Monthly Archives: May 2012

Event: Scottish Public Law Group Annual Conference

Scottish Public Law Group Annual Conference

The SPLG’s Annual Update Conference on public law will take place on Monday 11th June at the Roxburghe Hotel in Edinburgh. This full day conference will include sessions covering:

  • An update on Public Law in Scotland
  • Developments in England, Luxembourg and Strasbourg
  • Scotland’s constitutional future: the EU and international law dimensions
  • An insight into the future of the Scottish legal landscape

Confirmed speakers and chairs include The Rt Hon Lord Hamilton (shortly to retire as President of the Court of Session),  The Rt Hon The Lord Wallace of Tankerness QC (Advocate General for Scotland),  Sheriff Principal Taylor,  Roseanna Cunningham (Minister for Community Safety and Legal Affairs), James Mure QC (Axiom Advocates),  Simon Collins QC (Judge of the First Tier Tribunal),  Professor Christine Bell (University of Edinburgh),  Professor Robin Churchill (University of Dundee),  Dr Robert Lane (University of Edinburgh),  Lorna Jack (Chief Executive of the Law Society of Scotland),  Judith Morrison (Office of the Solicitor to the Scottish Parliament),  Sam Grodzinski QC (Matrix Chambers)  and  Dr Elaine Webster (University of Strathclyde).

The conference will run from 9am to 5pm, followed by a drinks reception.

Tickets are priced at £75 (£25 concessions) (group bookings: 6 places for the price of 5).  Book on-line at:

http://events.constantcontact.com/register/event?llr=h7meksjab&oeidk=a07e5u5c1bdec4569e4

This event should not be missed by those working in public law in Scotland, or with an interest in Scotland’s continuing constitutional development.  The conference is supported by Axiom Advocates, Arnot Manderson Advocates, the Murray Stable and Biggart Baillie LLP. Please direct any enquiries to emily.gilmour@shepwedd.co.uk or jennifer.jack@biggartbaillie.co.uk. Click www.splg.co.uk for more details.

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Stephen Tierney: Canadian Constitutional Change 30 Years On: Notes from a Small Island

A number of events have been held recently in Canada to mark the 30th anniversary of the ‘patriation’ of the constitution through the (Westminster enacted) Canada Act 1982, schedule B of which contained the Constitution Act, 1982. The main developments encapsulated by the 1982 process were the return to Canada of the constitutional amendment formula, allowing the constitution to be changed internally without recourse to the (albeit symbolic) ratification by Westminster; and secondly, the entrenchment of the Charter of Rights and Freedoms within the Constitution Act, 1982. Two anniversary events, held last month in Montreal and Ottawa respectively, are particularly notable for the ways in which they each reflected very differently on these events, and in doing so encapsulated the very different perspectives which are still brought to bear on these processes in Quebec and the rest of Canada. These events and the anniversary they commemorate, if not offering direct lessons for current constitutional debates in the UK, are certainly worth reflecting upon in light of ongoing debates in this country concerning both devolution and bills of rights.

The conference in Montreal was held at Université du Québec à Montréal by the International Association of Québec Studies and was titled ‘The patriation of the Constitution, 30 years later. What we can do? Where do we stand?’. This title itself suggests a degree of dissatisfaction with the 1982 changes. And indeed the conference was in many ways a retrospective on the 1981 process whereby Prime Minister Trudeau, with the agreement of most provincial premiers, but minus crucially the consent of Quebec Premier René Lévesque, asked Westminster to complete the patriation process. The sense of injustice, fuelled by the outcome of two legal challenges to this process in the Patriation Reference and Veto Reference cases before the Supreme Court of Canada, which served to deny the necessity of securing Quebec’s consent to the process, still lingers. The SCC broke new ground in recognising a convention of substantial provincial consent to constitutional amendment but did not extend this to include the need for Quebec’s consent specifically. It also fell back on a category distinction between law and convention, meaning that, in any case, provincial consent would not be legally enforced to prevent patriation going ahead at the behest of the federal government.

In many ways the frustrating story of the 1980-82 process is that, despite the basis for so much agreement on substantive issues, a procedural failing has served to undermine the legitimacy of the Constitution Act, at least in the eyes of many Quebecers. There was broad consensus across Canada that the UK should play no further role in amending the constitution, there was scope for agreement on what a new amending formula would look like, giving effective vetoes to a number of Canadian regions or powerful provinces, and there was even the opportunity to arrive at an agreed bill of rights across the country. But the sense Quebec felt of being rail-roaded into the new arrangements has meant that this level of substantive consensus has been seriously undermined for decades by a flawed process. In the UK of course constitutional changes have worked much more consensually in recent times, as we have seen with the Government of Wales Act 2006 and the Scotland Act 2012. But as we turn to the potentially more fraught engagement with constitutional change through a referendum in Scotland the Canadian experience of flawed constitutional process should be carefully considered.

The story of the Charter is interesting since, after 30 years, and despite the failings of the 1980-82 process, the Charter enjoys very high levels of support in Quebec as in the rest of Canada. Whereas the conference in Montreal focused upon patriation as failure, the event at the University of Ottawa – ‘Checking Our Constitution@30: The Influence of the Canadian Constitution and the Charter of Rights and Freedoms on Legislation, Identities and Federalism’, was much more a celebration, with a number of affirmations of the Charter emphasising its impact not only on the legal system and different areas of social policy, but upon the very identity of Canadians themselves. The Charter was held up as a totem of collective identity particularly for younger Canadians whose civic sense of belonging to the state has for thirty years been strongly shaped by an education process that has promoted the Charter and in doing so has helped embed this instrument within the popular imagination as an essential component of ‘being Canadian’. Again, as the UK reflects upon the much more attenuated sense of affiliation people have with the Human Rights Act, which after all incorporates a generic international instrument, and as debates proceed about a domestic bill of rights, it is important to remember that such an instrument, beyond the legal measures it might contain, can also assume a strong nation-building character. It is also pertinent to recall that the Charter emerged at a natural moment of constitutional change in 1982, whereas it is not clear that 1998 or indeed today represent propitious moments to mobilise widespread self-reflection by British citizens concerning their constitutional identity/ies. It is also vital to note that any debate about a bill of rights cannot be meaningfully separated from parallel debates about the multinational nature of the UK and changes in the devolved settlements. For example, how would such a bill or rights reflect the multiple national identities and the possibly varying priorities given to different values across the UK? Indeed, would such a bill be able to locate and reflect a set of pan-British values, how could such a process be undertaken and how could consensus be reached? Thirty years on, the Charter is clearly popular across the Canadian state, but the process by which it was constitutionally endorsed without Quebec’s consent demonstrates both how difficult it can be to frame a bill of rights for a multinational state, and how, if done badly, such a process can do more to harm than to foster nation-building within a demotically complex state.

Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh

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Filed under Comparative law, Devolution, UK Parliament

David Mead: Be careful what you wish for….it may never happen: the curious incident of peaceful protest under the coalition

If a week’s a long time in politics, then two years is surely a couple of lifetimes? Hidden away – it now seems – in the coalition’s Programme for Government was the pledge to “restore rights to non-violent protest”. Even in the civil liberties section, it was always the poor relation to the big hitters that were thought more in keeping with the zeitgeist: regulating CCTV, taking action on DNA databases and misuse of anti-terrorism legislation, scrapping ID cards and of course establishing a Commission on a British Bill of Rights.  The antics of the red tops, currently being played out at Leveson, has shifted the focus onto press behaviour but the past few years has also – perhaps perversely in that light – been a real worry for press freedom. The concerted campaign on libel reform has achieved a meeting of political minds – and investment of political capital – in the changes proposed in the Queen’s Speech a week or two ago, with plans that “serious harm” be shown, alongside a statutory public interest defence.

It is something of a puzzle that free speech of a different hue, the right to dissent and to protest, is not simply under the radar but has almost disappeared from the political map. It is exactly two years since the coalition agreement was fleshed out: where are the consultations, the public statements of support, the draft bills and other indicators of government interest? The single, positive change is that restrictions on demonstrations around Westminster have been removed – though protest camps in Parliament Square remain unlawful. If the two negotiating teams thought that was the extent of the problem, they were seriously misinformed. Not only was that change not in the wide-ranging Protection of Freedoms Act – its natural home – but in the Police Reform and Social Responsibility Act 2011 and indeed didn’t even feature in the original Bill but was inserted in Committee in early 2011. That was about the same time as the only public acknowledgement of the pledge in two years. In his policy announcement on civil liberties on 7th January 2011, Nick Clegg simply asserted that the right would be restored – without any detail analysis or explanation of what that might mean or what would be needed. The sidelining of protest couldn’t have been clearer.

So all we have to show is a solitary piece of legislative tinkering as an afterthought, one bland unsubstantiated statement and one consultation, late in 2011, angled (still) towards promoting public order and police powers. Surely, protest is simply free speech writ large – without any of the vestiges of commercialism that flavour even the most upstanding newspaper reports and investigations? No newspaper exists simply to expose wrongdoing – though of course the threat of libel hangs over anyone who publishes, whether mass media or do-gooding pamphleteer. Writ large too because protest and dissent also (perhaps by definition) go directly to political participation – presenting, questioning or confirming democratic alternatives – even if it is not avowedly partisan. Can we always say the same of alleged libels? Yet that singular aspect of free speech is now to benefit from special legislative intervention. If free speech is now recognised politically as A Good Thing, why isn’t the same respect accorded when we try to make our views known by protesting?

Libel law of course has, in footballing terms, home advantage: it’s always easier to mount a media campaign when the media is on your side even more so when what is being argued for are better terms and conditions for the media. Any editor would think: “what’s not to like?” It also chimes more easily perhaps with libertarian hearts and minds. Perhaps the perception is that protest is hale and hearty: after all if 30,000 police officers can march across London, where’s the problem? None of these though really account for the paucity of political engagement with the question of how we regulate the expression of dissent. A likelier explanation is the nature of the coalition and the turmoil at its heart.  The pledge really stemmed from the Liberal Democrats. Their manifesto committed them to restore the right to protest by reforming the Public Order Act to safeguard non-violent protest even if it offends and to restrict the scope of injunctions issued by vested interests. The Tory’s manifesto was silent – on that particular civil liberties issue at least. Unsurprising really, as it was Tory peers in the wash-up who objected to the Constitutional Reform and Governance Act 2010 including provisions overturning the ban on demonstrations near Westminster. Such inertia yet, to take one simple example, the Department for Business, Innovation and Skills was recently able to find the time to consult on removing the dishonesty from the cartel offence in the Enterprise Act 2002. A matter of priorities, and the all-pervasive financial & economic agenda?

It’s not simply that peaceful protest is the human right that dare not speak its name – it’s been in retreat. Breach of the peace remains the catch-all for dealing with any sort of likely disruption, as well as acting as the underpinning authority for kettling more generally. Cases like Austin, at Strasbourg, and here Moos and McClure (where the Court of Appeal overturned the only successful kettling case to date) do not paint a happy picture. The thorny issue of finding physical space to hold a protest – with the commercialisation of formerly public land – is in turn problematic, made no better by holding that distance and the cost of daily travel cannot justify the establishment of a semi-permanent protest site. That decision, in Gallastegui last month, joins the line of unsuccessful occupation cases over the past couple of years, like Hall (Democracy Village) and Samede (Occupy LSX). The point here is not that the occupiers should have won but that an engaged polity needs to find space to discuss the extent to which we should allow such forms of protest. To this catalogue we might add the admittedly contentious decision in Abdul v DPP, the conviction under s.5 of the Public Order Act 1986 of those protesting in fairly vituperative terms (“Baby killers” “Rapists” “Murderers”) about the war in Iraq at a homecoming for British troops and the continued place in the armoury of aggravated trespass. The case against those 145 members of UK Uncut who “occupied” Fortnum and Masons in March 2011 would be a prime example, as would the sit-in protests at the Ahava store in Covent Garden, based on its connections to the Occupied Palestinian Territory on the West Bank, in Nero v DPP. All of this against a backdrop of continuing disquiet at aspects of policing practice: the revelations about undercover surveillance and embedding officers in environmental groups; Kent police paying out £5.3m to all those it subjected to blanket (and so arbitrary) stop and search at the Kingsnorth Climate Camp; and allegations of excessive force as police kettled student protesters on Westminster Bridge in December 2010.

In short, it is hard to think of anything particularly positive from the last few years. Following last year’s consultation (and indeed a recommendation of the Joint Committee on Human Rights in 2009), reform of s.5 of the Public Order Act 1986 is back on the political agenda courtesy of Peter Tatchell last week. Even if there is movement there, restoring the right to peaceful protest will not be achieved simply by tinkering with demonstrations around Westminster and making it no longer an offence to utter “insulting” words. One of the problems – as I argue in an article to be published in Public Law next year – is the increasing use of private law to control and contain protesters. This subverts the more transparent and accountable public law framework: arrests for crimes and conditions imposed on marches and assemblies. Not only are protesters subject to the grace and favour of private landowners – which explains why Occupy LSX were outside St Pauls not the Stock Exchange, over which Paternoster Square Holdings had obtained an injunction – creating what we might call a “differentiated reality” of protest, but we are witnessing an increasing reliance on anti-harassment and libel injunctions (or SLAPPs, a transatlantic import) by target companies. This is what lies behind the second limb of the Lib Dem manifesto commitment.

So, what should the immediate future hold? Two years ago, just before the general election, I called for a Royal Commission into Peaceful Protest. The need appears to have become no less pressing in the intervening period. We need to turn the focus away from the UK’s historic attachment to order maintenance; we have several Public Order Acts but no Peaceful Protest Act. First we need to eradicate the concept of “unlawful” assembly from both law and policing practice. The right to protest peacefully is an individual right not something defined out, and so lost, simply because others are violent or intend serious harm. Seeing protesters as an amorphous mob lies behind the legitimising of kettling, treating everyone as a potential threat on the basis of suspicions of perhaps a handful. Any Peaceful Protest Act would provide criteria to assess whether or not a protester is “peaceful”; its antonym is violence, not disruption or inconvenience. We should – and indeed must – accept as legitimate forms of protest that disrupt and obstruct us, as part and parcel of a vital democracy. This echoes Michael Sandel’s concerns about markets: that they reduce our shared experiences and so diminish democratic life. It is what David Feldman calls “coerced toleration” or as Lord Scott out it in Pro Life: we simply do not have the right to be offended by certain forms of speech. For too long protest NIMBYism has dominated; without respecting the views of others, why should I be able to demand my own be heard? Worse, we think nothing of the inconvenience caused by all-night queues outside the Apple store or the disruption at 5:00 on Saturdays as football crowds disperse yet we clamour for a clamp down when a march causes temporary street closures. The wider public social utility of my right to dissent needs re-affirmation. Furthermore, we should be prepared to accept the political legitimacy of certain forms of non-violent direct action. Where it is obstructive or disruptive but is so only temporarily, or incidentally or symbolically, a pressing case is needed to justify restricting it, the more so perhaps for views which run counter to the mainstream and so will never otherwise reach the political agenda. There is a world of difference between a few protesters linking arms outside an arms factory for five minutes to prevent workers entering and a group which tries to dismantle an entire fighter plane. That would allow us properly to distinguish intentional intimidation or obstruction aimed at stopping an activity itself done as a supplanting of the democratic process by effecting change directly.

Other key elements in any new legislative framework would be that a protest impact statement is required for all future proposals. This would explain why a new, bespoke offence is needed to capture whatever discrete anti-social activity is being carried out. History shows that knee-jerk laws in this area are prone to misuse or, perhaps as worse, massive under-use. The need for new laws may not be down to any substantive gaps but to evidential difficulties under existing laws, which a new offence simply would not solve. A Peaceful Protest Act would provide for two more pressing reforms: codifying and constraining the common law power to take preventive action on grounds of breach of the peace, containing containment so to speak, and creating a limited right of access to quasi-public land for the purposes of protest – as Tom Watson unsuccessfully endeavoured to do in the course of the Protection of Freedoms Bill becoming law last year. Last, it would respond better to the need to balance the legitimate rights of businesses to be free from activities designed directly to obstruct its trade and the rights we all have to persuade employees, suppliers and customers not to buy from, sell to or work for that company. There have been enough instances where injunctions have been granted to prevent free speech and dissent: disconcerting and ill-judged perhaps, hostile and unwelcome certainly but peaceful protest nonetheless.

Maybe it’s not the broken society that the coalition needs to worry about, but broken promises?

David Mead is a Senior Lecturer in Law at the UEA Law School. 

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Filed under Human rights, Judiciary, UK Parliament

Bradley W. Miller: Proportionality and Legislative Purpose

In conducting constitutional review with a proportionality test, much depends on the how the purpose of the challenged legislation is characterized by the reviewing court.  It is a commonplace that the loftier the purpose attributed to the legislation, the more difficult it will be to judge that legislation to be disproportionate at the balancing stage.  The less important the attributed purpose, the easier it will be.  The importance of getting the purpose right, in this sense, is well-documented by academics and well-understood by counsel; succeed in characterizing the purpose, and success on the ultimate question will likely follow.

Somewhat less studied is this short-cut:  If the purpose can be characterized as wholly improper, the legislation will fail at the very first stage of the proportionality analysis.  So there is a powerful incentive for those challenging the legislation to characterize the purpose as improper.  Nevertheless, a finding of an improper legislative purpose is something of a rarity.  Why should that be?

For one thing, we would expect that governments that pre-vet their draft bills through battalions of constitutional lawyers should pick up on these sorts of problems at an early stage.  So contemporary legislation, at least, should only suffer from obvious defects of this nature in extraordinary circumstances.  The situation might be different, though, for legislation that pre-dates contemporary vetting procedures.  It might be thought that the legislators of, say, the 19th century not only lacked this institutional support, but also lacked the inclination to suborn to the principles that were later posited in contemporary bills of rights.  The real surprise, according to this line of thought, would not be that some pre-bill of rights legislation carried an improper legislative purpose, but rather that any such legislation was enacted with what we now would accept as a proper purpose.

Another reason for the rarity of condemnations of legislative purpose of new legislation is the confrontational nature of the finding.  It is one thing for a reviewing court to tell Parliament that it chose the wrong means to achieve a salutary objective, or that it overlooked some of the side-effects of a laudatory program.  It requires rather more nerve to assert that legislation was enacted by Parliament precisely to carry out an unlawful, corrupt, or even vicious purpose.

Would it make any difference if the responsible Parliament sat two or three generations ago?  It would be less confrontational to impute improper motives to legislators whose electoral mandates expired, say, 70 years ago.  They will not have left behind the same volumes of paper as their successors to speak to the purposes behind their legislation.  And the legislators of the previous century will have few contemporary defenders, particularly if they sat at a time that contemporary judicial and legislative elites tend to caricature or disparage for its putative lack of sophistication.

What I am suggesting is that there may be a special hazard in conducting proportionality analysis with respect to the constitutionality of ‘vintage’ legislation.  The passage of time since the legislative enactment can block the inhibitory pathways that make courts more reluctant to attribute bad faith to contemporary Parliaments.  And misunderstandings of language and patterns of thought – not to mention self-congratulatory attitudes about moral progress – can derail attempts to understand the reasoning behind older legislation.

This hazard of mischaracterization is amply illustrated in Canadian case law where courts have characterized the purposes of criminal offences related to sexual acts.  The most recent example (and one could draw almost at random from the dockets of the past 20 years) is from a decision of the Court of Appeal for Ontario that invalidated several of the Criminal Code R.S.C., 1985, c. C-46 provisions criminalizing matters related to prostitution, Canada (Attorney General) v. Bedford, 2012 ONCA 186.

The Ontario Court of Appeal came to the surprising conclusion that none of the various Criminal Code provisions related to prostitution (prohibitions on maintaining a bawdy house, living off the avails of prostitution, or communicating for the purposes of prostitution) could be characterized, either separately or taken as a suite of provisions, as directed towards the eradication of prostitution.  Parliament’s attitude towards prostitution, it was said, is no different than its attitude towards any other legal commercial enterprise.  Prostitution was not to be discouraged, but to be tolerated.

The conclusion seems open to question, resting, as it does, on the mere absence of a parliamentary record needed that positively establishes the contrary.  We can contrast the Court of Appeal’s treatment of this question with the Supreme Court of Canada’s treatment of the Tobacco Act, S.C. 1997, c.13 in Canada (A.G.) v. JTI-Macdonald Corp., [2007] 2 S.C.R. 610,  which is not only more recent legislation but addresses a less controversial subject.  Like Parliament’s approach to prostitution, the Tobacco Act does not prohibit the acts of manufacture, purchase, or consumption of tobacco products.  Instead, pursuant to the federal criminal law power, it prohibits most tobacco marketing practices, and severely restricts the ability of cigarette manufacturers to communicate with consumers.  When reviewing this legislation, the Supreme Court of Canada had no difficulty coming to the conclusion that its purpose was to discourage tobacco use, even though the means chosen did not include a ban on the sale of cigarettes.

Why the difficulty in concluding that the prostitution-related offences were intended to discourage or hamper prostitution?  What can explain the difference in the characterization of the purposes of these statutes?  If there is no relevant difference in the policy approach, the explanation must lay elsewhere.

The timeline may provide a partial answer.  The bawdy house provision, for example, has been on the books for over a century, and was inherited from English common law.  Documentation of its purpose is slim and provides the reviewing court with a great deal of room to construct a purpose.  The Tobacco Act, in contrast, was enacted in 1997 and, in keeping with contemporary drafting practices, is much more explicit as to its purpose.

The rest of the answer comes through an examination of the judiciary’s peculiar treatment of historical legislation (and case law) predicated on a normative evaluation of sexual acts.  Victorian legislators (and their successors up to the mid-20th century) who criminalized acts of indecency or obscenity are often portrayed as acting so as to preserve conventional morality per se.  That is, they are understood as acting for the comparatively trivial purpose of preventing the offence to the public that is caused by others flouting social conventions.  The conventions themselves are understood to be mere matters of taste – matters that are indifferent in themselves – such that there can be no genuine, free-standing wrong in breaching them.  In contrast, contemporary criminal prohibitions are usually characterized in terms of combating ‘harm’ (usually understood thinly, in the sense of empirically observable acts of violence, theft, fraud, and the like) rather than as preserving ‘morality’ (understood as individualistic, subjective, and incapable of being true or false).

In this respect, the reasoning in Bedford as to what constitutes a proper legislative purpose is both typical and fallacious.  The objectives of the historical bawdy-house provisions are characterized in Bedford as ‘safeguarding the public peace and protecting against corruption of morals.’  This is condemned as illegitimate, on the basis that it constitutes ‘imposing certain standards of public and sexual morality’ for no greater reason than these are the mores of the community.  In contrast, a prohibition of bawdy-houses could be maintained, the Court said, if it were enacted for the purpose of advancing ‘modern objectives of dignity and equality’ [190].

I have argued elsewhere that prohibiting acts for no better reason than to maintain social solidarity, and without regard to whether the acts in question were truly immoral (as Patrick Devlin famously championed), would indeed be an improper purpose.  But it is not at all clear that the bawdy-house provision is well-described in these terms.  It seems implausible that the purpose of legislation such as the prohibition of bawdy houses and related offences was simply to preserve conventional standards of morality qua conventional.   Surely legislators then, as now, were motivated by the moral judgment that certain acts are seriously wrong, including the moral judgment that persons (particularly children) are treated unjustly if they are not protected from observing the occurrence of these acts, and from the inference that their toleration shows that they are accepted by the political community as an acceptable kind of conduct.  That is, Parliament can be taken to have believed: (1) that there is a need to protect the public from a genuine threat, and (2) that it would be an injustice to the people for whom they are responsible (both actors and third parties) if they fail to act legislatively against that threat.

The legislation would have flowed, not from a concern to prevent offence, but precisely from those sorts of considerations that the Court of Appeal for Ontario accepted as properly grounding legislation: concerns about the harms to persons that flow from a denial of their dignity and equality.  Legislatures then as now were motivated to prevent genuine harms to persons.   The judgment that an act is immoral typically flows from the judgment that it causes some harm (either to the actor or to a third party).  Contemporary courts risk misunderstanding (and devaluing) legislation (old and new) to the extent that they manifest the misunderstanding that legislators then were not concerned with “morals” (understood without reference to harm, equality, or dignity), and that contemporary legislators are not manifesting moral judgments, but merely judgments about what is “harmful” (understood without reference to the moral nature of the harm).  The difference between contemporary and vintage legislation with respect to morals laws is often a difference of vernacular, not substance.

Bradley W. Miller is an Associate Professor in the Faculty of Law at the University of Western Ontario.

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Filed under Comparative law, Human rights

Reminder of UKCLG-sponsored meeting on Monday 21 May 2012, 6 pm

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Filed under Comparative law, Devolution, Events

Richard Ekins: Yemshaw and “updating” statutes

Should judges update the meaning of statutes?  Consider Yemshaw v London Borough of Hounslow [2011] UKSC 3, in which the Supreme Court updated a statute.

The question in Yemshaw was the meaning of ‘violence’ in s 177(1) of the Housing Act 1996. The precursor to s 177 was s 1(2)(b) of the Housing (Homeless Persons) Act 1977, which said a person is deemed to be homeless if ‘it is probable that occupation of [his residence] will lead to violence from some other person residing in it or to threats of violence from some other person residing in it and likely to carry out the threats’.  There was no use of the term ‘domestic violence’ in this section, although the term does feature in s 5(1)(iii).  The 1977 Act was consolidated in 1985 and this in turn was recast in the 1996 Act, s 177(1), which used the term ‘domestic violence’ but defined it, just as in the 1977 precursor, to mean ‘violence from a person with whom he is associated, or threats of violence from such a person which are likely to be carried out.’  The section was amended by the Homelessness Act 2002, which inserted a new s 177(1A):

 (1) It is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic violence or other violence against him, or against – (a) a person who normally resides with him as a member of his family, or (b) any other person who might reasonably be expected to reside with him.

 (1A) For this purpose ‘violence’ means – (a) violence from another person; or (b) threats of violence from another person which are likely to be carried out; and violence is ‘domestic violence’ if it is from a person who is associated with the victim.

The new formulation in 1996 made clear it extends to violence against one’s family members.  The 2002 amendment includes ‘other violence’, extending protection to those at risk of ‘violence’ from non-associated persons; but the definition of violence is the same.

Lady Hale gave the lead judgment, arguing that s 177(1) now extends to harmful or abusive action at large.  She said physical violence is only one of the natural meanings of ‘violence’ (another is intensity of feeling and passion).  By 1996, when the term ‘domestic violence’ is used, Lady Hale notes, there is a consensus amongst national and international governing bodies that ‘domestic violence’ is more than just ‘physical violence’.  She argues that:

 ‘…whatever may have been the original meaning in 1977 … by the time of the 1996 Act the understanding of domestic violence had moved on from a narrow focus upon battered wives and physical contact. But if I am wrong about that, there is no doubt that it has moved on now.’ [24]

Her main support for this claim is a major Home Office report in 2005.  This change in understanding, Lady Hale says, is relevant because ‘the courts recognise that, where Parliament uses a word such as ‘violence’, the factual circumstances to which it applies can develop and change over the years.’  She relies on Lord Steyn’s opinion in R v Ireland [1998] AC 147 for this proposition.  She then refers to Lord Clyde and Lord Slynn’s opinions in Fitzpatrick v. Sterling Housing Association Ltd [1999] 3 WLR 1113 , the latter citing Bennion in support.  Lady Hale notes that the Fitzpatrick decision involved changes in relation to the word ‘family’.  She then argues that ‘violence’ is similar to family: it is not technical and its meaning may change over time.  The essential question, Lady Hale says, is whether an updated meaning is consistent with the statute’s purpose.  She concludes:

‘…that, whatever may have been the position in 1977, the general understanding of the harm which intimate partners or other family members may do to one another has moved on. The purpose of the legislation would be achieved if the term ‘domestic violence’ were interpreted [to include] ‘physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm.’ [28]

Lady Hale recognises some problems with this interpretation, which I note below. Interestingly, Lord Brown too, in his quasi-dissent, refers to the ‘always speaking’ approach or the Fitzpatrick principle and says the question is whether the court should apply it here.  He suggests various reasons why ‘violence’ means ‘physical violence’ yet does not dissent.

Why object to updating?  The problem with updating is that it is inconsistent with legislative authority. The statute has been chosen by the legislature and may not be amended by any other. Updating the meaning of the statute, in the sense I have discussed, is to amend it. It is irrelevant that some legislators prefer updating, for it is inconsistent with authority. The updating doctrine is an illicit Henry VIII clause of uncertain application. This means the content of the law changes when word meaning changes, which is arbitrary. This is a very poor way to decide when or if to change the law for there is no careful consideration, by relevant authority, of whether this change is warranted. Instead, changes turn on (are mediated through) arbitrary word manipulation and then are applied retrospectively.  It is uncertain when or if the content of the law is liable to updating or will be changed. And it is very difficult for the legislature to avoid its decisions being amended in this way.

Let me return to Yemshaw.  I take it the legislature’s intended meaning in defining ‘violence’ as it did was to convey the type or class ‘physical violence’, the deliberate infliction of force.  The legislature’s choice of language in 1977, 1996 and 2002 make this the obvious inference. If ‘violence’ includes psychological abuse, the term should include threats whether likely to be carried out or not.  Yet the statute limits threats to those likely to be carried out. Further, it is awkward to speak of threats to carry out psychological abuse. Moreover, ‘violence’ is constant whether the violent person is associated or not, yet it seems implausible for Parliament to proscribe other harmful action from non-associated. Also, as Lord Brown says, that this is an emergency/deeming provision supports this reading.  Updating the meaning by reference to understandings of ‘domestic violence’ at large and post-enactment is to amend this statute to make it conform to those understandings. That is, it ignores the choice the legislature made and instead takes advantage of word choice.

The court says that the statutory purpose constrains. However, the problem here is that the statutory purpose is being picked out quite arbitrarily. The court says the purpose is to protect people from harm. And this is true to the extent that violent action is a subset of harmful action. But one might think the purpose was to protect people who are at risk of physical violence. Lord Rodger says that to fail to extend this would be to downplay psychological abuse, but this is an argument for extension to harm at large (say, drug use, criminal associates). And indeed, it looks very much like extending the statute by analogy. I note also that Lady Hale answers the argument that her reading extends to abusive conduct from non-associated persons by saying there is a threshold of seriousness. This introduces into the provision an otherwise absent, qualitative standard. This confirms, I think, that the interpretation in this case was illicit judicial amendment.  There is no good reason to update statutes in the sense I’ve discussed.  Indeed, updating statutes is unconstitutional and the courts should stop doing it.

 

This post is extracted from a lecture given to the Statute Law Society, 9 May 2011. 

 

Richard Ekins is a Senior Lecturer at the Faculty of Law, The University of Auckland.

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Dawn Oliver: Parliamentary Sovereignty: A Pragmatic or Principled Doctrine?

Imagine that Parliament has recently passed a provision authorising the indefinite detention without trial of suspected terrorists. The measure was passed during a public panic about terrorism. Public opinion and the press and parliamentarians of the party in government which promoted the legislation were strongly in favour of using such powers. The Home Secretary orders the detention under that provision of suspect A. A applies to the court for release on the ground that the provision in the Act is contrary to fundamental common law principles and the European Convention on  Human Rights. The court finds that the Act is indeed defective in these ways, that compliance by state bodies with fundamental common law principles and the ECHR is a requirement of the rule of law (as it is understood by the courts), a constitutional principle which binds all bodies including Parliament.   The court orders the minister to rescind his order for the detention of A and orders the prison governor to release A.

What would happen if the minister refused to obey the court order? It would be easy to reply: ‘The minister would be committed for contempt of court if he refused to release or order the release of the suspect, of course’, implying that this is an obvious answer to an obviously stupid question. But the implications of such a finding for the relationships between politicians and the courts need to be thought through before such an answer is accepted.

Our system, particularly because we lack a written constitution which is considered by the institutions of government and by the public to legitimate such activities of the courts, depends for its working in part upon mutual respect between institutions, particularly between the courts on the one hand and Parliament and executive bodies on the other. Lord Carswell had this in mind in his speech in the Jackson case when he referred to the mutual respect which has long existed between the legislature and the courts, and he expressed reluctance to endanger that tradition.

According to M v Home Office, a court might, having made an order which a minister disobeyed, just declare the minister to be in contempt. A mere declaration would not do the court’s authority any good at all in this hypothetical situation. It is unlikely that the press or the members of the House of Commons would take the court’s side and press the government to respond positively to the declaration. If the declaration were ignored, the lesson that the executive learned would be that it can get away with such responses to the courts. Would we want that?

Alternatively the court could commit the Home Secretary to prison for contempt. The Minister of Justice might then order the prison governor to release the Home Secretary on the basis that it was unconstitutional, anti-democratic and unlawful – a breach of the rule of law as understood by politicians – for the court to refuse to give effect to an Act of Parliament. The prison governor might obey the Minister of Justice and release the Home Secretary while continuing to detain A, and so himself be committed for contempt, along with the Minister of Justice.  The battle would continue, with press and public opinion probably behind the ministers.

So such a court order might turn out not to be practically enforceable if resisted by government on the ground that it was not legitimate for the courts to change the law unilaterally in such a way. Or, if the order was enforced, the backlash might be that Parliament legislates to politicise the judicial appointment system, the courts could then be packed with judges sympathetic to the government, the Court Service could come under ministerial directions as to the deployment of judges and the listing of cases so as to ensure that ‘unreliable’ judges did not sit on certain kinds of case, ouster clauses could become commonplace. And so on. I think the courts would be defeated, and in the end the Supreme Court would exercise its power under the Practice Statement of 1966 to reverse its position and reinstate the doctrine of parliamentary supremacy. But by then untold damage would have been done to the respect in which the courts are held in government, in Parliament and by the general public and to good relations between those institutions. The rule of law itself (as generally understood in legal circles) would have been weakened. The culture would have changed.

The relationship between the executive and the courts in the UK, lacking as it does a written constitution which defines that relationship, depends upon reciprocity, trust, cooperation – the basic elements of human social interaction.  Any system of government involves such interaction. If those collapse then the very constitutional system itself might collapse into recurring conflicts between the courts and the executive, tit for tat battles, ostracism of the courts by ministers, and mistrust. It is by no means certain that the rule of law would win over politics and parliamentary supremacy in such a situation.

But, you will be thinking, surely this hypothetical is fanciful: normally ministers do obey court orders. Yes – and that is part of the culture of the rule of law. But if the courts were to challenge parliamentary supremacy, ministers would be able to invoke a whole lot of arguments in support of their refusal to obey the court, arguments which do not apply in relation to other cases – democracy, separation of powers, etc. Indeed it is likely that there would be a great hue and cry against the courts not only from the government, but from MPs, the press and the public. In my view therefore it could well be extremely unwise, damaging to the authority of the judiciary and the rule of law itself and to the stability of our constitutional arrangements, and counter- productive for the courts to strike down a provision in an Act, however much it is contrary to some of the elements of the rule of law and other constitutional ‘principles’. Bear in mind that the duties of judges are not limited to upholding individuals’ rights. They include ensuring the practical working of constitutional arrangements, for instance relationships with the EU and between the UK and devolved bodies, which in turn facilitate the rule of law. There are in other words respectable consequentialist reasons for judges in the UK accepting parliamentary sovereignty and holding back from making judgments that might be impossible to enforce against the executive in such a nuclear option situation, especially when we take into account the non-legal environment in which government and Parliament operate in the UK and which uphold constitutional principles.

So in my view a ‘principle’ that the rule of law is the controlling principle and might entitle courts to disapply statutory provisions – as Lord Hope indicated in Jackson – would come up against the typical, pragmatic and wise English response: that is all very well in principle and theory, but what about the practice? The practice of striking down legislation in our unwritten constitution and constitutional culture would not work.

Thus I suggest that an important rationale for the British courts’ recognition of Acts of Parliament as the highest form of law is based in comity between institutions and workability: pragmatic principles established over centuries that the courts will refrain from questioning the legal validity of Acts passed by the UK Parliament, and members of the two Houses of Parliament will respect the courts and their decisions and will not seek to undermine them and the rule of law.

I suspect therefore that the dominant though unarticulated reason why courts in the UK accept parliamentary sovereignty is that it represents a way of avoiding a conflict between the courts and the executive which the courts could not win. It could well be different if the UK had a written Constitution which mandated the courts to refuse to give effect to ‘unconstitutional’ laws. But that is not the current position.

This is not something that the judges, or others as far as I know, have discussed publicly. But Lord Justice Stephen Sedley had the following to say in his LRB review of Vernon Bogdanor’s book The New British Constitution (2009).

‘…what would happen in real life if the higher courts treated … a withdrawal of their jurisdiction [by a provision in an Act which ousted judicial review of a tribunal’s decisions on asylum claims] as unconstitutional, ignored it and allowed an asylum seeker’s appeal? The home secretary, not recognising their jurisdiction, would proceed with deportation, and the court would arraign him for contempt. How would it end? We do not know, and most of us would prefer not to find out’.

Sedley discussed the issue again in Ashes and Sparks (2011). Commenting on what would have happened if the ouster clause in the Immigration and Asylum (Treatment of Claimants) Bill had been passed, if the courts had refused to give effect to it, and if the Home Secretary had been found to be in contempt for disobeying their order, he wrote:

‘And then? There would be no winner, no famous victory even, in such a confrontation. Even so …. it was  not necessarily a bad thing that [the proposed ouster clause] had gone as far as it had: the government had realised that there were limits to what it could properly ask Parliament to do; constitutional lawyers had realised that the limits were less secure than they had thought, and the sky still seemed to be in place’.

Interestingly, in relation to our close constitutional cousin, New Zealand, Matthew Palmer has recently written that:

‘Institutionally, over the long term and particularly in New Zealand, the independence of the judiciary depends on the forbearance of the political branches of government. Cabinet and Parliament have the formal tools available in New Zealand’s constitution to undermine the independence of the judiciary if they wished: through appointments, dismissals, under-resourcing or restructuring various benches.’

Palmer suggests that the approach of parliamentarians is based in part on the high standing of the judiciary in public opinion; that standing could be damaged by a series of negative public reactions to judicial decisions and ‘… whether consciously or unconsciously, the judiciary, especially at the level of Heads of Bench and the Supreme Court, understands and should understand the importance of public opinion, according to a medium and long-term perspective, for the sustenance of its branch of government’.

Griffith was right in ‘The Political Constitution’ that many parts of our constitution (not all) are the outcome of conflicts. The restoration of parliamentary sovereignty would be the outcome of a conflict between the courts and the executive, but the courts would have lost authority and face in the course of that conflict.

Dawn Oliver is Emeritus Professor of Constitutional Law at University College London. 

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Tom Hickman: Freedom of expression and the Olympics

One may question whether “the practice of sport is a human right”, as stated in the Olympic Charter. But it cannot be doubted that it is not as important as the right of freedom of expression, which is regarded as fundamental to democracy.

Yet this right seems often to be trammeled in the name of the Olympics.

At the Beijing Olympics demonstrations were prohibited save with a permit in three “demonstration areas”. In fact, would-be demonstrators were deterred from applying and those that did were not granted permits anyway. The Chinese authorities were scorned and mocked around the world.

But in the run up to the London Games questions must be asked about whether freedom of expression is being respected here.

The London Olympic and Paralympic Games Act 2006 prohibits businesses from any promotion linked to the games. It would catch, for example, a bed and breakfast offering a discount on rooms to anyone attending the games, or a pub that gets in a big screen to show the Games and publicises the fact on a sign outside.

Businesses are on very risky ground if they make any use of a combination of any two of the protected words “Games”, “2012” or “twenty twelve”, or combination including other secondary protected words, including “gold”, “London” or even “summer”.

Furthermore, commercial use of the words “Olympics”, “Olympian”, “Para-Olympics” (etc.) is effectively banned by the Olympic Symbol etc. (protection) Act 1995.

The result was highlighted by the Newham Recorder in an article that received coverage on Have I Got News for You, that a local greasy spoon called Café Olympic had been forced to paint over the “O” on its shop sign.

Such prohibitions appear to go clearly beyond the justification that Locog itself advances for them: protecting the official sponsors—who fund the Games—from unofficial competition.

It is doubtful that a reasonable person would consider Café Olympic to be an official sponsor of the Games, and it is unfortunate that commercial participation in the cultural experience of the Games is being sterilized. It may significantly reduce the cultural footprint left by the Games on the city of London if local shops and enterprises cannot refer to it.

Last week newspapers were reporting that the quango responsible for enforcement of the Act, Locog, would also be cracking down on Facebook and Youtube postings during the games.

The invasion of freedom of expression also ratcheted up last week with the service of the first Olympic ASBO.

It followed the efforts of three protesters to prevent the erection of a temporary basketball court by the Olympic Delivery Authority on Leyton Marsh in Hackney. The protesters claimed that workmen were unlawfully digging through topsoil into the protected marsh. They were convicted in the Magistrates Court for breach of the Public Order Act and upon refusing to pay a  £200 fine were imprisoned for five days. Upon leaving prison, one of the three, Mr Simon Moore, was served with what has been reported as an “Olympic ASBO”.

The ASBO reportedly makes it a criminal offence for Mr Moore to enter within 100 yards of any Olympic competition or practice venue or within 100 yards of any road being used for Olympic activities.

The ASBO also prevents Mr Moore from trespassing on any building or land, taking part in “any activity that disrupts the intended” activities at the Olympics or (for good measure) at any Diamond Jubilee celebrations, or which “obstructs” the passage of any Olympic participant (including officials and spectators) at any time.

The use of ASBOs to prevent individuals engaging in offensive and valueless anti-social conduct is one thing. But their use to impose prior restrains on the genuine exercise of freedom or expression, as well as the exercise of other rights such ordinary use of the highway or attending an event for which one has tickets, is much more questionable and goes beyond the (already questionable) current authority on the use of such powers: Singh [2006] EWCA Civ 1118.

Even accepting that the detailed facts have not been reported, it is difficult to conceive how a protest against the digging up of protected marshland could justify prior-restraints on association and expression in other contexts.

That this has been done in the name of the Olympic games—and indirectly at least the ‘human right’ to engage in sport—is a regrettable further manifestation of the tension between the Olympics and one of the the most venerated democratic rights.

 Tom Hickman is a barrister in Blackstone Chambers.

A shorter version of this blog was published in The Lawyer on 30 April 2012.

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Carol Harlow: Surveillance and the Superstate

For a society as devoted to secrets and privacy as the British are traditionally supposed to be, however, the law possesses surprisingly few protections for the communications of its citizens. True, phone hacking has become a criminal offence under the Regulation of Investigatory Powers Act 2000 and the creation and retention of citizens’ data is now regulated by the Data Protection Act 1998 but there is no right of privacy per se at common law and resort is consequently to a haphazard and fragmentary set of common law rights of action, which protect person, property and dignity in limited situations [See Lord Bingham, ‘Tort and Human Rights’ in P Cane and J Stapleton (eds), The Law of Obligations (Clarendon Press, 1998)].

Government (a.k.a the Crown) has by way of contrast traditionally been highly privileged, benefiting from the existence of a set of wide and loosely defined prerogative powers in the area of security and defence. There has never been a constitutional ‘right to know’ and access to official information was until recently narrowly restricted by draconian Official Secrets Acts, which made it an offence for any Crown servant or agent or anyone in receipt of information from a Crown servant or agent to disclose such information without authority. Although toned down by the Official Secrets Act 1989, which restricts the categories of protected information, the underlying ethos, that information in the possession of government is its private property, has not been dispelled by the first freedom of information legislation, which came into force only in 2005 and is riddled with so many exemptions as to merit the label of ‘sheep in wolf’s clothing’ bestowed on it by Rodney Austin [‘The Freedom of information Act 2000: a sheep in wolf’s clothing?’ in J Jowell and D Oliver (eds), The Changing Constitution (Oxford University Press, 5th edn, 2004)].

In the last two decades, the relationship between state and citizen in the area of information has been complicated by the rapid evolution of information technology, globalization of communications and the multi-level nature of regulation. Many counter-terrorism measures involving surveillance emanate, for example, from the United Nations, while the European Union is starting to play a significant role in access to information and data protection. On the one hand, ICT has facilitated the accumulation and retention in government data banks of vast quantities of information, relevant and irrelevant, about its citizens. Concern over the uses to which such information would be put fuelled opposition to proposals – ultimately defeated – from Tony Blair’s government for citizen identity cards. On the other hand, easy access to the internet and rapid communication via mobile telephones, Skype, social networking sites, twittering and tweeting have worked to the benefit of citizens and rendered government control harder. This point was poignantly illustrated during the ‘Arab Spring’.

Concern, evidenced in the campaign against identity cards, has been growing at national level, over the growing use of modern technology to extend surveillance by public authorities – the proliferation of CCT cameras for crime prevention, centralized and systematic police monitoring of cameras used for traffic control for other purposes, and CCT use by the private sector, where it is barely controlled. The courts have shown themselves relatively unwilling to restrict the use of modern surveillance techniques. In Wood v MPC [2009] EWCA Civ 414, for example, the Court of Appeal rejected a claim that the filming of participants in a trouble-free demonstration and subsequent retention of the photographs was unlawful and amounted to a violation by the police of ECHR Article 8, ruling instead that the practice was a justifiable and proportionate measure for the prevention of crime. After the London riots in 2011, the Metropolitan police pressurized broadcasters to hand over videos and pictures they had taken, threatening a court production order under PACE. The press protested vigorously at the threat to freedom of speech (The Guardian 30 August 2011) but the issue remains unresolved. Similar protests met government proposals – not yet fully particularised – to extend rights of access by public authorities to electronic communications between citizens, stimulating a vigorous political response from the junior partners in the coalition government, (BBC News, 10 April 2012).

Strasbourg, interception and data protection

The interception of communications has brought the United Kingdom up against the Strasbourg Court of Human Rights on several occasions. Indeed, of the long line of cases marks the interest of the Strasbourg Court in interception of communications, data protection and surveillance, several involve the United Kingdom [ECtHR, Factsheet on data protection 2012].  In Malone v United Kingdom (1984) 7 EHRR 14, the issue was telephone tapping by the police, which came to light during Malone’s trial for handling stolen goods. When Malone sought a declaration that the practice was unlawful [Malone v. Commissioner of Police of the Metropolis (No. 2) [1979] 2 All ER 620] Megarry J. ruled (i) that the common law recognised no right of privacy on which to found an action (ii) that no actionable tort had been committed and (iii) that a claim based on Article 8 of the ECHR, which specifically protects the privacy of correspondence, must fail because the ECHR was not (at that time) directly applicable in domestic law. In reaching these conclusions, the judge remarked, however, that he found it ‘impossible to see how English law could be said to satisfy the requirements of the Convention’ and that ‘the subject cried out for legislation’. This did not prevent the British Government from arguing in Strasbourg both that the practice of requiring ministerial authorisation for all telephone tapping was sufficient to satisfy the Convention requirement that interceptions must be ‘in accordance with the law’; and also that the practice of ‘metering’ or recording dialled numbers and the time and duration of calls, fell outside the Convention right. The Government lost on both heads and the Interception of Communications Act 1985 followed.

This legislation is now taken up in the Regulation of Investigatory Powers Act 2000. RIPA’s objectives are wide: it provides for ‘the interception of communications, the acquisition and disclosure of data relating to communications, the carrying out of surveillance, the use of covert human intelligence sources and the acquisition of the means by which electronic data protected by encryption or passwords may be decrypted or accessed’ for purposes of national security or investigation of serious crime by the security services and police. A warrant signed by the Home Secretary is required. RIPA also regulates ‘metering’; it requires records to be kept and made accessible on ministerial request of dialled numbers etc. A monitor in the shape of an Interception of Communications Commissioner is provided. More controversially, RIPA permits a wide range of government agencies, including the Charity Commissioners, Financial Services Authority and local authorities to indulge in similar activities, albeit in limited circumstances. Largely on these grounds, it has been widely criticised as a ‘snoopers’ charter’.

Marginal restrictions on the powers of local authorities are contained in the Protection of Freedoms Bill, currently before Parliament. Unsurprisingly, however, the Home Secretary (Theresa May) did not seize the opportunity afforded by the Bill seriously to curtail the snooping activities of public authorities. Instead, proposals to include in the next Queen’s Speech extensions to RIPA’s ambit have been announced to cover more modern forms of communication, including internet-based email, twittering and tweeting, Blackberries, Skype, mobile phone texting, social networking sites like Facebook and even online games. Proposed new legislation would, it is believed, force internet companies to install hardware enabling GCHQ on behalf of government to examine websites accessed and text messages or email sent. The proposals will in short allow police and intelligence officers to monitor a person’s contacts including websites, although the content of communications will not be accessed. Once again, the records will be available to local councils and other agencies, though in limited circumstances.

In S and Marper v. the United Kingdom [2008] ECHR 1581,  the Court ruled on the taking and retention of DNA samples from persons suspected of criminal offences but subsequently acquitted. There is an implicit reproof to the House of Lords, which had ruled to the contrary in R(LS and Marper) v Chief Constable of Yorkshire [2004] UKHL 39, in the ruling that

the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences… fails to strike a fair balance between the competing public and private interests and that… the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.

Necessary changes to bring the law into line with the Strasbourg judgment are also contained in the Protection of Freedoms Bill.

Enter the European Union

But data processing, retention and protection are no longer a purely domestic matter. They are the subject of a major new initiative under the direction of EU Commissioner, Viviane Reding. This is both a necessary and welcome development in view of the vast data banks that have been built up in the EU from material contributed by member states and often widely accessible to member state authorities and officials. Until the Lisbon Treaty came into force, winding up the ‘Third Pillar’ and bringing justice and home affairs into the ambit of the Community, this was a dark and windowless area of EU law and policy. In the Community pillar, some of the sketchy and piecemeal regulation, such as the Telecommunications Data Protection Directive (Council Directive 97/66 of 15 December 1997) or Data Retention Directive (Directive 2006/24/EC of 15 March 2006), had shown a capacity to bite. In Case C-518/07 Commission v Germany [2010] ECR I-1885, for example, the Commission successfully brought Germany before the Court of Justice because its domestic data supervisory authority was insufficiently independent. But Directive 95/46 on data protection, the generally applicable legislation, contains exceptions in Article 13, which authorises Member States to restrict the scope of the rights and obligations provided in the Directive when ‘such a restriction constitutes a necessary measure to safeguard national security, defence and public security’. Similar exceptions apply to the prevention, investigation, detection and prosecution of criminal offences. The consequence was policy-making marked by a serious democratic deficit and information shortfall, culminating in the highly suspect Prüm Convention, which provided for the establishment of DNA profile databases and allows access to partner countries’ fingerprint databases, which the other contracting parties will be able to check on request not only for the purpose of preventing terrorist attacks and serious criminal activity but also in case of political demonstrations and ‘other mass events’. Similarly controversial was the agreement with the United States on the transfer of passenger name record data (PRN), successfully attacked in the Court of Justice Case C-301/06 Ireland v Council and European Parliament (10 February 2009), but now the subject of a new agreement foisted on a not-entirely willing Parliament (see http://www.statewatch.org/pnrobservatory.htm).

Coupled with the EU Charter of Fundamental Freedoms, the Lisbon Treaty (TFEU Article 16) provides a new basis for, and mandates, EU lawmaking, from which the European Parliament can no longer be excluded. A proposal from the Commission for a legislative text would provide a Europe-wide framework for data protection. This would have a major impact on private generators of electronic data, which would in future have to prove either consent of the data subject to retention or that retention was necessary. A second proposal  for a directive covers processing of personal data by law enforcement authorities for purposes of crime prevention, investigation, etc. and ‘the free movement of such data’.  The Commission is also reviewing the Data Retention Directive, which requires companies to store communication traffic data for a period of between six months and two years. In fact, some member states and notably Sweden have already implemented this measure.

The European Data Supervisor has, however, expressed ‘serious disappointment’ with the provisions in the law enforcement area [Opinion of the European Data Protection Supervisor on the data protection reform package]. While welcoming the fact that the directive would cover domestic processing, he regrets that the level of data protection in this area would not be increased:

The main weakness of the package as a whole is that it does not remedy the lack of comprehensiveness of the EU data protection rules. It leaves many EU data protection instruments unaffected such as the data protection rules for the EU institutions and bodies, but also all specific instruments adopted in the area of police and judicial cooperation in criminal matters. [para. 443, emphasis mine]

The UK Information Commissioner has expressed similar views. He sees the Commission proposals as less ambitious than the current UK Data Protection Act and hopes that ‘the provisions will be strengthened as negotiations progress’. Clearly, we cannot rely on the European Union to halt the march towards a surveillance state.

Carol Harlow is Emeritus Professor of Law at the London School of Economics

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Roger Masterman: ‘I like Parliament, and I like courts. Which is best? There is only one way to find out … FIGHT!’

The debate over which institution of government possesses ultimate constitutional authority for determining questions of human rights is – of course – a hugely important question to be confronted by any constitutional system seeking to devise mechanisms promoting the protection of individual freedoms.  For some, the issue of ultimate authority is the fundamental constitutional question.  As experience in the UK has vividly illustrated however, the courts v. Parliament debate is also something of an albatross around the neck of Human Rights Act.  One need only think of the popular media’s portrayal of the prisoner voting saga, the widely-reported responses of politicians to the UK Supreme Court decision on the Sex Offenders Register or the demonisation of the European Court of Human Rights to see the judges v. legislature (occasionally legislature v. judges) narrative portrayed in clear relief.

The debate is continued in the pages of the legal periodicals, where the opposing factions of political and legal constitutionalists repeatedly trade blows.  The former accuse the latter of endorsing radical, counter-majoritarian, judicial interpretative powers – ‘interpretation on steroids’, ‘Alice in Wonderland interpretations’ or ‘Spike Lee-like licences to “do the right thing”’ as James Allan has memorably/disparagingly termed them – while the latter accuse the former of being blind to the anti-democratic tendencies of party-politics, uncritical of executive dominance of the legislature and of conveniently ignoring the fact that the impugned interpretative powers were deemed to be acceptable to a majority of legislators and duly enacted as primary legislation.  Meanwhile, many (most?!) readers sit back considering how their own particular constitutional worldview is able to neatly accommodate the better parts of both extremes …

The recently-published report by Murray Hunt, Hayley Hooper and Paul Yowell – Parliaments and Human Rights: Redressing the Democratic Deficit (AHRC Public Policy Series No.5) – strongly argues that a continued focus on the question of ‘ultimate authority’ holds the potential to detract attention from other, equally important, questions (most notably the effectiveness of rights protecting mechanisms in practice).  The authors argue that:

‘The choice between the Courts and Parliament as the guardians of human rights is increasingly rejected.  In place of that old dichotomy there is now widespread agreement that all branches of the State – Parliament, the Executive and the Judiciary – have a shared responsibility for the protection and realisation of human rights (p.6).’

Hunt, Hooper and Yowell instead seek to focus attention on the changes needed within our institutions of government in order to help realise, and to give better effect to, human rights (p.12).  At the same time however, their report recognises that consensus over the shared constitutional responsibility for protection of human rights ‘is accompanied by new levels of dissensus over who has the final say (p.11).’  This particular paradox was borne out in discussions at the recent conference to which this report formed the backdrop (Addressing the Democratic Deficit in Human Rights (17-18 April 2012); the question of ‘ultimate constitutional authority’ was the looming spectre at the feast.

The justification offered for our inability to move beyond the question of ‘who decides?’ relates to the apparatus of government.  Hunt, Hooper and Yowell suggest that the ‘institutional machinery for the protection and realisation of human rights has not caught up with the new consensus’ and, as a result, remains primarily reliant on ‘unelected judges providing legal remedies for individuals whose rights have been violated (p.11).’  On this analysis, the suggestion is that amendments to institutional processes – especially those within Parliament – hold the promise to deliver ‘more effective implementation of human rights (p.11)’ and in so doing to focus debate on the substance of rights protections, rather than discerning their ultimate guarantor.  But surely there is more to it than this?

The fact that the debate over ultimate authority retains currency is indicative of a significant limitation – perhaps a failing – of the HRA.  The HRA model was, after all, designed to reconcile judicially-protected rights with parliamentary democracy by offsetting judicial interpretative powers against political rights review and the ability of the legislature to avoid taking remedial action in response to a declaration of incompatibility.  The HRA was adopted in order to give effect to the very notion that the three branches of government shared constitutional responsibility for rights protection.  The failing of the model – evident here in the continued perception that the HRA excessively empowers the judiciary at the expense of executive and Parliament – illustrates that the transformative potential of the HRA has not been fully carried into effect.

But was the HRA ever likely to precipitate a constitutional revolution?  Was it ever likely to irrevocably transform the constitutional landscape?  Probably not.  In giving legal effect to the Convention rights, and in attempting to focus legislative design processes around respect for those rights it certainly attempted to integrate rights concerns into constitutional processes – a significant change of course – but its effects at a deeper level have been far less profound.  While the HRA has subtly influenced our perspectives on parliamentary sovereignty, for instance, it has not – either alone or in conjunction with the various challenges posed by extra-jurisdictional legal influences or by intra-jurisdictional dispersals of authority – marked the death knell of this core constitutional doctrine.  As Lord Hope, citing Lord Bingham, stated in the recent Supreme Court decision in AXA General Insurance Ltd v. Lord Advocate, ‘the sovereignty of the Crown in Parliament … is the bedrock of the British constitution (at [45]).’  The constitution which King, Bogdanor and others have argued to have been jettisoned as a result of the various reforms of the last 15 years has perhaps, in its fundamentals, shown remarkable resilience.

Suggested amendments to institutional processes (and maybe to those institutions themselves) are, therefore, cosmetic; the constitutional culture within which those institutions operate is based on much deeper foundations.  The integral place of the sovereignty doctrine demonstrates how the constitution is intimately wedded to the notion of an ultimate authority, and ensures that debates over perceived challenges posed to that authority by other constitutional actors will, for better or for worse, continue to underpin and drive much constitutional discourse.

The idea of conflict within and between the institutions of government is then, as Griffith argued, at the heart of the constitution; legal process feeds on conflict, adversarial politics – as Robin Cook has written – is the ‘animating principle’ of the House of Commons, and ‘the will of Parliament’ is a construct which, more often than not, masks significant internal and ideological disagreement.  Little has apparently changed as a result of the early experiences of coalition government, which have been characterised as much by an increased focus on intra-governmental tensions as by any spirit of co-operation between the Conservatives and Liberal-Democrats.  The judges v. Parliament/Parliament v. judges debate is simply the macro-level evidence of this constitutional culture.  Notions of a dialogue amongst governmental institutions, of a co-operative constitution, and perhaps even of acknowledgement of a shared responsibility to protect rights, therefore have an air of unreality in any but the most abstract sense.  In practice, such ideas are seemingly embraced by neither courts nor politicians (and, even if they were, would only thinly disguise further disagreements over the content of the protected freedoms, the balance to be struck between individual and societal needs, the ways in which clashing rights be reconciled and so on).

Parliaments and Human Rights: Redressing the Democratic Deficit therefore lays down a challenge; any attempt to generate a sense that constitutional actors are engaged in a joint enterprise in the promotion or realisation of as controversial a topic as human rights therefore must confront more deep-seated issues in constitutional theory and constitutional culture.  For the time being, debates over ultimate authority (and the conflicts that those debates spawn) will continue to obscure (and enlighten) discussion concerning constitutional efficacy in equal measure.

Roger Masterman is Reader in Law at Durham University.

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