’s failure to prevent, and effectively investigate, attacks against an anti-trans/homophobia march violated Articles 3 (freedom from torture, inhumane and degrading treatment) and 11 (freedom of assembly) of the ECHR in conjunction with Article 14.

One of the important criticisms that the ECtHR made against Georgia was that ‘domestic authorities knew or ought to have known of the risks associated with any public event concerning that vulnerable community, and were consequently under an obligation to provide heightened State protection’ (para 72). The risks and dangers associated with sending trans women to male prisons is well documented and even in the case of AB, R (on the application of) v Secretary of State for Justice & Anor the individual in question was segregated to a large extent from her male inmates, highlighting that the UK is indeed aware of this issue. The ECtHR held that:

‘[T]hat violence, which consisted mostly of hate speech and serious threats, but also some sporadic physical abuse in illustration of the reality of the threats, rendered the fear, anxiety and insecurity experienced by all thirteen applicants severe enough to reach the relevant threshold under Article 3 read in conjunction with Article 14 of the Convention.’ (para 79).

And subsequently held that Georgia had failed in its positive obligations under Article 3 in conjunction with Article 14 (para 81).

Arguably the most important aspect of this was when the ECtHR held that ‘the prohibition of discrimination under Article 14 of the Convention duly covers questions related to sexual orientation and gender identity’ (para 96). Such clarification was welcomed by Transgender Europe and with Peter Dunne (Enhancing sexual orientation and gender-identity protections in Strasbourg, The Cambridge Law Journal 75(01):4-8 · March 2016) correctly highlighting that:

‘Adopting the more inclusive terminology of “gender identity”, which focuses on internal and individual experiences of gender rather than physical appearance, the Fourth Section has confirmed that all transgender persons, irrespective of whether they seek medical intervention, have equal enjoyment of Convention rights.’

Conclusions:

What does this mean for sending transgender females to male prisons (and vice versa)? Based on Identoba and Others v. Georgia an Article 8 (and possibly Article 3) argument in conjunction with Article 14 would better protect transgender individuals who neither had a GRC issued at the relevant time or did not undergo reassignment surgery. It would mean that decisions to send trans individuals to the wrong prison are open to challenge irrespective of whether a GRC is issued or are in the post-operative stage. Based on AB, R (on the application of) v Secretary of State for Justice & Anor and taking into account what was previously maintained, that being ‘in the twenty first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved.’ It is very likely that the rights in question would be breached and thus would be in line with the Convention being practical and effective, not theoretical and illusory in the fight to protect the rights of all transgender people.