Monthly Archives: November 2012

Colin Harvey: Who ‘Deserves’ to be a Refugee?

harveylargecroppedDoes ‘status’ really matter? In the global age of human rights it seems that being a ‘person’ is all that should count.  Human rights apply to everyone. As we know, from recent political debates in the UK (noted here by Gavin Phillipson), this includes terrorist suspects. Successive UK governments, and Prime Ministers, have expressed frustration about the implications of human rights law for deportation. Often portrayed as the example of the excesses of rights-talk, it is in fact frequently little more than the result of fairly conservative institutions (national and European courts) consistently applying mundane and accepted legal principles. You would not think it.

Has the cosmopolitan, post-national human rights era thus arrived? A glance reveals that categories still determine our lives. Who you are, where you live, and where you are from matters; labels will dictate your treatment by states and by others. Even on the move, we remain situated selves. In a world where human displacement is the norm, the reality of need is often presented through refugee movements. Here, the ‘humanity’ in human rights arises in several senses. The obvious one is the plight of those effectively stripped of the notional embrace of the citizen-state bond – human persons seeking asylum. Recognising ‘humanity’ also carries something more: the complexities and agency of real people. Those in flight may be doing so precisely because of their active political involvement and deliberate actions elsewhere – another dimension of ‘being fully human’. The tricky part for some is holding to the position that the behaviour, conduct or actions of the person are irrelevant to the assessment of the application of a particular right – no one (jurisdictionally included) is, for example, ‘undeserving’ of the rights contained in Article 3 of the European Convention. Governmental disbelief that the behaviour of the person cannot be ‘factored in’ is not disguised; on this thinking perhaps some are less deserving that others of the guarantee of non-refoulement?

International refugee law is a bit different. An international regime of protection emerged based around the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (with international institutional support from the UN High Commissioner for Refugees). It is a system that balances the instrumental needs of states (how could it not?), with the humanitarian imperatives of international refugee protection. It does so by defining refugee status (well-founded fear of being persecuted for a Convention reason), and including a range of protections for refugees. The ‘inclusion clause’ of refugee law also comes with provisions for ‘exclusion’; practically incorporating the notion of ‘deserving’ and ‘undeserving’. Now, compare this with the much discussed implications of Article 3 of the European Convention, noted above.  From Chahal v UK to Saadi v Italy to Ramzy v the Netherlands and beyond, the European Court of Human Rights (much to the irritation of several governments, including the UK) consistently holds to the ‘absolute’ nature of the Convention’s non-refoulement guarantee, even in national security cases. The sole issue – for Article 3 purposes only – is whether there are substantial grounds to believe there is a real risk of ill-treatment, irrespective of the individual’s conduct, actions or behaviour. No one is thus excluded for those reasons. Plus, there is no need to demonstrate that the ill-treatment must be feared for any specific reason, as in refugee law. So, is refugee law redundant? Not quite. Although other forms of humanitarian protection have arisen, in recognition of these developments in human rights law, it still tends to matter substantively whether a person is a refugee or not. Being granted refugee status brings more robust guarantees with it – thus exclusion remains meaningful.

The Supreme Court recently addressed this in Al-Sirri v Secretary of State for the Home Department; DD (Afghanistan) v Secretary of State for the Home Department. The exclusion clauses of refugee law are found in Article 1F of the 1951 Convention:

 ‘The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

 (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.’

Article 1F(c) was at issue in both these cases (it was already accepted that return was not an option for human rights reasons), and they must be viewed in the context of the provisions of the EU Qualification Directive, and the linkage to ‘terrorism’ made in s.54 of the Immigration, Asylum and Nationality Act 2006.

In Al-Sirri the essential questions related to this connection to ‘terrorism’, and the standard of proof to be applied in Article 1F cases (his asylum claim in the UK was refused for Article 1F(c) reasons due to alleged involvement in terrorism). Are all actions defined as ‘terrorism’ in domestic law automatically contrary to the purposes and principles of the UN?  Does the international condemnation of terrorism (but absence of an agreed international definition) mean that states have discretion – for refugee law purposes – to interpret these provisions as they wish, or do the terms  have a ‘true’ and autonomous meaning tied to international peace and security?  If the exclusion clauses are simply equated with expansive notions of ‘terrorism’ will they be co-opted into a worrying global counter-terrorism framework to the detriment of international refugee protection?

Following closely the approach outlined by UNHCR, the Supreme Court here attempted to ensure that the imperatives of international refugee protection are respected in these assessments by requiring a narrow interpretation and applying it restrictively. It did so by insisting that although not ‘war crimes’ or ‘crimes against humanity’ (as in Article1F(a)) the acts must be similarly serious, states are not free to adopt their own definitions, and while there is no international adjudicative body for refugee law, UNHCR views should be given ‘considerable weight’. UNHCR’s Guidance was expressly endorsed, the link to international peace, security and peaceful relations between states underlined, and the Supreme Court noted (following Sedley LJ in the Court of Appeal) that the adoption of the ‘terrorism’ definition in s. 54(2) of the 2006 Act should be read down to ensure it remains within the confines of Article 12 of the Qualification Directive (reflecting and elaborating on Article 1F). However, although referencing the lack of an agreed international definition, the Court stated:

 ‘[39]. The essence of terrorism is the commission, organisation, incitement or threat of serious acts of violence against persons or property for the purpose of intimidating a population or compelling a government or international organisation to act or not to act in a particular way…it is, it seems to us, very likely that inducing terror in the civilian population or putting such extreme pressures upon a government will also have the international repercussions referred to by the UNHCR’.

The Supreme Court stressed that not all acts which sought to destabilise another country would fall within this clause. Again, this should be context dependent and should ‘have the requisite serious effect upon international peace, security and peaceful relations between states [40].’

The term ‘serious reasons for considering’ governs the standard to be applied in Article 1F cases. What does it mean? Should we think about this in domestic criminal or civil terms?  Again following Sedley LJ in the Court of Appeal, the Supreme Court rejected the domestic analogies, expressly noting that the criminal standard does not apply. The favoured approach is to use the words of the Convention, with the guidance that ‘serious reasons’ are stronger than ‘reasonable grounds’, the evidence must be ‘clear and credible’ or ‘strong’ and that ‘considering’ is stronger than ‘suspecting’ or ‘believing’. This was of especial concern in Al-Sirri because criminal charges of conspiracy to murder had been dismissed against him, yet the Asylum and Immigration Tribunal had concluded there were serious reasons for considering he had been engaged in activity which fell within Article 1F(c).

In DD the issue was an armed insurrection in Afghanistan against the International  Security Assistance Force (ISAF), and whether such action would be ‘contrary to the purposes and principles of the UN’. Holding again to the independent interpretation of the refugee law provisions, and rejecting the argument that this would only apply to attacks on the UN Assistance Mission in Afghanistan and not ISAF, the Court held that the exclusion clause would apply to such acts.  Even the narrow and restrictive reading endorsed by the Supreme Court thus had its evident limits.

For refugee law purposes, status continues to matter. Who is a ‘refugee’ is contested in case law around the world, and the law insists that – however narrowly or restrictively interpreted – there will be some who will not merit ‘refugee status’, even if a well-founded fear of persecution exists. This does not mean return is permissible – human rights law may well rule it out – but it will impact on the standard of treatment the person can expect.

In cases such as Al-Sirri and DD we see a judicial attempt to ensure a careful, contextual, case-by-case assessment; one that resists excessive and blanket approaches that would enlist the exclusion clauses within an ill-defined global counter-terrorism policy. As is apparent from both cases, it still leaves room for their considered application. As states urge more and more interpretative flexibility in national security contexts, there is always a real risk that the ambitions and ‘logic’ of counter-terrorism policy will colonise other fields of humanitarian protection. International refugee law accommodates the national security concerns of states amply; too much in fact for many. Further erosion of refugee rights through an overly inclusive reading of the exclusion clauses – pressed hard by government here – would be unwelcome, and the Supreme Court has evidently rejected this route.

Perhaps these cases should draw our attention once again not simply to the ongoing and at times obsessive focus on return, but exactly what guarantees we should expect for all those who ‘enjoy’ various forms of international protection or who join the ranks of ‘non-returnable persons’?

Colin Harvey is Professor of Human Rights Law, Queen’s University Belfast

Suggested citation: C. Harvey, ‘Who ‘Deserves’ to be a Refugee?’ UK Const. L. Blog (30th November 2012) (available at

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Filed under Human rights, International law

Paul Kildea: Reforming Australia’s federation: The People Lead the Way

As another fractious year in politics comes to an end, Griffith University has released the results of its third biennial survey on how Australians view their federal system. It reveals a public that is losing faith in both the current structure of the federation and the ability of different tiers of government to work together to solve national problems. But the poll also reveals a public appetite for reform to which political leaders should pay close attention.

The survey finds that 38 per cent of Australians believe that the current three-tiered federal system – made up of federal (national), state and local government – does not work well. This is up from 30 per cent of respondents when the poll was first taken in 2008.

State governments are seen to be the worst performers. While their rating has improved slightly since 2010, it is apparent that the recent move to conservative rule in Victoria, New South Wales and Queensland has not altered many people’s dim view of state government. Indeed, a mere 14 per cent of Queensland residents view state government as the most effective level – just months after the Liberal National Party’s landslide victory in the March election.

Local government is now rated as the most effective level. This is in large part due to a massive collapse of faith in the national level of government, which until this year had been rated as the most effective level by a handsome margin. Four years ago it was viewed as the best performer by half of Australians, but fewer than a third of people (29 per cent) now hold this view. The deep unpopularity of both federal leaders – Prime Minister Julia Gillard and Opposition Leader Tony Abbott – and the fierce partisanship of the hung parliament (elected in August 2010) have no doubt played a part here.

But if many Australians are unhappy with individual levels of government, they also feel that the federal system is suffering due to a lack of cooperation between the federal, state and local tiers. Australians overwhelmingly see intergovernmental collaboration as a desirable feature of a federal system – more than 90 per cent have said as much in successive surveys. But fewer and fewer people think that the system actually delivers on this – only a third feel that it does collaboration well, down eight points since 2008. Perhaps more worryingly, two-thirds of Australians feel that the federal and state governments are not working well together. On this measure, Australians are less satisfied with their federal system than their counterparts in the United States, Canada and Germany.

This last finding is concerning because intergovernmental cooperation is arguably more important in the Australian federal system than in these other federations. This is because the division of legislative and financial powers, while favouring the central government, gives rise to a high degree of overlap between the federal and state governments. As a result, some of Australia’s most pressing problems – whether in health, education, water management, disability or Indigenous wellbeing – cannot be addressed in the absence of effective collaboration across different tiers of government.

The last year has seen a number of public spats between Canberra and the states that have no doubt shaped people’s views about the amount of cooperation taking place in the federation. Disagreements about the collection of state mining royalties, the distribution of consumption tax (GST) revenue and the funding of major disability and education initiatives have all escalated over the last several months. These conflicts have been sharpened by partisan divisions – while government at the national level is held by Labor, Australia’s four largest states are now governed by conservative Coalition parties.

But it would be a mistake to dismiss the public’s dissatisfaction with federal-state collaboration as a superficial response to passing quarrels. The better view is that public opinion is responding to very real problems in Australia’s federal system that prevent effective cooperation occurring – and that the time has come to address them.

For some years now there has been a steady stream of reports and commentary pointing to the need to strengthen intergovernmental institutions so that they better foster federal-state collaboration. In particular, there is an emerging consensus on the need to reform the Council of Australian Governments (COAG). Despite being the hub of intergovernmental relations in Australia for over 20 years, COAG still has no formal legal status and remains in the grip of the Prime Minister – meaning that is vulnerable to being ignored when it does not suit the federal government.

Building institutional structures through which different levels of government can cooperate is not only an Australian problem. Similar challenges arise in Canada where its First Ministers’ Conference also lacks a permanent institutional base. Reform ideas floated in both Canada and Australia range from forging political agreements on improved processes, through to constitutional recognition of key intergovernmental bodies. The South African constitution goes some way towards the latter by recognising several principles of ‘cooperative government and intergovernmental relations’. The need for constitutional change along similar lines has been discussed in Australia, particularly in light of a view expressed in the High Court that ‘cooperative federalism’ is no more than a ‘political slogan’ with no part to play in constitutional interpretation.

Giving COAG formal legal status, with improved processes, would go a long way to improving federal-state cooperation. But for many members of the public, the Australian federation needs to undergo more fundamental reform. Indeed, a full two-thirds of Australians would like to see the federal system being structurally different in 20 years’ time, with the strongest preference being for a stronger system of regional government.

With their stomach for major federal reform, Australians are way out of ahead of their political representatives. In recent years governments have shown themselves reluctant to consider minor changes to cooperative arrangements, let alone the much larger task of structural reform.

It is time for the political elites to start taking seriously the views of Australians on the shape of their federation. As the lead researcher on the federalism survey, AJ Brown, wrote last week, national and state leaders need ‘to show more tangible commitment to charting the future of the federal system’. And with a federal election looming next year, there is no better time for them to start.

Dr Paul Kildea is a Lecturer in the Faculty of Law at the University of New South Wales, and Referendums Project Director at the Gilbert + Tobin Centre of Public Law

Suggested citation: P. Kildea, ‘Reforming Australia’s federation: The People Lead the Way’ UK Const. L. Blog (29th November 2012) (available at


Filed under Australia, Comparative law

Nick Barber: Does China Enjoy Greater Legitimacy Than Any Western State?

Nick1I was listening to the radio a little while ago, and heard Martin Jacques talking about China.  I listened with renewed concentration.  Jacques was formerly editor of Marxism Today, so he is a man who knows a thing or two about oppressive pseudo-socialist regimes.  Much of what Jacques had to say was insightful, but one of his claims seemed surprising.  Warning his audience he was about to shock them, Jacques asserted that ‘the Chinese state enjoys greater legitimacy than any Western state’.  This is, by any standards, a courageous claim to make.  Jacques advanced three, connected, arguments to support it.  First, he drew our attention to the support expressed by China’s people for their government. In recent surveys it seems that between 80 and 95% of Chinese citizens were either relatively or extremely satisfied with central government.  Secondly, he pointed to the stunning economic success that China has enjoyed over the last thirty years, enjoying a growth rate of about 10% per year.  And this success has not just caused the rich to get richer: Jacques could also have pointed to China’s remarkable success in lifting its people out of poverty.  Allied to these claims, Jacques argued that the Chinese have a different conception of the state to that found in the West: for the Chinese, the state is viewed in terms of the family.  Under this conception of the state, the leadership stands as the head of the family, intimately connected to, and entitled to exercise authority over, the people.

Each of these three claims deserves further reflection.

Jacques’ first point, resting on statistics that quantified the satisfaction of the Chinese people with their state, may demonstrate rather less than he hopes.  In Thinking, Fast and Slow,  the psychologist Daniel Kahneman warns of a trick that our minds tend to play on us.  When faced with a difficult question we are tempted to unknowingly substitute an easier question, and answer that instead.  So, a question about the importance of preserving an animal species or, perhaps, the effectiveness of the market in the NHS, is transmuted into a question about the cuteness of the animal or our how we feel about people making money from healthcare.  Similarly, in presenting this poll as a test of legitimacy, Jacques has shifted from examining the legitimacy of the government to assessing the perception of the legitimacy of the state.  Just because people believe that a government is entitled to rule, this thought alone does not make it so.   Given the control China exercises over its media, and the absence of any real opposition to the government, a general belief in the legitimacy of the government might not be all that surprising.

Indeed, it is even possible that the questions asked by Jacques’ surveys were directed towards something other than the legitimacy of the government.  The surveys appear to have asked after people’s satisfaction with the state, or their assessment of the government’s handling of the economy.  This is a very different thing to the entitlement of the government to rule.  It is easy to imagine a person – perhaps a subject in an imperial territory – admitting that the dominating power was competent, but still challenging its right to rule.  The Romans are still Romans, no matter how well they govern.  On the other hand, a citizen might regard her government as poor, on the verge of incompetence, but still endorse its legitimacy.  Many Labour Party supporters would bitterly criticise the Coalition’s policies, but still recognise that the United Kingdom possesses a legitimate government.

This is not just a semantic quibble.  Political scientists distinguish between two forms of legitimacy: input legitimacy and output legitimacy.  Jacques has focused almost exclusively on output legitimacy in his talk.  Output legitimacy is a function of the competency of the state.  People do, or should, support the state and comply with its commands because doing so will make their community a better place to live.  Input legitimacy, in contrast, is a function of the way decisions are made.  People do, or should, support the state and comply with its commands because of the way the government has been formed and the way the commands have been produced.  Ordinarily, some form of democracy is at the heart of input legitimacy. These two forms of legitimacy are complementary and interconnected.  Perhaps one form of legitimacy is valueless without at least an element of the other.  That the people of China are satisfied with their government, coupled with the strong economic success of that country, shows that China has a plausible case to make in terms of output legitimacy.  The lack of input legitimacy may, though, still throw into question the broader entitlement of the Chinese government to rule.

Jacques’ third point – about the Chinese conception of the state as a family – might be an indirect response to this point.  In the family, the authority parents enjoy over their children, especially young children, rests on their ability to make decisions in the best interests of their child.  Parents’ right to tell their children what to do does not rest on a vote or even on consent.  Perhaps Western preconceptions of legitimacy cannot be applied in the context of China?

The difficulty with this reply is that China does have democratic structures in its Constitution.  These are just not very effective.

In a valuable recent book, Professor Qianfan Zhang explains the structures and operation of the Chinese Constitution.  The Constitution asserts that China should be governed democratically.  It sets out a bottom-up structure of democratic control.  The people elect representatives to the lowest levels of assembly at town and county levels.  These assemblies then elect deputies to sit in Local People’s Congress that, in their turn, elect deputies to sit in the Congress at the next level up.  The process continues all the way to the National People’s Congress, which is the highest representative body.  In reality, though, the Communist Party exercises control over every stage of the process: the bottom-up approach of the Constitution is, as Zhang explains, countered by a top-down system of Party control.  Party committees, controlled from the centre, are able to vet candidates standing for election.  In effect, the appointment of representatives at each level of legislature is subject to the review, or even control, of the Party committee that sits at a governmental level one stage higher than that body.  The 1982 Constitution calls for a system that starts with the citizen and works up to the NPC, with each deputy accountable to the lower body that elected her.  The constitution with a small ‘c’, in contrast, starts with power vested at the top of the Party and then devolves power down to the regions, with each deputy accountable to the higher body that selected her.

Jeff King  has written of constitutions as mission statements, as declarations of the type of polity the state wishes to be.  In China’s case there is a sharp contrast between this declaration and the realities of state power.  China’s government fails to achieve legitimacy even in the terms set by its own Constitution.  This creates a sort of constitutional cognitive dissonance: a discomfort caused by the gap between peoples’ actions and the way they think they ought to behave.  It is a discomfiture that is very evident amongst Chinese public law scholars who struggle to connect the Constitution with the actual rules that structure the state.  It is also evident in the speeches of China’s leaders, whose rhetorical exhortations sometimes seem remote from the state they have fashioned.

Trying to ground a polity largely or entirely in terms of its competency is a dangerous business.  It may prove successful whilst the economy is booming, but economic success never lasts forever.  And the stability it brings can be quite shallow.  After the defenestration of Bo Xilai  tanks were seen on the streets.  If this had occurred in London, people would have thought it was the start of a parade.  In Beijing, people thought it was the beginnings of a coup.  Chinese people’s satisfaction in the conduct of their state may be high, but their faith in their leaders, and their confidence in the stability of their country, may be less buoyant.

Nick Barber is a Fellow of Trinity College, Oxford, and, in 2012, Visiting Professor at Renmin University, Beijing. 

Suggested citation: N. W. Barber, ‘Does China Enjoy Greater Legitimacy Than Any Western State?’ UK Const. L. Blog (28th November 2012) (available at


Filed under China, Comparative law, Human rights

Tom Hickman: Justice & Security Bill: Defeat, or Not a Defeat: That is the Question.

Last week the House of Lords approved a number of amendments to the Justice and Security Bill in three divisions called by Lord Pannick (the amendments were also in names also of Lord Lester, Lord Beecham and Baroness Berridge). The amendments were intended to implement the recommendations of the Joint Committee of Human Rights (“JCHR”), which the Government had refused to accept. The amendments have been widely reported as a major defeat for the Government on its highly controversial plans for use of Closed Material Procedure (“CMP”) in civil proceedings. However although the amendments are greatly to be welcomed, in key respects they did not go far enough, and indeed the Government might well be quietly pleased with the result.

The Lords’ amendments would, in summary, make the following changes to the use of CMP as presently set out in the Bill:

      • They would ensure that a Judge decides whether CMP should be used in any given case, and that it would not be a decision taken (in form or substance) by the Secretary of State.
      • CMP would only be available as a last resort and if fairness cannot be achieved by any other means.
      • The court would be required to balance the interests of national security against the interests of fairness and open justice in deciding whether to agree to the use of CMP.
      • Either party could apply for a CMP and not just the Government.

As Lord Pannick put it in debate on 21st November, the amendments would, “help to ensure that, if we are to have CMPs, there are proper limits, proper controls, a proper balance and judicial discretion, and that CMPs are a last resort”.

These amendments would redress some of the more glaring, not to say outrageous, defects in the Bill. As introduced the Bill not only provided a jurisdiction for inherently unfair proceedings in which one party to the case is denied access to key evidence—that is, CMP—but it would have entitled one of the parties to the litigation—that is, the Government—to decide whether or not to use such a procedure. I criticised this at some length in a previous post on this site after the Bill was unveiled (a post which also provides background to the present discussion). It is critical that, if CMP is to be introduced, it is for the courts and not the Government to determine whether it should be used in any given case. The Government’s justification for the introduction of CMP was to increase fairness and accountability by enabling the courts to consider all relevant evidence. Questions of fairness and relevancy of evidence are matters for the courts to determine and not one of the parties to the case.

The safeguards that the House of Lords have now voted for reflect a number of the “constraining principles” that the Bingham Centre for the Rule of Law called for if CMP was to be introduced, in its response to the Government’s Green Paper (a response co-written by Adam Tomkins and myself (see also: “Minimum Safeguards – Bingham Centre briefing paper on the Justice and Security Bill”, 5 July 2012). The amendments also reflect the views of the House of Lords Constitution Committee and of the Independent Reviewer of Terrorism Legislation, David Anderson QC.

However, it is difficult to imagine that the Government thought it could push through Parliament not only CMP but a system that ties the hands the courts as to whether CMP should be used in any given case. It is very difficult to imagine that the system set out in the Government’s Bill would be upheld in the courts given the serious and unnecessary exacerbation of the impairment of equality of arms that would be entailed in such an approach. Therefore, whilst it is gratifying that the House of Lords stood up to the Government on this issue and inserted some vital safeguards, it would have been a very sad day indeed for our Parliamentary democracy if even this aspect of the Bill had passed through Parliament unscathed.

From a less sanguine perspective there are three important things the House of Lords did not do.

First, the Lords did not vote down Part 2 of the Bill, which contains the provisions relating to CMP, altogether. On the contrary, an amendment proposed by Lord Dubs that would have had this effect was comprehensively rejected. This was despite powerful views being expressed, such as by the former DPP, Lord Macdonald, who stated, “I would not introduce these processes into our system without the most compelling evidence to justify this extraordinary change, and I do not see it.”

A number of Peers, well qualified to opine on this issue, accepted that CMP could be justified in exceptional cases. Lord Woolf, for instance, declared himself “a hedger not a ditcher” on the basis of his experience as Treasury Devil in which he had known cases where important evidence had been excluded from judicial consideration. Unsurprisingly, Baroness Manningham-Buller, former Director General of MI5, argued that CMP is the only way that Judges can make a judgment on the accusations of “wicked iniquities” levelled against the service which she said they could not defend themselves against under the current law.

Lord Phillips of Worth Matravers, who whilst President of the Supreme Court in Al Rawi & Ors v Security Service & Ors  avoided expressing a view on CMPs, also stated that he was “reluctantly persuaded of the need, in the interests of justice, for a closed material procedure in exceptional cases”. But he pointed out that it is inevitable that if CMP is brought in to law it will “undoubtedly be challenged” in the Supreme Court and in Strasbourg and that it will be necessary for the Government to demonstrate that the inroads into fair trial rights are the minimum necessary and are subject to available safeguards. With this I would respectfully agree, and this brings me on to the second thing that the House of Lords has not done.

One of the features of the CMP contained in the Bill is that once a case has been deemed suitable for CMP there is no balancing of interests in determining whether evidence should be disclosed or whether it should be considered behind the impenetrable veil of the CMP. The need for such a balancing exercise was another of the “constraining principles” set out in the Bingham Centre’s Green Paper response. Its importance has also been recognised by the JCHR and the Constitution Committee. Such a balance has been part of the law of disclosure in England since Conway v Rimmer in 1968 (and since 1956 in Scots law). Absence any such balance CMP operates like a black box from which no information of any use or interest emerges. All information of even marginal sensitivity is immune from disclosure even if this is overwhelmingly in the interests of justice for it to be disclosed. Entire “classes” of information regarded as of some sensitivity, such as any information relating to activities of the Intelligence Services, for example, are considered to be non-disclosable.

The recent case of SSHD v CC & CF [2012] EWHC 2837 (Admin) demonstrates this clearly. This is a control order/TPIM case and therefore one of the limited types of case where CMP is currently applied under statutory authority. The Government has mirrored this form of CMP in the Bill. No balancing exercise is applied when considering what evidence should be disclosed.

CC & CF is important in this context because, exceptionally, the case was not solely about whether the two defendants had been involved in terrorism-related activity. The defendants argued that the imposition of control orders on them had been an abuse of process because of the involvement of British officials in what they claim to have been unlawful detention and mistreatment in Somaliland and in their unlawful return to the UK (where control orders were imposed). These are precisely the sort of allegations that the Government wants to be subject to CMP if raised in a private law claim. The fact that, unusually, such allegations were raised in control order/TPIM proceedings means that we can see precisely what would be the result if the Justice and Security Bill were to be passed in its present form.

In his judgment in CC & CF Lloyd Jones J decided the issue in the following, very short, terms:

 “132. …The position of the Secretary of State in these proceedings is that she neither confirms nor denies that the UK authorities were involved in the arrest, detention and deportation of the Respondents [from Somaliland]. I have addressed these issues with that position in mind.

 133. With considerable reluctance I have come to the conclusion that these matters cannot be addressed in my open judgment. However, I have addressed these matters in detail in my closed judgment.”

There is no more than that. The defendants lost but they do not know why. The “closed judgment” is, of course, part of the CMP from which the individuals concerned are excluded. They do not know to what extent, if at all, the British authorities were involved in their arrest, detention and deportation. They do not even know what the Government’s case is. The Judge considered his hands were tied, presumably because the British Government has a policy of not acknowledging the presence of British operatives in Somaliland – a form of blanket secrecy (although even this is a guess).

Whether or not such blanket secrecy is justified in the control order context, where the evidence generally relates to activities of suspected terrorists and not the activities of the Government, it is clearly unjustified in other civil proceedings. Indeed, on this point I can claim the support of the Intelligence and Security Committee itself, which in its  Annual Report for 2011-2012, in which the Government’s CMP proposals were considered, stated that CMP could be justified only in respect what the Committee referred to as two “narrow categories” of information:

 “• The first is UK intelligence material which would, if disclosed publicly, reveal the identity of UK intelligence officers or their sources, and their capability (including the techniques and methodology that they use);

• The second is foreign intelligence material, provided by another country on a strict promise of confidentiality.”

CC & CF shows that the form of CMP currently embodied in the Bill would throw the blanket of secrecy far, far wider than the Intelligence and Security Committee contemplates. The impression is often given by the Government that CMP does not operate in this ‘black box’ fashion. On the Today programme on 19 November 2012, for example, Ken Clarke said that judges would “only allow secret hearings where lives are at risk”. However this is simply not the case.

Lord Pannick proposed an amendment based on the JCHR recommendations that would have introduced a balancing of interests approach once a court had approved a CMP in a given case. This was the fifth division of the House and on this occasion the amendment was defeated. Why was this so given that there had been a head of steam behind the JCHR recommendations? We can only speculate. The significance of the issue raised by this division appears not to have been fully appreciated by the House and neither the issue nor the amendment was the subject of any significant debate. It may have been thought by many Peers that the principle of balancing had been established by the third division, and indeed Lord Pannick suggested that the proposed amendment to clause 7 was the equivalent of that already voted upon in the third division in respect of clause 6. In fact the third division only related to the CMP “gateway” or “trigger” (as it has been called).

A more depressing reason for the rejection of the proposed amendment, which surely played a part, was the lateness of the hour. The division occurred at 10.15pm. Only 210 Peers voted. By comparison over 400 Peers had voted in each of the first three divisions in which the Government was defeated. There was an unfortunate prescience to Lord Lester’s comments earlier in the evening that no “serious point” should be made in the House “after the dinner hour”.

The implications of this are troubling. In general, issues that have been voted on by the House of Lords cannot be reopened by an amendment in the House at a later stage. Given the importance of this issue, as I have sought to explain, it would be a calamity if it fell in such a way (or indeed, if it fell at all). It is possible that the House of Commons might recognise its significance, not least given the disconnect between the views expressed by the Intelligence and Security Committee and the reality of the form of CMP proposed by the Government. It is also at least possible that the House of Lords might yet be able to give proper consideration to this issue on the basis that although it has been the subject of a vote, it has not been the subject of full debate (see Erskine May, 24th ed. 2011, p.619). As CC & CF shows, this is a crucial safeguard against unnecessary secrecy and inequality of arms, and not an issue on which Parliament should give way.

This brings me to the third and final thing that the House of Lords has not done. It has not introduced any requirement for a system of CMP, if enacted, to be the subject of independent review after a certain period of operation. This is something that Adam Tomkins and I proposed in our response to the Green Paper, if CMP were to be introduced. The JCHR has endorsed a similar idea.

As is often the case in relation to legislation relating to national security matters, Parliament is being asked to act on trust without seeing the evidence that has persuaded the Government to change the law. Parliament is asked to accept that exceptional cases raising intractable national security issues exist and that they pose real and justified problems for the Government and for the courts. But Parliament is being given no information about those cases.

In addition to this, the issue on which Parliament is being asked to decide is one of genuine complexity with clear potential to lead to unintended consequences for the civil justice system. There is no other country in the world that has such a system from which lessons can be drawn. In these circumstances it is appropriate that if some form of CMP is introduced, the legislation should require a full and independent review of its operation, which will obviously require Government cooperation. It should not be left to Select Committees, such as the JCHR, to attempt to do this of their own motion. Indeed, members of such committees would not have the requisite access to closed judgments to carry out a comprehensive review. Since this issue was not the subject of a vote, it is hoped that it may yet be the subject of amendment.

This blog has not by any means sought to address all the areas of concern in the Bill. It has said nothing, for example, about the clear potential for CMP to be used far and wide in cases against the military, the police and against other law enforcement institutions—way beyond the type of cases that are said to be prompting the Bill. My purpose in this blog has been to provide an overview of the House of Lords debates on key aspects of the Bill and to suggest that, far from being a defeat for the Government, the central features of the Bill remain intact and Parliament still has a great deal of work to do.


Tom Hickman is a Barrister, Blackstone Chambers and a Reader in Law, University College London.  

Suggested citation: T. Hickman, ‘Justice and Security Bill: Defeat or Not a Defeat: That is the Question’ UK Const. L. Blog (27th November 2012) (available at


Filed under Human rights, UK Parliament

Gavin Phillipson: Debating the Abu Qatada affair

I watched the BBC’s flagship political debate Question Time last week and saw a panel of senior politicians from the three main parties plus UKIP debate the implications of the Abu Qatada affair with the audience. You can watch it here (starts at 8 mins 27 seconds) and I urge you to do so. I found the debate illuminating and alarming in equal measure; it made me reflect seriously on how precarious Britain’s interwoven system of international and domestic protection for human rights may actually be these days. It seems a long time ago that we naively thought that repeal of the Human Rights Act was “unthinkable” – now withdrawal from the ECHR itself must seemingly be taken as a serious possibility, depending on the outcome of the next election.  The failure of the HRA to implant itself into our political, still less our popular culture was starkly apparent from the debate: I don’t think anyone even mentioned it. A statute that should surely be an important reference point in any discussion of a contemporary UK human rights issue has become so marginalised and misunderstood that it simply didn’t come up. Can one imagine American – or German – politicians discussing such an issue without mentioning their constitutional Bills of Rights – or Canadians, without mentioning the Charter? Also striking was the virtual unanimity in the panel and amongst the audience that Qatada should be on a plane to Jordan or at least that he should be behind bars – but apparently without the inconvenience of having to convict him of any offence. From a human rights perspective, it is perhaps hard to say which was the more depressing low-light of the debate: Harriet Harman for Labour seemingly calling for the return of internment of foreign nationals or Chris Grayling for the Tories explicitly leaving open the possibility of complete withdrawal from the ECHR. Every speaker was sure that Qatada was a dangerous terrorist (or least “not conducive to the public good” as Harman put it); despite the fact that he has never been convicted of a terrorist offence in this country, no-one allowed themselves to be troubled by the presumption of innocence.

The legal aspects of the latest judgment in the Qatada saga, delivered by SIAC, were ably analysed by Tom Hickman on this blog last week. The point of this post is not to consider this judgment, the Strasbourg one that preceded it, or the legal incongruities they throw up – something Hickman dissected well. Rather it is simply to point out how rapidly and radically human rights arguments seem to be losing the day – and to consider what lessons we can draw from this sobering snapshot of political attitudes towards rights in the post-Blair era.

The Question Time “debate”

What then were the lines taken by the speakers? Nigel Farage for UKIP called for the British Government to “show a bit of spine” and simply defy Strasbourg. He ended by saying – to loud applause – “to hell with the European Court of Human Rights”. Predictable enough, we might say. Tessa Munt, for the Liberal Democrats at least knew that the most recent judgment blocking Qatada’s deportation was by SIAC, not Strasbourg. But she devoted most of her comments not to supporting the rule of law or arguing for the sanctity of the anti-torture norm, but to say that it was “extraordinary” that Qatada was free to “walk the streets” during daytime hours and calling for him to be arrested. She didn’t say what for;  the fact that in 10 years the prosecuting authorities have not thought it possible to charge Qatada with anything, suggesting that the evidence is simply not there, didn’t seem to trouble her. (Qatada was arrested and questioned in February 2001 about a German terrorist cell. Due to a lack of evidence he was never charged). As well as failing to defend the anti-torture norm, she made no attempt to stand up for either the Convention or the Strasbourg Court.  And this from the pro-civil liberties, pro-European Liberal Democrats.

The Justice Secretary, Chris Grayling, as Lord Chancellor has particular duties by convention and under the Constitutional Reform Act 2005 to uphold the rule of law and judicial independence, so he was careful not to criticise any individual judges. He was clear that the government and other authorities had to obey rulings of a British court – but didn’t say whether the same applied to Strasbourg judgments. In relation to the European Convention he said repeatedly that the current “human rights framework” in Europe was not working and must be changed. He clearly and explicitly stated that outright withdrawal from the Convention was one of the options he was considering – the first time I have heard a sitting Lord Chancellor float this possibility. The clear reversal of the pro-Convention attitude of the previous Justice Secretary, Ken Clarke was starkly apparent.

Harriet Harman’s remarks on behalf of Labour were in some ways the most startling and depressing, both for their authoritarian tendencies and their seeming ignorance of the legal framework.  While Grayling is a known right-winger and Euro-sceptic, Harman has a strong background in human rights – she was a legal officer for the National Council for Civil Liberties – now Liberty – and has taken the British Government to Strasbourg and won cases there concerning both contempt of court and the legal status of MI5.  One might therefore have hoped for a robust defence of human rights and the rule of law from one of Labour’s most seasoned campaigners for civil liberties. She did say – almost in parentheses – that we shouldn’t deport people to countries where they could be tortured or have torture evidence used against them in court.  But the main thrust of her remarks, like those of her Liberal Democrat colleague, was directed against the fact that Qatada was “walking around free”. But whereas Munt appeared to be calling for Qatada to be put on trial, Harman explicitly and repeatedly called for a return for internment.  “We did have a system in the past” she said, for detaining non-British citizens whom the authorities consider a threat to national security but can’t deport because of the risk of torture.  Later remarks clarified that this did not refer to detention with a view to deportation (lawful under Article 5(1)(f)) but rather to detention of those we know we cannot deport. It was also clear that it referred to those who we cannot convict in a court of law.  Seemingly, therefore she was calling for something like the re-enactment of the powers under Part IV of the Anti-Terrorism Crime and Security Act 2001 to detain foreign terror suspects indefinitely without charge.

To have a Labour Shadow Minister calling for a return of this draconian and discredited power was alarming enough. Worst still was her seeming ignorance of the legal background (Harman has served as Solicitor General and holds the honorary title of QC).  First, the introduction of detention without trial would plainly violate Article 5 of the Convention, and therefore require the UK to derogate from it (as in 2001), something in turn which requires there to be “a public emergency threatening the life of the nation.”   But Harman never acknowledged this, or suggested that such an emergency exists. Second, although she was a member of the Government at the relevant time, she seemed not to know why the Part IV ACTSA power had been withdrawn. Harman said was that it was a judgment of the Strasbourg court that  prevented detention without trial of foreign nationals. She said several times that the remedy for this was that all the European countries for whom this judgment was a problem should go “back to Strasbourg” and say “we must have the right to determine our own immigration processes,” including – seemingly – the power to detain those who cannot be deported.  What is baffling about this is that it was of course a judgment by a British court – the then House of Lords in what we like to call the “famous” Belmarsh judgment – that found the Part IV indefinite detention powers unlawful under the Convention; the House found that even assuming that there was a public emergency, detaining only non-nationals was irrational, discriminatory and disproportionate.  Yes, Strasbourg endorsed that finding five years later in A v UK (2009) but it is the Belmarsh judgment that led to the withdrawal of Part IV, and which still stands as a precedent binding on lower courts.

The third point relates to the grounds that Harman gave for detaining Abu Qatada without trial. She complained several times about the cost of keeping him under surveillance and concluded (this is a quote): “We wouldn’t feel unsafe and it would be cheaper.” Aside from the fact that these are somewhat flimsy grounds on which to introduce so grave a step as internment, Harman must surely know (mustn’t she?) that they could never justify a derogation. Finally, none of the politicians mentioned the UN Convention Against Torture, to which the UK is a signatory, Article 3 of which specifically prohibits deportation to torture.

In all of this, it was left to the non-politician guest – the CEO of Saatchi, Moray MacLennan, to, as he put it, introduce a small note of dissent by mildly querying why, if Qatada was such a notorious terrorist, he had never been charged with any criminal offence.  In contrast, all the comments from the audience were hard-line. One man said, to applause, “we’re a soft touch –everyone in Europe knows we’re a soft touch”; an Asian teenage boy said firmly that foreign nationals engaged in terrorism-related activity should be locked up. Since he mentioned nothing about a charge, trial or a conviction, this appeared to be a pro-internment comment – also applauded. Meanwhile another man said simply that there must be some way of sending Qatada back to Jordan while another bizarrely said that Qatada’s fate should be decided by a referendum.


What are we to make of the above? Am I being alarmist, or overly pessimistic? After all, both the Labour and Liberal Democrat spokeswoman did say that we shouldn’t send Qatada to Jordan, which is something.  Perhaps also, someone might say, Harman was not seriously calling for a return to internment (even though that is what she said). She just knew that Qatada and his rights are wildly unpopular and thought that anything other than sounding “tough” about him would be political suicide; besides Labour would never be held to her call for the return of internment. Perhaps even the Tories would never really pull us out of the ECHR – perhaps they just make vague threats to appease press and popular anger – about Qatada, and about prisoner’s voting rights. Even granted all these things, as a snapshot of contemporary political attitudes about rights, the Question Time debate was still deeply disturbing. Even if Harman didn’t mean what she said, the fact that she felt she had to call for detention without trial just to keep Labour on the right side of public opinion on the Qatada issue would still be deeply disturbing in showing where the centre of gravity now lies in public discussion of human rights.

Moreover, even if some of the Tories don’t really mean it when they threaten to pull out of the Convention (and I think at least some of them are in deadly earnest), their comments steadily chip away at the legitimacy of the Convention, rapidly making what was previously unthinkable – save for those on the really hard-core anti-European Right – a mainstream policy option.  Such calls also steadily build up expectations amongst the right-wing media and sections of the public that this will actually happen. The Tories have now been making angry noises about the HRA and the Convention for a long time: they won’t be able to fob off their supporters, UKIP, the Sun and the Mail for much longer with Bills of Rights Commissions and vague promises of a “British” Bill of Rights. Even when politicians say things they don’t mean to appease an angry electorate it still confirms my suspicion that in many, perhaps most cases, when it comes to the rights of unpopular minorities like terrorism suspects and asylum seekers, votes lie in restricting, not upholding rights.

Finally, for those of us who do not vote Conservative, and are desperate to see a more progressive Government after 2015, we are left gloomily watching debates like this, and Yvette Cooper outflanking the Coalition to the right by repeatedly attacking the Government for removing the power to impose internal exile on terror suspects subject to a TPIM (which replaced Control Orders). The removal if this power, found to be peculiarly destructive of controlees’ lives, was one of the few concrete ways in which TIPMs improved upon Control Orders. Political constitutionalism calls for questions of rights to be determined not in the courtroom but through democratic means. If the only sure way to get a better government is to vote Labour, but Labour is in some respects at least, profoundly illiberal and authoritarian, then many of us will hold our noses and vote Labour anyway. But in what real sense is that a democratic determination of rights issues? When all politicians on a panel agree on an illiberal line, where is the real political debate about rights?

The purpose of this post is not argue that we should give up on political protection of rights and trust the judges instead.  Regardless of whether our preferences in political philosophy lean towards Dworkin or Waldron, in a country such as ours at least the argument for rights has got to be won in the political sphere. This is so if only for the practical reason that, were our elected representatives to withdraw their support for the human rights project, the judges will have their legal rights-protecting tools – the ECHR and the HRA – taken away from them. While common law norms might stage a limited fight-back in such circumstances, ultimately it is the political domain that will decide whether the UK will continue to accept the judgments of Strasbourg, whether some prisoners get the vote, and whether we lock up terror suspects without trial because it’s cheaper and makes us feel safe. As Conor Gearty has said, we must therefore “fight the good fight” for human rights in the political realm. But it’s important to know just how uphill a struggle it will be – just how entrenched ignorance and contempt for human rights norms may be becoming – even these we like to think of as both elementary and central to our democracy.

 Gavin Phillipson is a Professor of Law at Durham University.

 Suggested citation: G. Phillipson, ‘Debating the Abu Qatada affair’ UK Const. L. Blog (24th November 2012) (available at


Filed under Human rights, Judiciary

Paul Daly: Clinging to Gun Data

On the afternoon of December 6, 1989, Marc Lépine entered the École Polytechnique in Montréal. Over the course of about 30 minutes, Lépine prowled the corridors, classrooms and cafeteria, rifle in hand. He shot and killed fourteen women before turning his gun on himself. Fourteen others were wounded.

That horrific event still has significant political salience in the province of Québec. It forms something of a backdrop against which to consider a dispute between Québec and Canada’s federal government. The dispute centres on whether information about rifles and other long-guns should be stored in a database which can be accessed by the authorities for law-enforcement purposes.

Nobody seriously questions the requirement that gun owners be licensed. Nor does anybody seriously question the registration – or outright prohibition – of handguns and automatic weapons. The current dispute is about one thing only: the registration of long guns.

Registration of these weapons by the federal authorities began only in the late 1990s, under the Firearms Act. That legislation established an interlocking scheme: both federal and provincial officials contributed to the scheme’s operation. An agreement between the federal and provincial governments regulated how data was collected, used and accessed.

Last year, Stephen Harper’s Conservatives were returned to the federal Parliament with a majority. One of the planks of their platform was the abolition of the long-gun registry. Its critics decried the registry as ineffective in combating crime and effective only at exposing law-abiding citizens to criminal sanctions. Defenders of the registry countered that it is used by police officers on a daily basis. And in Québec the lingering psychic effects of the Polytechnique massacre mean that stringent registration requirements have significant symbolic value.

Earlier this year, Bill C-19 was introduced in the federal Parliament. It received Royal Assent in April. The legislation, entitled An Act to amend the Criminal Code and the Firearms Act, prospectively abolished the requirement to register long guns. More dramatically, section 29 provided for the destruction “as soon as feasible” of all the data that had been collected during the operation of the long-gun registry.

The Québec government sprang into action, attacking the constitutionality of the federal legislation, with the ultimate goal of establishing its own long-gun registry. Shortly after passage of the legislation, it successfully invoked the inherent jurisdiction of the Québec superior court and obtained an injunction preventing the destruction of the data. After a subsequent hearing on the merits, section 29 was held to be unconstitutional, but only as it applied to data from Québec: Québec (Procureur général) c. Canada (Procureur général), 2012 QCCS 1734.

Meanwhile, in Ontario, a charitable organization unsuccessfully sought a more radical injunction compelling the federal government to maintain the long-gun registry: Barbra Schlifer Commemorative Clinic v. HMQ Canada, 2012 ONSC 5271.

My focus here will be on the latter two decisions. Of those, the Québec decision is of greater importance: the federal government has already appealed to the Québec Court of Appeal. Review by the Supreme Court of Canada is a strong possibility.

One final preliminary remark is necessary. Canada is a federation. Jurisdiction is regulated by the provisions of the Constitution Act, 1867, especially sections 91 and 92. Section 91 sets out the powers of the federal government: trade and commerce, creation of criminal laws, and banking are some representative examples. Those of the provinces are set out in section 92: for example, taxation within the province, solemnization of marriage and – broadest of all – property and civil rights in the province.

Guns fall comfortably within the very broad understanding of property and civil rights in the province. From where, then, did the federal government get the authority to establish the long-gun registry in the first place? In 2000, the Supreme Court of Canada upheld the constitutionality of the Firearms Act on the basis that it was a legitimate exercise of the federal government’s power to pass criminal laws. Regulation of firearms was said to have a “double aspect”. Accordingly, it was open to either the federal or provincial authorities to enact legislation, under the criminal law and property and civil rights jurisdictions respectively.

For the Québec and Ontario courts, the questions raised by the data-destroying legislation were novel, revolving around the federal government’s power to decriminalize some types of behavior (i.e., not registering one’s weapon) and to undo unilaterally a registry which had been created, in reliance on the double aspect doctrine, in cooperation with the provinces.

In Québec (Procureur général) c. Canada (Procureur général), Québec claimed that the federal government had no jurisdiction to destroy the long-gun registry data. The federal government’s response was straightforward: just as it could invoke the criminal law power to establish the long-gun registry in the first place, so too could it invoke the criminal law power to repeal the existing law.

Unfortunately for the federal government, Conservative politicians had crowed rather too loudly about the destruction of the long-gun registry. Blanchard J. seized on remarks which suggested that the whole purpose of Bill C-19 was to prevent the provinces from creating their own long-gun registries. Given that gun registration clearly falls within provincial jurisdiction over property and civil rights, these remarks revealed a naked attempt on the part of the federal government to interfere in the governance of the provinces. This rendered the purported exercise of the criminal law power ultra vires the federal government.

Moreover, Blanchard J. held that the unilateral destruction of the long-gun registry data violated the principle of cooperative federalism. This principle aims at harmonious coexistence between the federal and provincial governments, and indeed underpins the double aspect doctrine that allowed the federal government to create the long-gun registry in the first place. For one level of government to deliberately stand in the way of another to prevent it from legislating within its area of competence was to violate the principle of cooperative federalism.

Finally, Blanchard J. considered the question of ownership of the long-gun registry data. Striking down the provision authorizing the destruction of the existing data would have represented merely a symbolic victory for Québec. To establish its own long-gun registry, it needed in addition an order compelling the federal government to transfer the data to it. Blanchard J. concluded that the agreement between the federal government and the provinces did not identify any “owner” of the data. However, he held that because of its contribution to the collection of the data, Québec had as much of an interest in the data as any other entity. Accordingly, Blanchard J. ordered the federal government to transmit them to Québec.

Meanwhile, in Ontario, the Barbra Schlifer Commemorative Clinic, a body set up in memory of an Osgoode Hall law student murdered in the 1980s, did not fare so well in Barbra Schlifer Commemorative Clinic v. HMQ Canada.

With the other provinces shying away from asserting claims to ownership of the long-gun registry data, the Clinic’s claim was inevitably different in nature. It was also weaker.

The Clinic relied on the Canadian Charter of Rights and Freedoms: section 7, which protects life, liberty and security of the person, and section 15, which guarantees equal treatment. The Clinic argued that the abolition of the long-gun registry imperiled bodily integrity, and in a way that would disproportionately impact on women, because long-guns are instruments of domestic violence.

Just as Québec had initially done, the Clinic sought an injunction to prevent the federal government from destroying the data. This fell to be analyzed under the familiar American Cyanamid principles – serious case, irreparable harm and balance of convenience – which apply universally in Canada. The federal government countered with a motion to strike the Clinic’s claim.

The federal government successfully characterized the logical conclusion of the Clinic’s argument as the imposition of a positive obligation to maintain a long-gun registry. This was an entirely novel argument. If the Clinic were to demonstrate that prospective abolition of the long-gun registry breached sections 7 and 15 of the Charter, the federal government would have to legislate for the registration of long guns. At such an early stage of the litigation, Brown J. was reluctant to strike the Clinic’s claim entirely. Nevertheless, the federal government’s characterization of the Clinic’s claim influenced Brown J.’s decision not to grant an injunction.

After a thorough analysis of the Clinic’s arguments and the statistical evidence adduced in support, Brown J. held that the Clinic had raised a serious question to be tried, but only just: the statistical evidence it could muster was weak. Domestic homicides have been, on Brown J.’s reading of the statistics, on a long decline to which the long-gun registry seemed not to have contributed. The weakness of the statistical evidence also tended to suggest that no irreparable harm would be suffered were the injunction to be denied.

Brown J. also noted that, if the Clinic succeeded on the merits in imposing a positive obligation to maintain a long-gun registry, the result would be a financial burden on the taxpayer rather than the infliction of irreparable harm.

Finally, for the purposes of the balance of convenience analysis, the Clinic could not demonstrate any public interest that would be furthered by granting the injunction. This conclusion may seem odd, but Brown J. noted that legislation is presumed to promote the public interest for the purposes of the balance of convenience analysis. Critically, unlike Québec, the Clinic could not demonstrate any ownership interest in the data, and it did not itself have any authority to create or recreate a long-gun registry.

One nuance that can be perceived in Blanchard J.’s judgment does not appear to have influenced his Ontario counterpart, Brown J. There is arguably a distinction between imposing a prospective positive obligation to criminalize acts or omissions and imposing a restriction on destroying existing data. Indeed, a restriction on destroying existing data can stand independently of a prospective positive obligation. The significance of the distinction is that if the present federal government were prevented from destroying the existing data, it would leave the door open for a future federal government of a different ideological bent to repatriate the data to the provinces or to reanimate the long-gun registry. This might have been enough to ground a sufficient ownership interest in the existing data. Since these decisions were handed down, however, the October 1 deadline to commence destruction of the data has passed. The data having been destroyed, the point is now moot.

We have thus reached the anomalous position that all of the long-gun registry data has been deleted, except for that relating to the province of Québec. This data remains in the hands of the federal government. Its ultimate fate will lie in the hands of the Québec Court of Appeal and Supreme Court of Canada.

Paul Daly is a member of the Faculty of Law at the Université de Montréal. He can be reached at He blogs at

Suggested citation: P. Daly, ‘Clinging to Gun Data’, UK Const. L. Blog (22nd November 2012) (available at

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Filed under Comparative law

Derek O’Brien: Judicial Independence in the Caribbean and Petitions Pursuant to Section 4 Judicial Committee Act

The case of Chief Justice of the Cayman Islands v The Governor and Judicial Legal Services Commission ([2012] UKPC 39) is, arguably, at least as interesting for the questions that the Judicial Committee of the Privy Council (JCPC) did not answer as for the ones that it did and I will, therefore, address both in this blog. I will begin with a brief overview of the unanswered questions, which help to explain the context in which the questions that the Board did answer arose.

The first relates to the extension of the appointment of a Justice of the Grand Court of the Cayman Islands. This is governed by s.96 of the Cayman Islands Constitution, which provides that the Governor may permit a judge of the Grand Court who has reached the age of 65 to continue in office until he has attained such later age, not exceeding the age of 70 years, as agreed between the judge concerned and the Governor, following the recommendation of the Judicial and Legal Services Commission (JLSC). The JLSC is an independent body comprising one ex offico member, being the President of the Court of Appeal, and seven other members appointed by the Governor including: a chairman and one other member, appointed in consultation with the Premier and Leader of the Opposition; a senior judge with recent knowledge of Cayman’s courts; two senior judges from another Commonwealth country or Ireland; and two lawyers qualified to practice in the Cayman Islands. Members of the Legislative Assembly and candidates for elections are disqualified from membership of the JLSC.

Justice Henderson, a Justice of the Grand Court, whose appointment expired in June 2011, by which time he would have been older than 65 (his appointment having preceded the coming into force of the 2009 Constitution), had asked the Governor in December 2010 for an extension of his appointment. The Governor, in turn, sought the advice of the JLSC, which recommended that there was no basis upon which it was necessary in the interests of the administration of justice for Justice Henderson to continue in office beyond the age of retirement, and the Governor duly notified him that he would not be extending his appointment.  The Chief Justice objected to this decision, arguing that the JLSC had wrongly approached the question of the extension of Justice Henderson’s  appointment on the basis that it required ‘exceptional circumstances’ before an extension would be granted and, as a result, had reached an incorrect interpretation of s.96, bearing in mind the way that the section was expressed and the need to preserve judicial independence so that Justices of the Grand Court enjoyed security of tenure free from discretionary intrusion by the Executive.

The second question relates to the power of the Governor, acting in accordance with the advice of the JLSC, to exercise disciplinary control over judges. In early 2012, the JLSC published a Code of Conduct and a Complaints Procedure in relation to the Cayman Islands judiciary, which permits the JLSC after it has investigated a complaint against a judge to advise the Governor that the case calls for the exercise of such powers of disciplinary control short of removal from office as are conferred upon the Governor by s106 (1) of the Constitution, which empowers the Governor to exercise disciplinary control over the judiciary. The Chief Justice objected to this aspect of the Complaints Procedure on the ground that the Constitution did not permit the Governor to ‘impose disciplinary sanctions short of removal.’ I will return to both of these questions later, but first I must sketch out the background to the questions that were answered by the Board.

Ordinarily, it would be expected that in the first instance the two questions outlined above would have to be answered in the Grand Court of the Cayman Islands by way of judicial review proceedings. The Chief Justice, however, instead petitioned Her Majesty to refer the two questions directly to the JCPC for advice, which she did pursuant to pursuant to s.4 of the Judicial Committee Act 1833, which provides that:

 “It shall be lawful for his Majesty to refer to the …judicial committee for hearing or consideration any such other matters whatsoever as his majesty shall think fit; and such committee shall thereupon hear or consider the same, and shall advise his Majesty thereon in manner aforesaid.”

The Governor having objected to the substantive questions raised in the Petition being dealt with by the JCPC before they had been considered by the Grand Court of the Cayman Islands, the JCPC was obliged to consider whether  it was open to it to decline to rule on issues raised in a Petition referred to it by the Monarch and, if so, the circumstances in which it would be appropriate for it to do so?

In answer to the first of these questions the Board concluded that in the absence of any clear authority on the point it was open in principle to the Board to advise that it was inappropriate to provide substantive answers to the issues raised in a s.4 Petition, if it considered that this was the right course to take. Not only  would it be unattractive for a tribunal to be precluded by law from answering a question referred to it in terms which it considers to be right, but it was also highly unlikely that s.4 was intended to preclude the Board from considering this very issue.

This still left the question of whether this was the right course to take in the instant case and in the Board’s view it was because it would be inappropriate, in the absence of special factors, to consider issues raised in a s.4 petition when, as here, those issues could be raised in the first instance by way of ordinary proceedings in the courts of the territory in which the issues arose. This is, in part, because in a tiered court system the conclusions and reasonings of a higher tier court are likely to be better than that of a lower tier court, as the arguments of the parties tend to become refined and improved as the case progresses up the system, and the judges in a higher tier court benefit from the reasoning of the lower tier courts. It is also in part because respect for the courts of the territory concerned requires that they should have the opportunity to express a view before the JCPC is seised of the case.

But were there any special factors in the instant case, which might justify the questions raised by the petition being considered substantively by the JCPC?  In the Board’s view there were none. The Board was not persuaded by the Chief Justice’s argument that no permanent judge of the Grand Court could deal with the issues raised by the petition because they all supported the position of the Chief Justice and, besides, had an interest in the outcome. As the Board pointed out, it was open to the Governor to appoint a temporary judge under s.97 of the Constitution to hear the judicial review application; the Governor having made it clear that in such a case he would ask the Lord Chief Justice of England and Wales to nominate a temporary judge for that purpose. The Board also rejected the Chief Justice’s other arguments, namely: that it would be difficult to find a suitable Court of Appeal panel; that the issues raised by the Petition were of such high constitutional importance that they ought to dealt with by the Board; that the Board ought to give weight to the wishes of the Chief Justice to have the Petition determined by the Board, and that it would save time and costs to do so. In the Board’s view, the fact that the matters raised were of high constitutional importance only reinforced their conclusion that they ought to be dealt with, initially, by the Grand Court; and whilst weight must be given to the Chief Justice’s wishes, this was counterbalanced by the fact that the Governor did not wish the Board to rule substantively on the Petition.

All of this means that the two substantive questions raised by the Petition will now have to be considered in the first instance by the Grand Court. In dealing with the first of these questions the Grand Court may wish to have regard to the constitutional position in other countries in the Commonwealth Caribbean.  In most of these there is simply no possibility of extending a judge’s appointment once they have reached retirement age save for example, for the purposes of delivering a judgment in proceedings that have already begun. This is presumably to avoid the incentive that the prospect of such an extension might offer to judges to hand down judgments that favour the government. However, in those few countries in which an extension of a judge’s appointment is permitted by the Constitution – The Bahamas, Barbados, Belize and the member states of the OECS (Antigua, Dominica, Grenada, St Lucia, St Kitts and St Vincent) – it is notable that there is considerably more political input than is contemplated by the provisions of the Cayman Constitution to which the Chief Justice objected . Thus, in the Bahamas and Barbados, decisions about extending a judge’s appointment are taken more or less exclusively by the Prime Minister. Though the Prime Minister is required to consult with the Leader of the Opposition this is usually no more than a formality. In Belize, decisions about the extension of the Chief Justice’s appointment are taken by the Prime Minister after consultation with the Leader of the Opposition, and in the case of the other judges extensions are granted upon the advice of the JLSC, but require the concurrence of the Prime Minister after consultation with the Leader of the Opposition. Amongst the OECS countries the power to extend a judge’s appointment ostensibly lies with the JLSC, but the JLSC can only act with the concurrence of the Heads of Government of all the member states. Viewed from a comparative perspective then the position under the Cayman Constitution, where the extension of a judge’s appointment must have been recommended by the JLSC, arguably affords considerably more protection against political manipulation than is afforded in those neighboring countries that permit extensive Prime Ministerial input into decisions about the extension of a judge’s appointment.

The Chief Justice’s objection to the Governor’s powers to impose disciplinary sanctions upon a judge short of removal, however, looks at first glance much stronger from a comparative perspective, since such a power does not exist in any other Commonwealth Caribbean country. The closest parallel is, possibly, Guyana where a judge, who has persistently failed to give written or oral decisions and reasons for the decisions within the period prescribed by the Time Limit for Judicial Decisions Act 2009, may be notified that if he persists in his default action may be taken to remove him from office. However, it is arguable that at the time the independence constitutions of these countries were drafted there was a quite different understanding of the concept of judicial accountability and that they are not, therefore, the best guide to current practice.

If the Grand Court looks outside the Commonwealth Caribbean, however, it will see that a power to discipline judges short of removal from office exists in a number of common law countries, such as the United States, Canada and the United Kingdom. It might also note, however, that in these countries the disciplinary process short of removal is kept very much in-house, being administered entirely by the judiciary. This, at least, addresses the objection, based on the principle of the separation of powers, that the power to impose sanctions short of removal should not be vested in someone like the Governor, who is the Head of the Executive branch. But this is not the only possible objection to the existence of such a power, which has also been criticised by some for having a chilling effect on the capacity of judges to render impartial justice because it invites dissatisfied litigants to harass judges who rule against them (Irving R Kaufman, ‘The Essence of Judicial Independence,’ Columbia Law Review, Vol.80, No.4 671-701).

It remains to be seen whether the Chief Justice’s objections are upheld by the Grand Court. It seems likely, however, based on constitutional practice elsewhere in the Commonwealth Caribbean, that the Grand Court will not regard the involvement of the Governor in decisions about a the extension of a judge’s appointment as fatal. Moreover, while there may be principled objections to the imposition of sanctions upon judges short of removal, precedents for the existence of such a power can be found in a number of other jurisdictions, including the UK.

Derek O’Brien is Principal Lecturer, Law School, Oxford Brookes University.

Suggested citation: D. O’Brien, ‘Judicial Independence in the Caribbean and Petitions Pursuant to Section 4 Judicial Committee Act’,  UK Const. L. Blog (20th November 2012) (available at

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