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Alexander Horne @legalmusings.bsky.social · 1h

I’d highly recommend this piece, by Michael Foran (h/t @legalclaret.bsky.social) for those who are looking for a more detailed discussion of the issues:

knowingius.org/p/is-an-echr...

Is an ECHR showdown on women's rights and trans rights inevitable?

The Council of Europe’s human rights commissioner, Dr Michael O’Flaherty, has written to the Women and Equalities Select Committee and the Joint Committee on Human Rights to raise concerns about the i...

knowingius.org

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Alexander Horne @legalmusings.bsky.social · 1h

Most normal people follow the law whether someone is there to enforce it or not.

Think of the smoking ban. We don’t have inspectors going around enforcing it. But how many pubs and restaurants have you visited where smoking still occurs on the premises?

Social norms can be quite effective.

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Alexander Horne @legalmusings.bsky.social · 1h

“Further breaches”? We haven’t seen any breaches thus far have we?

I’m wary about new legislation. The Supreme Court gave a pretty clear and reasoned judgment. Frankly, I am not convinced that our current batch of politicians would do a better job.

Alexander Horne @legalmusings.bsky.social · 2h

It is not normal to ask a person using the disabled/accessible facilities to disclose the nature of any disability that they may have.

Neither is it normal for people to surveil disabled toilets to see who is using them. I think this claim is somewhat overblown.

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Alexander Horne @legalmusings.bsky.social · 3h

Second, given the number of ‘trans identifying’ individuals in the population, the impact on usage of such facilities would be minuscule. It’s an obvious and pragmatic solution.

Finally, the country cannot afford endless litigation on these issues.

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Alexander Horne @legalmusings.bsky.social · 3h

First, you may recall the slogan “not all disabilities are visible” which is frequently used to remind people to be thoughtful. People may have many reasons to use a disabled/accessible toilet. It in no way ‘outs’ anyone.

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Alexander Horne @legalmusings.bsky.social · 3h

Unfortunately, we often seem to get bogged down in discussions about toilets. The most obvious answer here - where places provide different facilities - is to re-label the disabled toilets as accessible and allow them to be used by trans individuals.
This would not require them to ‘out’ themselves.

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Alexander Horne @legalmusings.bsky.social · 3h

I guess we shall have to see how things develop. My reading of the letter was an attempt to circumscribe the effect of the judgment as narrowly as possible.

My own view is that there are spheres (prisons, most if not all sport, women’s refuges) where the judgment should have a significant impact.

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Alexander Horne @legalmusings.bsky.social · 6h

And yet anyone who want’s to campaign for Palestine can perfectly lawfully hold up a sign saying “freedom for Palestine” or “Stop the War”. They have marched in London most weeks.

Campaigners are not above the law.

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Alexander Horne @legalmusings.bsky.social · 6h

Because one of the reason for special terrorism legislation is to prevent things from happening in the first place. Including millions of pounds of damage to national security infrastructure.

In that context, it’s worth noting what Yvette Cooper told Parliament in the summer.

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Alexander Horne @legalmusings.bsky.social · 6h

Other states may take a different position. But there is no settled consensus on the subject across the 46 CoE states - and thus no justification for the ECtHRs to intervene.

The Commissioner makes himself look like a campaigner here and that is problematic.

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Alexander Horne @legalmusings.bsky.social · 6h

Finally, it is interesting that it’s seen as perfectly fine to attack court judgments in this case. But only from certain perspectives.

To my mind the FWS judgment deals responsibly with the issues which have arisen in the U.K.

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Alexander Horne @legalmusings.bsky.social · 6h

Second, there is an issue around politics, democracy and accountability.

Frankly, the timing of this intervention by the Commissioner is stupid and will hand ammunition to those who argue that human rights advocates do not respect democratic norms.

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Alexander Horne @legalmusings.bsky.social · 6h

First, for reasons I have set out extensively on Blue Sky and in the media, I think the judgment of the Supreme Court in FWS and the proscription of Palestine Action are both proportionate and justified in law.

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Alexander Horne @legalmusings.bsky.social · 7h

I think there is a certain blindness to the rule of law when people suggest that because they support a particular cause the law shouldn’t apply to them.

The right to peaceful protest doesn’t encompass a right to damage/destroy property, let alone British aircraft and submarine parts.

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Alexander Horne @legalmusings.bsky.social · 7h

I don’t think that it’s disproportionate in circumstances where there are many other pro-Palestine groups which have been allowed to protest on a weekly basis.

People are simply precluded from supporting the one which advocates taking action to damage U.K. national security infrastructure.

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Alexander Horne @legalmusings.bsky.social · 7h

The ‘closed’ national security material was presented to the High Court of England and Wales in the judicial review case - not the criminal proceedings in Scotland.

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Alexander Horne @legalmusings.bsky.social · 7h

On the issue of proscription, damage to national security infrastructure should be a red line for any ‘direct action’.
The perpetrators cannot know the consequences of their actions (unless they are bad actors). It isn’t sufficient to prosecute such activities after the event. It must be prevented.

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Alexander Horne @legalmusings.bsky.social · 7h

In circumstances where the ECHR is one of the few human rights bodies with a court and real supervision by the CoE, I do wonder about the merits of having a Commissioner.

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Alexander Horne @legalmusings.bsky.social · 7h

Damage to national security infrastructure should be a red line for any ‘direct action’.

The perpetrators cannot possibly know the consequences of their actions (unless they are bad actors). It is not sufficient to prosecute such activities after the event. It must be prevented from happening.

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Alexander Horne @legalmusings.bsky.social · 7h

Indeed. Imagine the courts find for Palestine Action.

What is to stop Russia. Iran or any other bad actor infiltrating the group and encouraging them to damage essential equipment putting the security of the UK in danger? That’s why proscription is important.

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Alexander Horne @legalmusings.bsky.social · 7h

Have you seen the extent of the damage to the airplane and submarine parts? Why excessive?

The latter point has already been considered by a Scottish court which imposed a custodial sentence. + The Human Rights Commissioner will not have seen the ‘closed’ security material before the High Court.

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Alexander Horne @legalmusings.bsky.social · 7h

I seem to recall that we saw:

Natal male (and male bodied) sex offenders housed in women’s prisons.

Natal men competing in women’s sport (cheating).

Natal men accessing women’s domestic violence centres.

Hopefully all that will now end.

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Alexander Horne @legalmusings.bsky.social · 8h

If a group set out to (and encourage others to) damage national security infrastructure for political reasons it falls squarely within the definition in the Terrorism Act 2000.

Proscription is proportionate because the state needs to deter others before the behaviour is emulated.

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Alexander Horne @legalmusings.bsky.social · 8h

The sheriff in that case noted that damage included “matters of nationwide security” and disputed the group’s claims that its actions were non-violent.

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