Monthly Archives: June 2011

Liz Fisher: Transparency

‘We want to be the most open and transparent government in the world’ is the first line of the website for the Prime Minister’s Office dedicated to the issue of transparency (http://transparency.number10.gov.uk/) and in the time since the Coalition government has been in office,  the need for transparency has become a common refrain. Transparency is an aspiration that few would disagree with and Cameron’s statement echoes Obama’s Open Government Initiative in the US (http://www.whitehouse.gov/open) and numerous other proposals across the world. Nor is it something particularly new in the UK. Over the last decade there have been many legal and policy reforms dedicated to improving transparency. Some of these have been overarching such as the Freedom of Information Act 2000 but many have been far more specific: Environmental Information Regulations 2004; International Development (Reporting and Transparency) Act 2006; and the Public Contracts Regulations 2006. Likewise, institutions such as the National Institute for Health and Clinical Excellence (NICE) have been created so that they operate transparently.  Pieces of legislation such as the Constitutional Reform and Governance Act 2010 are also promoting transparency in a range of different government activities. Yet while most agree that transparency is ‘good’ there has been very little substantive analysis of the nature of these reforms. That is a problem – not because transparency is ‘bad’ but because transparency is far more complex than a lot of current discourse presumes it to be.

First, there are many different reasons that transparency is being promoted. For example David Cameron’s letter to government departments on opening up data stated that greater transparency would:

‘enable the public to hold politicians and public bodies to account; to reduce the deficit and deliver better value for money in public spending; and to realise significant economic benefits by enabling businesses and non-profit organisations to build innovative applications and websites using public data’ (http://www.number10.gov.uk/news/statements-and-articles/2010/05/letter-to-government-departments-on-opening-up-data-51204).

There are lots of different goals, assumptions, and expectations in there – political accountability, administrative accountability, deficit reduction, better financial management, economic opportunities, non-governmental involvement, and technological innovation. And that is just one statement. Look right across government and one can see a range of other hopes about transparency – market efficiency, building trust, stopping corruption, education, encouraging participation, stopping mistakes, giving people choice and encouraging self-discipline. Some of these goals do overlap but the reality is that transparency is being promoted for many different reasons. There may general agreement that transparency is ‘good’ but different people think it is ‘good’ for different and sometimes contradictory reasons.

Second, and even more significantly, transparency mechanisms themselves are complex and multi-faceted. No transparency mechanism is about making everything visible all of the time. Decisions have to be made about what is to be made visible, when it is to be visible (and for how long), and what the triggers for making something visible are. Thus for example, freedom of information legislation concerns making ‘information’ visible when there is a request. In contrast, financial accounting tends to be in the form of regular reporting, while Registers of Member’s Interests are often being constantly updated. Likewise, different transparency mechanisms will have different users, different institutional apparatuses for their operation, and lead to different consequences. Thus, for example inspectorates a very well entrenched form of making institutions transparent and require a specialized apparatus to do so. Yet different inspectorates have different expected end users. Thus one of the functions of OFSTED reports is producing information for parents who are considering whether to send their child to a school but Her Majesty’s Inspectorate of Prisons for England and Wales is obviously not serving that sort of function. It is also the case, that many of these transparency mechanisms require the creation of something so as to make it transparent – whether it be a report, an account, or an assessment.

Third, transparency has a range of different implications. There are many that could be highlighted but here it is useful to note those most significant to public lawyers. Most obviously, these mechanisms give rise to an administrative law of transparency. Thus, tribunals and courts have been busy dealing with questions about the operation and nature of transparency mechanisms and how they interrelate with other legal concepts and regimes. These questions may focus on the scope of a regime (e.g. Smartsource v Information Comimsisoner [2010] UKUT 415 (AAC) discussing what type of bodies the Environmental Information Regulations 1994 apply to) but also concern the nature of the judicial powers in regards to such mechanisms (OFCOM v Morrissey & the Information Commissioner [2011] UKUT 116 (AAC)). To put it another way, for transparency mechanisms to operate they need a body of legal practice and doctrine – such mechanisms are not self executing.

This is not the only implication of transparency mechanisms however. Perhaps more significantly, the more that is made visible the more that public law applies to. The commitment to transparency in NICE thus leads to administrative law challenges concerned with the transparency of the processes. Thus for example in Eisai Ltd, R (on the application of) v National Institute for Health and Clinical Excellence (NICE) [2008] EWCA Civ 438 (01 May 2008) the issue was whether it was procedurally unfair not to have access to a fully executable model as part of a transparent decision-making system.  This is not an issue that judges are used to getting their heads around but it is a legal question that will naturally arise in a regime committed to transparency. There are also real practical consequences of transparency. In Luton Borough Council & Ors, R (on the application of) v Secretary of State for Education [2011] EWHC 217 (Admin) (11 February 2011) Mr Justice Holman noted that ‘the case generated about 7,500 pages of documents, complemented by two “core bundles” totalling about 840 pages and a further 460 pages of “court documents”. The skeleton arguments, supplemented by various additional notes and written submissions, amounted by the end to about 300 pages’ (para 7). Such large documentary records are inevitable in systems committed to transparency but such records also sit uncomfortably with current judicial review procedure.

Most significantly, making something visible does not mean that what is seen is understood. I learnt this lesson the very hard way when reading the BSE Inquiry Report and its evidentiary record. That Inquiry is a wonderful example of a transparency in action with all written and oral evidence available on the web (http://collections.europarchive.org/tna/20090505194948/http:/bseinquiry.gov.uk/report/index.htm). As such it is a fabulous research resource but it is one that took me over a year to actually make sense of because I needed to actually understand what I was reading, not only in terms of its contents but also how it related to its context. Another example of this can be seen in relation to the data that can be found on data.gov.uk. Most of it is pretty meaningless without any further understanding.  Thus, to grasp the significance of the ‘real time energy use for Numbers 10, 11, 12 Downing St’ ( see http://data.gov.uk/dataset/real-time-energy-use-nos10-11-12-downing-street) there needs to be not only an understanding of typical energy use but also the nature of these buildings, the cost of that energy use, how it relates to past energy use, and what the other consequences of that energy use are.

Let me make it very clear I am not arguing that transparency is bad. Rather my argument is that transparency is complex and indeed the tendency of discourses about transparency to classify it as either ‘good’ or ‘bad’ is hiding that complexity. Now of course it could be argued that my tendency to highlight its complexity is just part of parcel of my tortured academic outlook but as clear from above, a failure to appreciate the complexity of transparency is really a failure to understand what it is and what it involves. A useful analogy here is with the different medical technologies and techniques we use for seeing inside the body such as x-rays, MRI scans, ultrasounds, blood tests, biopsies, and autopsies. These technologies play an important role in both aiding understanding about how the body works as well as providing a means of taking action. Yet these technologies have different strengths and weaknesses and are used for very different reasons (e.g. research and for diagnosing a range of health problems) and these will influence which mechanisms are used. You wouldn’t use an X-ray if you wanted to measure sugar levels in the blood for example. Part of why you will use these different technologies will also depend on issues to do with costs, ethics and practicalities. Moreover, each technique is a substantive technology itself, which is constantly evolving (take for example the recent development of 3D ultrasound). Far more importantly, the images from these technologies are rarely self explanatory  – they need expertise and craft to read and they are often ambiguous. The inside of the body is not replete with little labels explaining exactly what is going on – the images need to be scrutinized carefully and interpreted. In light of all this, it is not surprising that the use of these various technologies are embedded in different professional and academic disciplines (e.g. radiology) and that within those disciplines there is a rich and nuanced discourse about when particular technologies should be used (see for example the range of guidelines on the Royal College of Radiology website – http://www.rcr.ac.uk/), the nature of such technologies, the expertise needed in using them, and the consequences of them. Recognizing all of this is not to damn or praise these medical technologies. Nor is it to say that these technologies should be just left to the experts – expertise may be needed to understand these images but that is not to say we should presume expertise is all knowing and that it should be completely deferred to. Rather my point is a different one.  Making the inside of the human body visible is not just about getting hold of lots of X-ray machines or the like – it is far more complex.

In regards to the transparency of public administration that complexity is not just an abstract thing that I as an academic am getting all worked up about. It is very real. There are many different goals being pursued through transparency and some of them are arguably contradictory. Transparency mechanisms have many different facets and the courts and others are dealing with the consequences of transparency. The problem is that much of the discourse about transparency doesn’t touch on any of this in a sustained way. Academics and policy-makers need to broaden and deepen their understanding of transparency. They need to move away from a simplistic pro/anti debate and they need to see that transparency, like an ultrasound,  is not a solution – an end point – a happy every after. Rather it’s a starting point that requires serious reflection about the intellectual and practical challenges it creates.

Dr Liz Fisher is Reader in Environmental Law, Corpus Christi College and Faculty of Law Oxford. The issues discussed in this piece are further elaborated upon in E Fisher, ‘Transparency and Administrative Law: A Critical Evaluation’ (2010) 63 Current Legal Problems 272-314.

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Roger Masterman: How ‘British’ would a ‘British’ Bill of Rights be?

The perception that the protections afforded by domestic courts under the Human Rights Act 1998 (HRA) should replicate the rights enforced by the European Court of Human Rights at Strasbourg has been a leitmotif of judicial reasoning in rights cases since the implementation of the HRA.  The HRA is an Act of the United Kingdom Parliament, yet domestic law alone cannot provide an adequate account of its effects.  The HRA’s ‘Convention Rights’ are – at the very least – defined in the same terms as rights found in the European Convention on Human Rights, and their domestic effects are – as a result of the combined effects of s.2(1) and s.6 HRA – conditioned by the case-law of the European Court of Human Rights.  The HRA may well be a domestic statute, giving rise to rights enforceable in domestic law, but the Strasbourg roots of its substantive protections are inescapable.

As a result, questions relating to the nature and character of ‘the Convention Rights’ – are they domestic rights, defined and enforceable by domestic courts?  Or are they European rights, enforceable by domestic courts, but defined at Strasbourg? – have provided a recurring subtext to many HRA decisions.  The visible effects of this debate – and the general judicial tendency to downplay the distinctly domestic content of ‘the Convention Rights’ – can be seen in the numerous suggestions that domestic judges applying the HRA should only ‘take their lead’ from Strasbourg, should follow the ‘clear and constant’ jurisprudence of the European Court, and should provide ‘no less’ but ‘no more’ protection than would the Strasbourg Court, have combined to produce a domestic rights jurisprudence which, in its substance, in many ways closely resembles that emanating from the European Court of Human Rights.

Tom Hickman’s excellent recent book, Public Law after the Human Rights Act (Oxford: Hart, 2010) reminds us that the perception that the HRA is merely a device designed to ‘mirror’ rights which would otherwise only be available to applicants at Strasbourg runs deep.  But while the limitations imposed by the Ullah doctrine and its accompanying presumption in favour of the application of relevant Strasbourg case-law continue to resonate in decisions of the highest courts, a growing number of decisions by the House of Lords and Supreme Court have served to illustrate that the ‘mirror’ metaphor oversimplifies the dynamic relationship between national law and the European Court of Human Rights.

In its political incarnation however, the so-called ‘mirror principle’ continues to enjoy considerable currency, and perceptions that the United Kingdom is inflexibly bound by decisions of the European Court of Human Rights have clearly underpinned recent calls for the United Kingdom to extract itself from the Strasbourg jurisdiction, or to seek alternative ways of avoiding what have been referred to as the ‘occasional extravagances of the Strasbourg Court.’

Against this backdrop, it seemed likely that the relationships between domestic law – including any future Bill of Rights – and the Convention jurisprudence, and the relationship between domestic courts and the European Court of Human Rights, would figure highly in any attempt to amend or repeal the HRA.  The bouts of sickness which particular decisions of the European Court have provoked amongst senior politicians appeared to indicate that debate would focus on ways in which the influence of the European Court over domestically-protected rights might be reduced and better effect given to ‘British’ rights and interests.  Yet instead, the Commission on a Bill of Rights has been asked to investigate the creation of an instrument which ‘incorporates … all our obligations under the European Convention on Human Rights.’

These are strong words.  By contrast with the tenor of recent discussions over the competence and legitimacy of the European Court of Human Rights there is little indication given by the Commission’s terms of reference that any new domestic instrument should afford courts greater scope to depart from, or otherwise fail to adhere to, Strasbourg case-law, nor is there any reflection of crude resolution – prompted by debates over prisoner voting rights – that Parliament alone ‘makes the laws of the land.’

Instead, the Commission’s terms of reference hint at the inclusion of Convention guarantees (for instance Article 13) not currently found among those given effect by the HRA and – in the language of ‘incorporation’ – at a more consciously ‘constitutional’ measure than currently exists.  Our continued adherence to the rights protected by the Convention is, it seems, assumed.

What then are we to make of this disconnect between the clear antipathy of senior politicians to the jurisdiction and influence of the European Court of Human Rights and the indications that its influence would not only be maintained, but solidified, under a new Bill of Rights?  The Commission’s terms of reference might well be seen as a concession to the Liberal Democrats, who have long argued in favour of the constitutional protection of human rights.  They might be seen as an attempt to railroad the Commission into making recommendations that will be unpalatable to the more Euro-sceptic of Conservative supporters.  They might well be both.

Mark Elliott’s earlier post on this blog has explored ways in which a re-calibrated Bill of Rights might reduce the influence of the Strasbourg court over the shape of domestic rights protections, but assuming the Commission’s terms of reference are to be taken seriously, it may be that they reflect the tacit acknowledgement that it is in fact unnecessary to radically reform the relationship between national law and the obligations of membership of the Convention system (reform of the European Court itself, another Government objective, being another matter).

From the Strasbourg perspective, the Convention system arguably permits sufficient flexibility to reconcile the constitutional quirks of individual member states with the overarching supervisory role of the European Court and the maintenance of the Convention’s minimum standards; methods of achieving compatibility are largely left to domestic law-makers, while the margin of appreciation doctrine ultimately stands in opposition to the suggestion that our domestic rights jurisprudence is dictated to us by Strasbourg.

From the domestic perspective, the requirement that courts ‘take into account’ decisions of the European Court of Human Rights is increasingly showing itself able to permit flexibility in the manner in which the Convention case-law is translated into the domestic context – most notably with the illustration by the Supreme Court in R v Horncastle that even ostensibly clear Strasbourg authority will not simply be followed as a matter of course – and nothing in the Human Rights Act’s text or case-law excludes the possibility that Parliament might legislate in apparent contravention of relevant and potentially applicable Strasbourg authority.

The idea that national law is meekly subservient to the ever-increasing demands of the European Court of Human Rights therefore provides a convenient caricature for politicians in need of a scapegoat but says little about the discretion afforded to member states in the implementation of the Convention’s minimum standards, or of the ways in which the views of national authorities necessarily feed into – therefore condition, possibly even constrain – the European Court’s decision-making.

‘The Convention Rights’ under the HRA are a peculiar hybrid of Convention and domestic law, and as a result are neither purely European nor domestic in nature.  The core rights enshrined in any successor instrument appear to be destined to follow suit.  Even acknowledging the fact that the Commission is also directed to investigate the inclusion of rights which ‘build on’ the UK’s obligations under the Convention, the continuing influence of the Convention case-law over the content and development of domestic protections for rights of expression, privacy, assembly and association, life and so on, seems to be assured.  The distinctly ‘British’ contribution to any future Bill of Rights is therefore most likely to emerge through acknowledgment by all three branches of the genuinely symbiotic relationship between the European Court of Human Rights and national authorities, rather than through judges and politicians alike treating the Strasbourg jurisprudence as ‘a straightjacket from which there is no escape’.

Roger Masterman is a Senior Lecturer in Law at Durham University.

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Please join the UKCLG!

If you are finding the UK Constitutional Law Group blog interesting, please consider joining the Group to support the blog and other activities financially by paying £15 membership during 2011. We run a lean organisation, but some outgoings have to be covered each year. In addition to the costs associated with the blog and events, the Group also has to pay a subscription to the International Association of Constitutional Law.

It’s easiest for us if you pay online here (a £1.02 fee will be added)

… or if you can’t face that, please send a cheque for £15 (payable to ‘University College London’) to the Group’s honorary treasurer, Dawn Oliver at: Faculty of Laws, UCL, Bentham House, London WC1H 0EG. Thank you.

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Colm O’Cinneide: In Defence of the Strasbourg Court

The European Court of Human Rights and the influence that its judgments exert over UK law have recently come under sustained attack. The Court’s critics include Lord Hoffmann, the think-tanks Policy Exchange and Civitas, an assortment of Tory and Labour MPs ranging from Dominic Rabb to Jack Straw, and right-leaning newspapers such as the Daily Mail and the Sun. The judges of the Court have been criticised as being of variable quality, while its judgments are said to lack clarity and rigour. Furthermore, the Court also stands accused of foisting a form of undemocratic human rights imperialism on the UK, and of failing to show sufficient respect to the views of national politicians and judges.

These attacks on the Court surfaced with particular force during recent debates on whether prisoners should be given the right to vote. They have given impetus to the campaign for a British Bill of Rights and also triggered strident (if vague) demands for ‘reform’ of the Court. However, much of this criticism has been based on questionable assumptions about the role and functioning of the Strasbourg Court, which at times seem to be based on little more than an unhealthy dose of common law parochialism.

To begin with, the accusation made by Lord Hoffmann and others that the Court is insufficiently deferential to national law and practice in how it interprets the text of the when it decides cases under the European Convention on Human Rights (ECHR) is difficult to reconcile with the raison d’etre of the Court’s existence. When state parties ratify the ECHR, they effectively make themselves accountable to the Strasbourg Court for how they respect individual rights. The Court’s role is to interpret and apply the text of the Convention in a manner that ensures that individuals are not denied effective and meaningful enjoyment of these rights. Its job is not to interpret the ECHR as a minimalist promise by states to behave themselves, or to apply an overwhelming presumption that the law and practice of state parties is above reproach, or to confine its attention to flagrant breaches of human rights norms, as its critics have advocated. None of these interpretative approaches would be consistent with what is now established practice in international law. The Court cannot give a general carte blanche to state law and practice while remaining faithful to its prescribed task under the Convention.

Furthermore, the Court has been happily applying its interpretative approach for decades. Recent controversial decisions such as  Hirst v UK (2006) 42 EHRR 41 (prisoner voting rights) have been decided on a similar basis as earlier decisions such as Dudgeon v UK(1981) 4 EHRR 149 (ban on homosexual sex contrary to the ECHR), Smith and Grady v UK (1999) 29 EHRR 493 (ban on homosexuals serving in the armed forces incompatible with Article 8 of the Convention) and  Goodwin v UK (2002) 35 EHRR 447 (failure to give legal recognition to the change of gender of a post-operative transsexual also incompatible with Article 8 ECHR). Its critics are very vague when it comes to identifying what exactly they dislike about the Court’s decision-making, or how decisions like Hirst differ from these earlier judgments which are now widely recognised as having being correctly decided.

The argument that the Court is less than competent in how it goes about its business is also highly questionable. The Court is groaning under an excessive case-load. Like all courts, it makes the odd dubious decision. Furthermore, some of its judges may not always be top-quality. However, there are two sides to this particular story. Many of the Court’s judges are intellectually outstanding, and they receive good quality support from the lawyers in the Registry of the Court. Its judgments may sometimes be relatively opaque to common law eyes. However, its task is not to produce precedent fodder for English courts, and its reasoning is often crystal clear on the essentials of a case. Furthermore, an arguable case could be made that the Strasbourg Court often gets things more consistently right than many of its national counterparts. The Court’s decisions in the  Marper v UK (2009) 48 EHRR 50 (DNA evidence) and   Gillan v UK (2010) 50 EHRR 45 (anti-terrorism stop and search powers) cases reversed earlier decisions of the House of Lords, and now are being given effect with enthusiasm by the coalition government’s Protection of Freedoms Bill.

Its critics also complain that the Court contains judges from small and apparently insignificant jurisdictions. For example, Lord Hoffmann in his lecture to the Judicial Studies Board in 2009 poured especial scorn on the effrontery of a Slovenian judge who had the cheek in a concurring opinion in  Von Hannover v Germany (2005) 40 EHRR 1 to criticise the free speech jurisprudence of the US Supreme Court. However, this comment oozes common law insularity. There is no intrinsic reason why a Slovenian judge would be less capable of passing comment on comparative free speech case-law than would, say, a Scottish judge, or one from Northern Ireland.

Indeed, Lord Hoffmann’s example neatly undermines his own case. The Slovenian judge he mentions, Judge Zupančič, served on the Slovenian Constitutional Court and the UN Committee Against Torture before joining the Strasbourg Court, and has both a LLM and a SJD from Harvard Law School. He thus appears to be extremely well-qualified both to decide claims under the ECHR and to make comments on the US case-law, notwithstanding the alleged handicap of his Slovene nationality.

Criticisms of how the Strasbourg Court goes about its business of interpreting the ECHR are thus often wide of the mark, or based on casual generalisations that begin to fall apart under close scrutiny. This in itself will not assuage all the critics of the influence that the Court currently wields over UK law, many of whom object to an international court deciding important questions of law and policy irrespective of how well or otherwise it performs its adjudicative task. However, critics of how the ECHR jurisprudence has come to infuse UK law should think twice before basing their arguments on a caricature of how the Court operates.

Over the last decades, the Strasbourg case-law has often forced a re-assessment of common law complacency and the insularity that periodically afflicts UK constitutional thought. It would be regrettable if the ongoing Bill of Rights debate were to be distorted by attacks on the Strasbourg Court that appear to lack real substance.

 

Colm O’Cinneide is a Reader in Law at University College London.

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Stephen Sedley on superinjunctions and parliamentary privilege

Stephen Sedley, the UKCLG’s honorary president, has an article in the London Review of Books “The Goodwin and Giggs Show” (2011) Vol. 33(12)  that will be of interest to many UKCLG members. Read it here.

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Gordon Anthony: Article 2 ECHR, controversial deaths, and the “mirror principle”.

Last month’s SC ruling in Re McCaughey ([2011] UKSC 20) is the latest in an important line of HL/SC cases to have originated in Northern Ireland and which have had, as their focus, the domestic law reach of Article 2 ECHR. In the ruling – delivered by a 7 judge panel – SC held by a majority of 6-1 that Article 2 applies to an ongoing Coronial inquest into two deaths caused by the State during the Northern Ireland conflict. In broad terms, this means that there should now be more searching Coronial inquests into the use of force by the State in a number of other controversial incidents that have still to be investigated and which are linked to the process of political transition in Northern Ireland. However, when achieving that outcome, SC was required to identify a core point of reasoning from within a ECtHR (GC) judgment that was lacking in clarity and precision (Šilih v Slovenia (2009) 49 EHRR 996 ). Its willingness to do raises interesting questions about the relationship between Strasbourg case law and the “mirror principle” that SC relied upon when making its ruling.

The McCaughey case arose out of a 2009 inquest into the killing of two IRA men, in 1990, by undercover soldiers. From the outset, the Coroner was faced with the question whether Article 2 applied to the investigation, or whether HL’s earlier ruling in McKerr was determinative of the issue. That case had established that HRA does not have retrospective effect in cases involving the right to life and that, even if Article 2 gives rise to continuing obligations in international law, this cannot bring a death that pre-dates 2 October 2000 within the temporal reach of HRA. However, in Šilih, a case concerning a pre-accession death in a Slovenian hospital that was being investigated after accession, ECtHR recast its understanding of the nature of Article 2. In a crucial passage it said that “the procedural obligation to carry out an effective investigation under article 2 has evolved into a separate and autonomous duty … it can be considered to be a detachable obligation arising out of article 2 capable of binding the state even when the death took place before the critical date” (para 159).

The “critical date” in McCaughey, by analogy, was 2 October 2000, and SC’s finding that Article 2 applies to the inquest saw the court distinguish McKerr (its point about the non-retrospective effect of HRA remains good law) and adopt the logic of ECtHR’s “detachable obligation”. The “mirror principle” that guided SC when doing so was based upon the familiar idea that HRA had brought rights home and that, should the ambit of application of HRA not match that of the ECHR, individuals would be required to petition Strasbourg. To avoid that result, SC was willing to reject criticisms of Šilih and to gloss over uncertainty in the ruling about the limits to the new detachable obligation (ECtHR had stated, among other things, that the obligation is “not open-ended” but that it “would not exclude that in certain circumstances the [obligation] could also be based on the need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner” [paras 161 and 163]). Although Lord Phillips admitted to “having difficulty” with aspects of the judgment (para 46) – Lord Hope likewise said that “only the most starry-eyed admirer” of ECtHR would regard the judgment as clear (para 73) – the majority held that the decision ultimately centred on the point that “the procedural obligation to investigate a death under article 2 of the [ECHR] is not only distinct from the substantive aspect of the article but is autonomous and detachable from it” (Lord Dyson, para 121). Lord Kerr, at para 119, sought to clarify when the obligation might be activated by identifying 7 principles that he had gleaned from ECtHR’s ruling.

So what are the implications of McCaughey? Certainly, it might be said, at a doctrinal level, that the case represents a high-water mark in terms of domestic law’s reception of the ECHR. Although the logic of the mirror principle is by no means new to the reasoning of the UK courts, McCaughey essentially saw SC make sense of an international ruling that was evidently regarded as part unsatisfactory. This, of course, has gone some way towards achieving HRA’s objective of bringing rights home, and the ruling should for that reason be welcomed. However, at a time when the case law of ECtHR is increasingly being criticised both at home and elsewhere, it might be wondered how far domestic courts throughout Europe should be expected to make sense of the occasionally unsatisfactory rulings of their international counterpart. If they become unable to do so in the future, ECtHR will not only have complicated rights protection at the national level but likely also invited even more cases onto its already overloaded docket.

Practically, the implications of the ruling are, perhaps, more straightforward. That much is suggested in Lord Brown’s judgment where he noted that “there are 16 ‘legacy inquests’ (involving 26 deaths) currently outstanding on the coroner’s books, a further six incidents (involving eight pre-2000 deaths) referred by the Attorney General … and a further 7 deaths (between 1994 and January 2000) not yet the subject of inquests” (para 102). This all means that Article 2 will apply to that range of unresolved deaths and, insofar as Article 2 inquests provide for closer scrutiny of State actions (a point that was doubted by Lord Brown), fuller accountability may follow. If that is where the reception of Šilih ends, it may help to allay concerns about how military and police operations were conducted in cases such as McCaughey and, in that way, aid the continuing process of reconciliation in Northern Ireland. If other cases arise beyond those listed by Lord Brown – whether in respect of the Northern Ireland conflict or otherwise – the uncertainties within Šilih may yet come back to test UK courts.

 

Gordon Anthony is Professor of Public Law at Queen’s University, Belfast 

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Sebastian Payne: Parliament’s role in conflict decisions

On the 17th May 2011 the Political and Constitutional Reform Committee produced a short report, ‘Parliament’s Role in Conflict Decisions’   (Eighth Report of Session 2010-12  HC 923)

The Committee concluded that there is an urgent need for greater clarity on Parliament’s role in decisions to commit British forces to armed conflict abroad.

In its report, the Committee recommends that “the Government should as a first step bring forward a draft detailed parliamentary resolution, for consultation with us among others, and for debate and decision by the end of 2011”. The Committee points out that “much work in this direction has already been completed, and the process for decision should be relatively swift”.

The report by the Committee was prompted by a surprising announcement by the Foreign Secretary during the Libyan intervention debate held in the House of Commons on the 21st of March 2011. Mr Hague stated that “We will also enshrine in law for the future the necessity of consulting Parliament on military action”.

Given the Prime Minister’s criticism of the role of the courts in human rights matters it is surprising that modifying the war powers by statute is the government’s preferred option. Presumably the government believes that it can draft a bill that will ensure that the courts do not have any role in overseeing challenges to a statutory obligation to consult.

One might think that such a clear and unambiguous statement of intent by the government must mark the end of the debate on whether and how to change the war powers. In fact the problems that the Lords Committee on the Constitution identified with trying to give Parliament a proper role without comprising executive effectiveness will not go away simply by putting the matter into an Act of Parliament.

There is only so much one can glean from Mr Hague’s one sentence as to the intended change. It may be that the war powers will not be embodied in statute. A legal ‘necessity to consult’ does not indicate whether the royal prerogative is to remain but subject to a consultation requirement or whether the prerogative itself is to be abolished and replaced by an Act. In other words will the change be minor or major? Even lesser changes will pose the Government serious problems.

There are a host of problems that the government will have to address. First, who is to be the decision maker on whether to deploy troops, is it the government or Parliament? Being consulted does not necessarily make Parliament the decision maker. Similarly, if there are too many exceptions to the requirement to consult before deployments begin then Parliament’s role will be nominal. Secondly, what is the role of the House of Lords? Politicians trot out the line that since the House of Commons is the elected chamber then only they should have a vote. That argument will not do if the Upper Chamber becomes an elected body. Thirdly, will the legal advice of the Attorney- General be made available to Parliament? The question of the lawfulness of any military action is of crucial influence on whether to approve it or not. Fourthly, what arrangements will be made for a re-approval process if the nature or scale of the operation significantly changes? Finally, after the Iraq War parliamentarians will be acutely aware that having detailed and accurate background information to any conflict will be vital to making an informed choice on how to vote. Such information obviously includes intelligence assessments. What provisions will the government make to provide such information?

I gave both written and oral evidence to the Political and Constitutional Reform Committee. In my written evidence I noted a convention embodied in a resolution will allow the House and the Government the opportunity to develop an appropriate modus operandi. I also pointed out that there is still much that needs to be changed to allow Parliament to effectively influence the policy cycle. There needs to be a re-thinking of the boundaries between the executive and the legislature, part of which should include the Government seeking input from the House at an earlier stage of policy formation.

The Committee in its Report stated “We also welcome the Foreign Secretary’s commitment to enshrine Parliament’s role in law. This is, however, likely to be a longer-term project, to be considered in depth after a parliamentary resolution has been agreed, or if this route fails to bear fruit.”

Sebastian Payne is a lecturer in law at the University of Kent.

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