Monthly Archives: January 2013

Jo Eric Khushal Murkens and Peter Jones: Salmond and Cameron order a dog’s dinner at the EU café

jo-mur1 peterCountries that are used to referendums on constitutional matters use them sparingly. The UK has no such constitutional requirement, but faces the possibility of having to deal with two such referendums within the spate of a few years. The first referendum could see Scotland break away from the United Kingdom, the second could see the United Kingdom (which by then may or may not include Scotland) break away from the European Union.

The common issue to both Alex Salmond and David Cameron is political sovereignty. They both want more of it; Salmond wants to claim it from the UK, Cameron wants to claim it from the EU. In that narrow sense, they are both nationalists; Salmond a Scottish one, Cameron a British one. Both also want, they claim, to be good European citizens but have to contend with the problem that the European club they want to be members of has rules which conflict with their visions of the idealised club they imagine it should be. And the promotion of this idealised vision to their voters leads them both to political positions which are incoherent.

For the SNP which was, until the advent of devolution in 1999, a minority fringe party, the ‘Independence in Europe’ policy was never subjected to serious examination. It was not much more than a political slogan used in political debate to counter the separatist charge levelled by opponents. The most that was done to develop this policy was to locate sympathetic European luminaries who gave the SNP helpful quotes asserting that upon independence, Scotland would move seamlessly into EU membership. It became an article of SNP faith that Scotland would be warmly welcomed into the happy European family, effectively countering ‘separatist’ accusations. So cemented into SNP ideology is this belief that Nicola Sturgeon, deputy first minister, told the Scottish Parliament’s European and external relations committee in December 2007: ‘It is the clear view of the Scottish National Party and the [Scottish] government that Scotland would automatically be a member of the European Union upon independence.’

The automaticity proposition founders on the rather obvious point that while the people and territory of Scotland may already be in the EU, the Scottish government is not. And the Scottish government being in the EU requires its votes in the European Council and other entitlements to be written into EU treaties which can only be done with the unanimous consent of all other member states.  This remains the case. The SNP, however, refuses to acknowledge this point because it raises the vision of Scotland being outside the EU and having to bang on the door begging to be allowed in out of the cold, bringing the separatist bogey back into play.

The battle against the separatist charge has had to be fought on another front – within the UK. Unionists have alleged that independence will mean that families with members on either side of the border will become fragmented, that they and commercial trade will have to negotiate border controls at Berwick and Gretna Green, that Scotland will lose access to popular BBC shows such as East Enders and Strictly Come Dancing and so on. To counter this, the SNP has devised a new strategy – that while the political union of the UK will come to an end, the social and civil union will continue and prosper. Thus families will be just as united and able to jointly celebrate such things as the Queen’s birthdays and anniversaries as she will still be the titular head of state in an independent Scotland.

Harsh economic realities, however, have forced the extension of this soft unionism into harder areas. The stresses and strains that the Euro currency is under have made it as unattractive to Scots as it is to the English. The SNP, because of the more prosaic reality that some 60 per cent of Scottish trade is with the rest of the UK and that it makes no sense to erect a currency barrier to that trade while tearing one down to benefit the 20 per cent of Scottish trade that is with the Eurozone, decided some time ago that an independent Scotland would stick with sterling as its currency until such time as there are economic benefits to joining the euro, which would only occur after a referendum.

The travails of the euro and the proposed deeper integration remedies, however, demonstrate that such a currency union would erode Scotland’s fiscal independence. Proposed tax changes and government budgets would have to come under the tutelage of the, with independence, foreign institutions of the UK Treasury and the Bank of England. Various unionist politicians, such as Treasury chief secretary Danny Alexander and former chancellor Alistair Darling, have argued either that the UK government simply could not countenance such an arrangement, or that the arrangements would be so restrictive as to nullify the claimed gains from political independence.

The SNP’s counter to this has been to assert a rather crude truth, that as sterling is a fully tradeable currency, the UK cannot stop Scotland from unilaterally adopting the pound. This, however, looks unsatisfactory from the point of view of independence. It leaves monetary policy, the determination of interest rates, and the operation of quantitative easing in the Bank of England’s hands. The SNP also claim, rather more vaguely, that the fiscal stability pact necessary to a currency union need not be so restrictive when, in fact, the lesson of EU struggles to stabilise the euro point to tighter rather than looser centralised fiscal controls.

This puts Salmond in the odd position of being, simultaneously, a Scottish nationalist, a European federalist, and a British unionist. He wants Scotland to have untrammelled use of its own credit card to dine at the same time in the British and European restaurants, but refuses the table d’hôte menu and insists on picking from two à la carte menus which neither chefs seem willing to offer.

Cameron is in only a slightly less strange place. He wants to trade heavily on his British nationalism with his domestic audience but waves his European unionism when on the other side of the English Channel. Both audiences are, however, able to see what is being presented to the other and thus he runs the high risk of undermining his message to one by his contrary calls to the other.

In his speech on the EU on 23 January 2013, David Cameron set out his intention to renegotiate the UK’s relationship with the EU and put the terms of that changed membership to the British people in an in/out referendum by the end of 2017, subject to the Conservatives winning an outright majority in the general elections in 2015. His speech received global attention and a mixture of praise (‘agree that the EU needs to be reformed’) and criticism (‘disagree with the language of unilateral negotiations and the threat of withdrawal’). Much of the commentary, indeed much of the speech itself, is based on the dubious premise that the UK is a major player in the European Union.

On one level, the UK undoubtedly sits at the top table: it has the third largest population and the third largest economy in the EU. However, the UK already has differently negotiated relationship with the EU than the other member states. It gets a significant rebate on its financial contributions to the EU budget; it has external borders with other EU member states; it has its own currency; it did not sign the fiscal stability treaty which requires budget prudence and introduces a debt brake for the 17 Eurozone states; and it will not (unlike 11 Eurozone states) impose a financial transaction tax which is designed to discourage speculative trading. Moreover, the UK limited the justiciability of the Charter of Fundamental Rights and the way in which it may be interpreted. And its red-lines approach at the IGC in 2007 means that the UK can itself decide (by 31 May 2014) whether to implement all the European measures on police and justice (which will be subject to the jurisdiction of the CJEU) or whether to opt out of all the measures and then adopt individual measures on an ad hoc basis (subject to the consent of the other member states). (Although how exactly the latter option ‘cuts red tape’ is anyone’s guess).

If this isn’t à la carte, then what is? What more does Cameron want to renegotiate? No one knows, and no one has yet produced a checklist, although the government will be working on one until the autumn of 2014. For the time being, the Working Time Directive, the European Arrest Warrant, and a better deal on fisheries keep coming up in debate. Is it realistic to argue that powers in those areas can be returned to the member states? The practical options are the following. Either the UK tries to tackle the matter from above by reducing the law-making powers of the EU institutions (that option would require a treaty change and the unanimous agreement of the other member state which is, currently, unrealistic). Or the UK tries to negotiate a better ‘deal’ for itself (e.g. through opt outs and protocols that are attached to the Treaty). But is it credible that the other member states would grant the UK special treatment when every member state is subject to aspects of EU law of which it disapproves and would dearly like to roll back the frontiers of European law and policy? So neither option seems workable.

On a more fundamental level it seems baffling that British Euroscepticism would appear to hinge on a handful of powers that need to be ‘repatriated’. It doesn’t, and it is ludicrous to suggest that the Europhobes in the Conservative party will be placated if junior doctors work longer, and UK nationals who are wanted on charges abroad cannot be extradited (whereas, of course, UK nationals who have committed a crime in the UK but fled to another EU member state will immediately be brought back home). On fishing, where the real issue is depleted stocks through overfishing, the Commission is already transferring decision-making powers to the member states in an attempt to decentralise fishing policy and tailor it to local conditions. As Douglas Alexander put it: ‘The gap between the minimum the Tories will demand and the maximum the EU could give is unbridgeable’. These are not the fundamental issues, and any self-respecting Europhobe will not rest until the UK has exited the Union and re-attached itself to the single market like a dingy to a supertanker.

So if Cameron’s speech does not stand up to scrutiny from a European perspective, maybe its intended target was closer to home. Almost all foreign and domestic observers noted that the speech was driven primarily by domestic party politicking (UKIP) and internecine party struggles (Bill Cash). Cameron is trying to unify a fractured party in the run-up to the general elections in 2015, and UKIP and the Tory backbenchers forced his hand. But even domestically Cameron may have dealt himself a bad hand. The offer of a referendum on renegotiated membership after the next general election is subject to two known unknowns: i) the outcome of the 2015 elections; ii) the outcome of the negotiations. It is presently far from clear whether he will be successful with respect to either or both.

Until then Cameron will be seeking, not so much nouvelle cuisine as cuisine impossible, just like Salmond: untrammelled UK access to the European single market restaurant, refusal of the table d’hôte menu and insistence on the à la carte menu which is not on offer. And then he will have the nerve to ask for a rebate (i.e. other member states subsidising his dining) when presented with the bill.

Conclusion

Cameron’s policy on the EU is just as incoherent as the SNP’s policy on continuing EU membership on current terms. Cameron assumes he will win the next election, just as Alex Salmond assumes that Scotland will automatically be an EU member state. Cameron claims that he can walk into the room and negotiate a new deal (‘I am an optimist, not a pessimist’, Cameron responded to a question on this issue by a journalist after his speech). Salmond claims that he can secure Scotland’s place in Europe on current terms, i.e. by inheriting the UK’s opt outs on the Euro currency and the Schengen free travel area, which is illusory.

Moreover, a referendum (if one is to be had) needs to set out two clear choices before the referendum. The in/out referendum on the EU or the Yes/No referendums on Scottish independence do not offer sufficient alternatives. What will come after EU membership? A free trade (all pay and no say) agreement with the EU like Norway? The Commonwealth? The USA? NAFTA? The global market? Splendid isolation?

Likewise, Salmond promises continuity when any EU lawyer, politician, and bureaucrat will tell him that there is no automatic right to membership of the European Union. So, what if membership is not automatic? Will Scotland stay outside the EU? Have its application fast-tracked? Join the queue of applicant states? He also promises currency continuity within a skeletonised British union, when there are an array of economists and Treasury politicians past and present saying it either will not work or will render the gaining of political independence pointless. So what will happen then? Freelance use of the pound? Enforced joining of the euro? Invention of a Scottish currency?

The à la carte menus offered by both are, in reality, dogs’ dinner.

Jo Eric Khushal Murkens, Department of Law, London School of Economics and Political Science

Peter Jones is a freelance journalist, writing on Scottish current affairs for The Economist, the Times and The Scotsman. He is also, with Jo Murkens, a co-author of Scottish Independence: A Practical Guide, EUP 2001.

Suggested citation: J. E. K. Murkens and P. Jones: ‘Salmond and Cameron order a dog’s dinner at the EU café’ Const. L. Blog (31st January 2013) (available at http://ukconstitutionallaw.org)

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Kate Malleson and Graham Gee: Who should have the final say in lower level judicial appointments?

malleson-photo-2010graham-gee-webThe Crime and Courts Bill is making its way through Parliament. As noted in an earlier post, the Bill proposes to pass responsibility for appointing Circuit Judges and District Judges from the Lord Chancellor to the Lord Chief Justice. This represents a potentially significant power shift in judicial appointments, yet it has attracted very little attention. In this post, we outline some of our concerns.

Current Practice

The Judicial Appointments Commission currently selects a candidate for each vacancy on the Circuit and District Bench. The JAC is required by statute to consult with the LCJ about its proposed candidate. After consultation, the JAC recommends a candidate to the Lord Chancellor, who can accept or reject the recommendation, or invite the JAC to reconsider it. In practice, the Lord Chancellor almost always accepts the recommendation of the JAC, with only 5 vetoes from almost 3000 recommendations since 2006.

Recent Lord Chancellors have exhibited little interest in lower level judicial appointments. Jack Straw, for example, described the Lord Chancellor’s role in such appointments as “ridiculous”. Similarly, Ken Clarke described it as “ceremonial and ritualistic”, explaining that neither he nor his officials in the Ministry of Justice were in a position to “second-guess” the recommendations of the JAC because they did not know the candidates.

As successive Lords Chancellors have retreated from involvement with lower level appointments, the views of the LCJ on candidates selected by the JAC have assumed greater importance. Indeed, it was said that Ken Clarke would only accept a recommendation from the JAC that had first been approved by the LCJ.

It is perhaps not surprising that there was widespread support in response to the government’s consultation paper for transferring the final say in lower level judicial appointments from the Lord Chancellor to the LCJ. Many will have concluded, like the Lords’ Constitution Committee, that the change will “promote the independence of the judiciary and increase public confidence in judicial appointments”. The LCJ, after all, is said to be in a better position to understand the particular requirements of judicial office and, thus, to decide whether a person selected by the JAC should be appointed to the bench. We are less confident, however, about whether this change is welcome. We have three main concerns.

Diluting the Executive’s Role and Responsibility

One of the assumptions driving the proposal is that there is no longer a legitimate role for the executive in lower level judicial appointments. This assumption is questionable. The involvement of the Lord Chancellor injects a critical measure of democratic legitimacy into the process of selecting judges. Equally significantly, it encourages the Lord Chancellor to take seriously his or her statutory responsibility for the operation of the appointment system as a whole. Moreover, if democratic accountability is not channeled through the Lord Chancellor, will the LCJ account directly to Parliament for the operation of lower level appointments? If so, does this pose a greater threat to judicial independence than the involvement of a government minister?

Even if it is argued that at the lower ranks involving the Lord Chancellor is not needed on grounds of democracy legitimacy, the goal of improving judicial diversity demands continued ministerial involvement. Experience in the UK and in other countries shows that improving diversity does not happen automatically as the composition of the legal profession changes. Rather, it needs political will to drive forward changes, some of which might not be supported by judges.  While we welcome the amendment introduced in the Lords to place the Lord Chancellor and the LCJ under a statutory duty to encourage judicial diversity, an amendment that mirrors the existing duty placed on the JAC, we worry that removing the Lord Chancellor from lower level appointments removes the opportunity for the exercise of political will to promote greater diversity in the judiciary at all levels.

Excessive Judicial Influence

In an important report published last year, Alan Paterson and Chris Paterson charted the level of judicial influence in senior judicial appointments. Similar concerns can be voiced in respect of lower level appointments. There are currently 5 judges on the JAC. Before instructing the JAC to begin a selection exercise the Lord Chancellor must consult with the LCJ. Each selection panel includes a judge. Judges draft the case studies that form an important part of the selection process. They write references for applicants. Finally, as noted above, the JAC consults with the LCJ about the candidate that it intends to recommend to the Lord Chancellor.

In other words, judges are already heavily involved in selecting their own colleagues. Shifting the formal decision-making power for lower tiers to the LCJ represents a significant extension of judicial influence in ways that might ultimately undermine, rather than bolster, public confidence in the judiciary.

A Changed Relationship between the JAC and LCJ

The proposal to transfer the veto power to the LCJ did not consider the implications of the LCJ more frequently refusing to accept recommendations from the JAC. We should perhaps expect more vetoes given that the rationale for the reform is that the LCJ will be better able to arrive at an informed evaluation of the JAC’s recommended candidate.

There might also be other reasons why the LCJ and the JAC could disagree about a recommendation. If, for example, the JAC decided to implement the tie break provisions under s.159 of the Equality Act 2010 to increase diversity, and if a future LCJ objected to this approach, we could expect to see the veto used more frequently. If such a scenario did arise, would the decision of the LCJ be subject to judicial review? If so, who would hear such a challenge? If the LCJ’s decision is not subject to judicial review, how, if at all, could it be challenged? Moreover, would the LCJ be required to give reasons for his or her decision?

These questions suggest that there are potential pitfalls which have not been thought through. It would not be surprising if the JAC sought to avoid them by only making recommendations likely to secure the approval of the LCJ. This then underscores our earlier concern – that judges potentially have too much influence in judicial appointments.

Finally, the LCJ has to date served as a guardian of the independence of the JAC. During its rocky first five years, the JAC came perilously close to being abolished by the Ministry of Justice; it experienced what one insider described as “a near death experience”. At the time when tensions between JAC and the MoJ were at their greatest, the LCJ spoke out publicly in defence of the JAC. He could do so without any potential conflict of interest because his role in the judicial appointments process was relatively limited. If in the future the LCJ can exercise a veto over the decisions of the JAC, it may be much more difficult to serve as a reliable guardian of the JAC.

Kate Malleson (Queen Mary) and Graham Gee (University of Birmingham) are collaborating with Robert Hazell and Patrick O’Brien (Constitution Unit UCL) on an AHRC-funded project on The Politics of Judicial Independence.

 Suggested citation: K. Malleson and G. Gee, ‘Who should have the final say in lower level judicial appointments?’ UK Const. L. Blog (30th January 2013) (available at http://ukconstitutionallaw.org)

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Andrew Le Sueur: Wikipedia on the British constitution

ALeS NYC 2012 bwAs everybody reading this blog will know, Wikipedia is an online, multilingual, free encyclopaedia compiled using Wiki software. What may be less widely known is the process by which articles on Wikipedia are developed. Anybody with access to the Internet and some basic computer skills can create new articles and edit existing ones. Expert knowledge of the topic in hand is not required: this is not a place for dissemination of original research; instead, contributors are expected to cite secondary sources and adopt a neutral point of view (“NPV”). Errors – some made maliciously, others in good faith – abound. The great majority of contributors use noms de plume or lurk behind the anonymity of IP addresses.  It is, however, among the 100 most popular websites in the world. Thanks to Google, it is often the first port of call for people trying to find out about a subject.

The Wikipedia phenomenon has itself become a subject of academic study from a variety of disciplines. Research questions have included whether it is based on “wisdom of crowds” effects (huge numbers of people making large numbers of edits) or driven by “elite” users? How do editors coordinate their contributions? How are rules and procedures created and implemented within the editor community? Why do people spend time editing it?

I want to consider the Wikipedia article “Constitution of the United Kingdom” (to which synonyms such as “British constitution” are directed). This is worth doing for several different reasons. It is probably among the most read pieces of writing on the subject: what we know for sure is that it has been viewed 69220 times in the last 90 days. So far as I can tell, it has been written by amateurs rather than people with a professional or academic interest in the subject matter: as such, it provides a snapshot of a collective effort to capture what is regarded as important about the constitution. I want also to suggest that the quality of the article raises questions about the role of academics and other experts in promoting public understanding of the constitution.

The article’s history and contributors

The first version of the article was started in February 2003, two years after the launch of Wikipedia. During the ensuing 10 years, 564 distinct contributors have developed the article. It was set in motion by an editor known as “Jtdirl”, who describes himself as an Irish “cultural creative” and “postmodern idealist” who subscribes to the view that “This user does not believe Wikipedia takes the expertise and knowledge of academic contributors seriously enough”; but by October 2005, Jtdirl seems to have stopped editing the article, leaving it to others to carry on the work.

Another early editor of the article was “Deus Ex”, who seems to have stopped editing in 2005, explaining “I will not be active in Wikipedia editing for the foreseeable future. I cannot justify spending significant amounts of time on Wikipedia. I am also beginning to become frustrated by the lack of direction and progress – to become a truly reliable encyclopaedia, Wikipedia must have stable versions of important articles verified by qualified experts. … the problem with Wikipedia-in the current set up, it is simply not reliable enough to be considered an encyclopaedia”.

By far the most prolific contributor is “Grover Cleveland”, who to date has made 91 changes to the article. He contributes across a range of subject matter, including US politics and classical music. In all, ten contributors made ten or more “edits”; two appear to be lawyers though not specialists in public law. Several hundred more have made a small number of (often very minor) changes to the article.

Conclusion: the article is the work of non-experts.

Assessing the quality of the article

Wikipedia users are invited to rate articles using a widget at the end of the article. The “Constitution of the United Kingdom” receives relatively high scores as “trustworthy”, “objective”, “complete” and “well-written”. This is a generous assessment.

Any more detailed assessment has to recognise that the article is part of a cascade of linked articles. For example, devolution gets relatively light coverage in the article but there is a separate one on that subject. The article is, in places, historical in its approach though it fails to present a clear chronology of the development of the constitution.

It contains a number of erroneous statements or assertions that are misleading without qualification or further explanation: “Parliament has the power to determine the length of its term.” “By the Constitutional Reform Act 2005 [Parliament] has the power to remove individual judges from office for misconduct”. (Yes, but rather misleading). “However, as part of Parliamentary Sovereignty, Parliament could create new prerogatives if it so wished regardless”. “The Prime Minister is normally a member of the House of Commons.”

The balance of coverage in the article is lop-sided. There is discussion (twice) about the Church of England but the ECHR and Human Rights Act 1998 is relegated to a passing reference in a paragraph towards the end under the heading “Other constitutional reforms”.

The article would not pass a peer review process for an academic journal and nor would it receive a good mark as an undergraduate essay (though I suspect it has been cut and pasted into some over the years). But those, of course, are not fair points of comparison.

Conclusion: the article, like many of those linked to it, could be much better than it currently is.

Promoting public understanding of the UK constitution

Academics and other experts from time to time attempt to promote public understanding of the British constitution. This can be done through books (there are some valuable contributions in the New Oxford Companion to Law (OUP 2008), edited by Peter Cane and Joanne Conaghan; and Hilaire Barnett’s Britain Unwrapped: Government and Constitution Explained (Penguin 2002) would be another example). The cost and lack of immediate access to books, however, put them at a disadvantage in the digital age.

Another avenue is that taken by The Constitution Society, whose website (see here) is its main educational resource: it contains some imaginative and well-designed ways of communicating facts and ideas about the constitution.

What I want to suggest is complementary to these attempts to promote public understanding: that people with expertise on aspects of the British constitution contribute to articles on Wikipedia. A coalition of the willing could, relatively easily, improve and develop the amateur efforts of the past 10 years.

Who will join me? I’ve made a few forays in Wikipedia (always using my real name). I’ve improved Stanley de Smith’s biography. In 2011, I rewrote and expanded the article on “Law of Jersey” and related articles. I made early contributions to the article “Supreme Court of the United Kingdom”. Wikipedia is not a place for preciousness: one’s carefully crafted sentences can be hijacked modified by unknown contributors; irrelevances (to my mind) introduced; some dubious assertions tacked on. But if one accepts that writing for Wikipedia is more like standing on a soapbox addressing a crowd than a contribution to a highly refined academic debate, it’s possible to make it a better read. And that’s the point: people, in their tens of thousands, do read Wikipedia. If those of us with expertise want to reach them, then let’s roll up our sleeves and get stuck in to editing.

 Andrew Le Sueur is co-convenor of the UK Constitutional Law Group, a member of the executive committee of the International Association of Constitutional Law and Professor of Public Law at Queen Mary, University of London.

 Suggested citation: A. Le Sueur ‘Wikipedia on the British constitution’ UK Const. L. Blog (27th January 2013) (available at http://ukconstitutionallaw.org)

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Tom Adams: Royal Consent and Hidden Power

tom-10The requirement of Royal Assent for bills which have passed through our democratic institutions is well known. Those amongst us who favour the constitutional monarch remind others that it is a power only in the symbolic sense: assent has not been refused since the reign of Queen Anne. And those amongst us who prefer our politics not to be confused with genetics comfort ourselves – although sometimes this comfort is not enough – with the reminder that it is a power only in the symbolic sense: assent has not been refused since the reign of Queen Anne.

One point upon which republicans and monarchists might agree is that it is right that both the existence and occasions of exercise of this power are publically known. They might also agree that this is an instance of an important general principle. For, if we are even to begin to engage in sensible debate about the relation between monarchy and constitutional democracy in the 21st Century we must have a good understanding of the extent of the Monarch’s powers – symbolic and real – over the content of our politics. A discussion which takes place in the dark is unlikely to shed much light.

It is with this principle in mind that we should consider the details which have emerged in the past two weeks concerning a quite different political power vested in the Monarch. It is, according to documents recently made public, an established convention in relation to those bills which affect the ‘personal interests’ of the Queen, or the Prince of Wales that the consent of the relevant party  is required before such bills are introduced to Parliament. This is the requirement of Royal Consent, as distinct from the requirement of Royal Assent.

The scope of the requirement is broad and includes, in the case of the Monarch, all bills which affect the prerogative, hereditary revenues, personal property as well as other personal interests of the Queen. The jurisdiction of the Prince is associated with the Duchy of Cornwall. It is narrower in certain respects than that of the Queen, but is considerable nonetheless. The Prince’s approval has been requested in relation to draft bills on matters as diverse as gambling and the Olympics. He has been asked to consent to at least 12 bills in the last two sessions of Parliament. Quite apart from its scope it is worth emphasising that the content of the power is absolutely damning: it is not simply that the relevant bill fails to become law if consent is not given, although this is implied. It is that the bill cannot even be properly debated by our elected politicians.

Royal Consent has not been given to bills on at least three occasions since 1990. The most notable refusal was in relation to the Military Action Against Iraq (Parliamentary Approval) Bill which sought, four years before war was eventually declared, to transfer the power to authorize military strikes in Iraq from the Monarch to Parliament. Debate stalled after the first hearing and, because Royal Consent was not given, the bill was dropped before its second hearing. It is worth noting that aspects of the media mis-described the situation as one in which the bill was not granted Royal Assent.

Indeed, one of the most extraordinary aspects of the whole scenario is that the government has done its best to keep the details hidden: it has aggressively fought a freedom of information request filed by John Kirkhope, a legal scholar, concerning the requirement.  First ordered by the Information Commissioner to reveal the details of the 30 page internal guidance concerning Royal Consent, the Cabinet Office appealed to the information tribunal and lost there too.  This, then, is an aspect of our political landscape the knowledge of which it is thought better that we do not have.

Is there anything to be said in favour of the constitutional situation? Buckingham Palace has made clear that on all occasions where consent has been refused by the Queen that this has been on the advice of the government. The Prince’s spokesperson, by way of contrast, has refused to comment on whether he has ever declined to consent and if so under what conditions.  But even if we are to assume that he too has never refused to consent absent government advice there remain two very good reasons why this knowledge should not placate us.

First, the fact that actual exercises of refusal to consent have taken place on the advice of government does not entail that the requirement has not conferred considerable power on the Royal Family. The extent of the influence which is granted by a political power should be measured not just in terms of its actual use, but also in terms of its potentiality. Even if consent has not actually been refused with regard to a particular bill, the fact that the relevant parties have the capacity to refuse bestows on them significant political influence. Daniel Greenberg, a former Parliamentary Counsel, said the following: “It is something of a nuclear-button option that everybody knows [The Prince of Wales] is not likely to push. But like the nuclear deterrent, the fact that it is there influences negotiations.”

The second point is this: even if we are to assume that the power associated with the consent requirement lies de-facto with the government it remains objectionable, for it amounts to a selective veto over Private Members’ Bills. Consider again the situation surrounding the Military Action Against Iraq (Parliamentary Approval) Bill, a private bill introduced by Tam Dalyell. Here the requirement of consent in relation to the prerogative was used by Tony Blair’s administration so as to ensure that Parliament did not debate the propriety of war power remaining with government. This constitutional anomaly merely cements the already considerable power of government within our constitutional system.

There are times at which debates between monarchists and republicans have been accused of generating too much heat and too little light. This case is different. We are just starting to get light on the situation. We would do well to accompany it with some heat.

Tom Adams is a Hauser Global Fellow at New York University. 

Suggested citation: T. Adams ‘Royal Consent and Hidden Power’ UK Const. L. Blog (26th January 2013) (available at http://ukconstitutionallaw.org)

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Richard Ekins: Rights-consistent interpretation and (reckless) amendment

RichardEkins_profileDiscussion about s 3 of the Human Rights Act 1998 (HRA) tends to focus on the scope of s 3(1).  My interest in this post is in 3(2)’s direction that the section “applies to primary and subordinate legislation whenever enacted”.  I suggest that this decision to extend s 3 to statutes whenever enacted amounted to an uncertain and reckless amendment to the statute book (that is, to all statutes in force at the time the HRA came into effect in October 2000).

What “it is possible to do” under s 3(1) may be quite different in respect of pre and post-HRA statutes.  For statutes enacted after the HRA, the section grounds a strong presumption that Parliament intends to legislate consistently with the ECHR.  For statutes enacted before the HRA, at the time the enacting legislature acted there was no such (strong) presumption; indeed, the legislative act might well predate the ECHR, perhaps by several centuries.

If one presumes that Parliament does not intend to change the law in an unclear fashion, one might reason that in respect of pre-HRA statutes, s 3 directs judges to resolve any open interpretive question in favour of a rights-consistent interpretation, but not otherwise to overturn or change any settled interpretive judgment.  This would be all that it was “possible to do” when the enacting legislature had not acted in light of a strong presumption of conformity to the ECHR.  On this view, enacting s 3 would not change the statute book as it stood at October 2000.  However, the courts have never questioned that Parliament intended s 3 to change the meaning of pre-HRA statutes.  What argument there has been about the temporal scope of s 3 has concerned whether the new meanings its application warrants apply to actions and events taking place before the HRA’s commencement.  The judicial answer, in due course, was that they do not.  It has been common ground throughout the case law that the enactment of s 3 overturns or changes what were otherwise clear, unambiguous meanings prior to the HRA’s commencement.

There were reasons for this strong conclusion.  The section extends to statutes whenever enacted, without any qualification such as “unless the context otherwise demands”.  Qualifications of this kind are common to Interpretation Acts, which apply to statutes whenever enacted but which do not purport to amend them.  An Interpretation Act sets out a partial interpretive regime relevant to every statute, which may overturn unsound interpretive methods (say, literalism) and settle otherwise open questions, but does not purport to change the object of statutory interpretation or to change what statutes have always meant.  Having said this, one might think that in respect of s 3 any such qualification would have been redundant because the section already refers to what may be “possible”, plainly implying that not everything is possible.  Nonetheless, there are strong reasons to conclude that s 3 was intended to change the meaning of pre-HRA statutes.  The point of the HRA was to help bring the United Kingdom into line with the ECHR, understood as a body of international law authoritatively interpreted by Strasbourg, and hence to avoid the embarrassment of Strasbourg challenge.  The legislature may well have intended to change the meanings of pre-HRA statutes by extending the application of s 3 to statutes whenever enacted.  Thus, Parliament acted to amend the statute book to this extent.

It was of course open to Parliament to amend the statute book in this way.  But it was a reckless use of legislative authority.  Parliament in 1998 amended every statute to the extent of its inconsistency with the ECHR, as authoritatively interpreted by Strasbourg, subject to the limits of what was ‘possible’ under s 3(1).  It did not promulgate the law as amended.  Indeed, it did not consider the reasons for each amendment that it made and it did not choose each amendment.  Instead, it chose an indistinct set of amendments, the content of which was not open to it, considered by it, or chosen by it.  The legislators may have assumed that the United Kingdom was largely in conformity to the ECHR, so that very few legal changes would be required.  Any such assumption was irresponsible.  The legislature should grasp the content of the legal changes that it makes before it makes them.  To do otherwise is to fail to exercise its authority in response to reasons.  It is hard to imagine a less responsible legal act then to amend every statute by means of an opaque formula (the obscure s 3(1) taken together with the vague ECHR and often unstable Strasbourg jurisprudence) when one has no way of knowing, and has shown no inclination to discover, precisely how one is changing the law.

This analysis is relevant to the question of how Parliament should go about amending or repealing s 3.  If Parliament were to decide that s 3 (as interpreted) is unsound – because inimical to the rule of law say – it might choose to repeal the provision outright or to replace it with an alternative formulation.  The repeal of s 3 would revive the interpretation of pre-HRA statutes, which the enactment of s 3 had otherwise displaced.  This would be a relatively clear change and it would be open to Parliament to consider the law it would be acting to make by such an action and to choose it responsibly.  Still, for the choice to be responsible it would have to be preceded by careful deliberation about the substance of the relevant changes, for there might be good reason, in some or many cases, to preserve the post-2000 interpretation, notwithstanding the abrogation of s 3.  If such were the choice then that lawmaking choice ought to be given clear statutory effect, which would require detailed textual amendment on point.  Thus, repealing s 3 would be no simple legislative act: the rule of law would call for careful, extended thought and then precise, comprehensive action.

The repeal might be taken also to change the meaning of post-HRA statutes, removing the interpretive direction that grounds the (often surprising) interpretations of those statutes.  Alternatively, one might reason that those interpretations were grounded in inference about the intent of the enacting legislature, such that repeal of s 3 ought not to undermine that inference in respect of statutes already enacted (plainly it would remove the grounds of the inference for subsequent statutes).  Any repeal ought to settle this point clearly.

Amending s 3 to introduce some new formulation (say the choice of words in s 32 of the Charter of Rights and Responsiblities Act 2006 (Vic)) might have the same effect as outright repeal (it would depend on the terms of the new formulation) or it might substitute for s 3 some intermediary, alternative rule.  In the latter case, the amendment would change the existing statute book in ways that would be difficult to predict.  This would go the wisdom of amendment rather than repeal, for it may be that the legal consequences of the former are too opaque to undertake responsibly.  Also, at the very least and in sharp contrast to the enactment of the HRA itself, in making any such change Parliament ought to enact a detailed transitional scheme to avoid (or at least minimise) confusion.

Interestingly, s 6 of the New Zealand Bill of Rights Act 1990 (NZBORA), which was in some ways the precursor to s 3 of the HRA, is silent on the question of whether it applies to statutes enacted before the NZBORA.  Yet the courts have never questioned that it does so apply and indeed in some cases, notwithstanding their rejection of the relevant HRA jurisprudence, have been open to understanding the NZBORA’s enactment to amend those past statutes – an amendment which is, as I say, imprecise, unclear and irresponsible.  Contrast s 4 of the Interpretation Act 1999 (NZ), which provides explicitly that the Act applies to enactments whenever enacted unless the enactment provides otherwise or its context requires a different interpretation – a formulation which is intended to disavow any intention to change the law by changing (rather: restating) some interpretive “rules”.  The Interpretation Act acknowledges what the NZBORA and HRA do not, namely that acting to change the meaning of a statute is to amend it, and amendment should not be haphazard.

Richard Ekins is a Fellow of St John’s College, Oxford.

Suggested citation: R. Ekins ‘Rights-consistent interpretation and (reckless) amendment’ UK Const. L. Blog (24th January 2013) (available at http://ukconstitutionallaw.org)

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Events of interest to UKCLG members and blog readers …

  1. Statute Law Society lecture: Jonathan Swift QC, ‘Constitutional Statutes: Construction and Legal Adjudication’. Monday 28 January 2013, 6-7 pm, Institute of Advanced Legal Studies, London.
  2. European and National Constitutional Law Closing Conference: ‘The European Constitution is best perceived as a composite Constitution, comprising constitutional rules and principles developed at European level, complemented by (common) national constitutional rules and principles as well as those from other sources such as the ECHR and international law. Crucially, European as well as national law are involved in defining a European constitutional law’. The ERC-funded European and National Constitutional Law (EuNaCon) project (2008 – 13) was set up to better understand and improve the body of knowledge on the national component of Europe’s composite Constitution. As such, national constitutional traditions and principles have been analysed and compared in four key areas of constitutional law, and the insights obtained have been used to formulate a better understanding of Europe’s composite Constitution. EuNaCon marks its successful conclusion with a Closing Conference that takes place between 20-22 February 2013 in Maastricht, The Netherlands.

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Ronan McCrea: Strasbourg Judgement in Eweida and Others v United Kingdom

Ronan%20McCrea_07The European Court of Human Rights has issued its decision in the highly anticipated case of Eweida and Others v United Kingdom. This ruling (actually four separate cases decided jointly) was billed as the most significant case on freedom of conscience and religion in many years. It raised important issues in relation to the right to religious expression in the workplace and the reconciliation of freedom of conscience and religion with other rights, most notably freedom from discrimination.

The Court was faced with four applicants Christian applicants all of whom felt that workplace regulations prevented them from expressing or acting in accordance with their faith.

The first, Nadia Eweida, was prevented from wearing a cross over her uniform by her employer British Airways (it subsequently changed its policy to permit employees to wear crosses). The second, Shirley Chaplin, was a nurse dealing with dementia patients prevented by her employer from wearing a cross on a chain on grounds that it represented a risk of infection and an injury risk should patients grab it (her employer offered to allow her to affix a cross to her nurse’s badge but she rejected this offer as badges must be removed during certain tasks).

The third, Gary MacFarlane, was sacked as a sex therapist by RELATE, a counseling charity, as he failed to abide by a non-discrimination policy requiring him to give counseling to couples irrespective of sexual orientation. The fourth, Lillian Ladele was a civil registrar disciplined by Islington Council on the basis that her unwillingness to register civil partnerships breached its non-discrimination policy.

The judgement is certainly significant and represents a potentially important development in the approach of the Court to Article 9. The lion’s share of publicity has gone the ruling in relation to Ms. Eweida the only one of the four to win her case. However, her win was based on rather narrow factual questions and may be significantly less important than the rejection of the claims of MacFarlane and, particularly, Ladele. The importance of the ruling rests on three main points.

Anti-Discrimination Laws and Freedom of Conscience

The core of both the claims of both MacFarlane and Ladele was that, provided that no individual was actually deprived of a service, it was disproportionate and discriminatory for employers to require employees to provide services on a non-discriminatory basis when doing so obliged such employees to go against their religious beliefs in relation to the sinfulness of homosexual conduct.

The Court did not agree. It found that in both Mr. MacFarlane’s and Ms. Ladele’s cases the employer’s policy “aimed to secure the rights of others which are also protected under the Convention”. It held that the UK was entitled to a wide margin of appreciation in reconciling clashing rights and their claims of a breach of the Convention was not made out.

This is surely correct. Discriminatory acts have a moral significance beyond the deprivation of the relevant service. No-one would say that Rosa Parks suffered no harm if there had been a second bus company in Montgomery Alabama that she could have used and which had no discriminatory seating arrangements. Neither would a registrar who regarded inter-racial marriage as sinful have received much support for a claim to be permitted not to register such unions. We rightly perceive that the dignity of individuals can be compromised by acts of discrimination even if they are not denied a particular service. It would have made a mockery of the idea of the margin of appreciation for the Court to have decreed that, in drawing up anti-discrimination norms, States are prevented from having regard this serious harm.

Moreover, one cannot selectively grant religious individuals exemptions from anti-discrimination norms while denying them to those whose conscience claims arise from non-religious sources. By invoking the margin of appreciation the Court avoided opening a pandora’s box and rightly left it to national legislators to resolve these delicate matters.

Resignation as a Guarantee of Religious Freedom

The judgement does signal a significant change is in relation to the right to adhere to one’s religious beliefs at work. In previous cases, the Strasbourg institutions indicated that where a clash between one’s religious duties and one’s the workplace duties arose, religious freedom was sufficiently protected by the right to resign and that work-related restrictions on religious practices (e.g, being required to work on the Sabbath), did not amount to an interference with religious freedom.

Perhaps influenced by high levels of unemployment in the current crisis, the Court appears to have changed its approach. It now feels that “the better approach would be to weigh [the possibility of changing job] in the overall balance when considering whether the restriction [of freedom of religion] was proportionate.” This brings the Court’s approach to freedom of religion in the workplace into line with its approach to the protection of rights such as privacy and free expression.

Although this new approach is more protective of the religious freedom of workers, it may not bring about enormous changes. EU law already requires Member States to justify any workplace arrangements that place those with a particular faith at a disadvantage including those that are generally applicable and apparently neutral. Moreover, the Court has shown a willingness to defer to the assessment of employers in relation to what the workplace actually requires. As noted above, it found that employers are entitled to require religious employees to abide by non-discrimination policies and in  case of Shirley Chaplin, it deferred to the assessment of her employers in relation to the infection and safety risks posed by her necklace noting “hospital managers were better placed to make decisions about clinical safety than a court, particularly an international court which has heard no direct evidence”. Therefore, while the Court’s approach has changed, the overall impact may be limited.

Significance of Ms. Eweida’s Win

Media coverage has focused on the finding in favour of Ms. Eweida whose litigation in the UK courts generated significant attention. The Court found that her employer’s uniform policy pursued a legitimate aim, the desire to project a certain corporate image. However, in the light of various factors such as the fact that employees were allowed to wear symbols of other religions such as turbans and hijabs, the fact that the cross was discreet and the lack of evidence of impact on her employer’s reputation, the national courts had given “too much weight” to the employer’s interests. The Court also used the fact that British Airways had amended its policy to permit crosses to confirm that the restriction was disproportionate as this meant that “the earlier prohibition was not of crucial importance”.

Ms. Eweida’s victory does underscore the fact that the Court no longer sees the right to resign as sufficient protection for religious freedom. Its fact-specific nature means that it is difficult to draw wider conclusions. It is unclear, for instance, whether a more general ban on all religious symbols would have made it easier for the employer to justify their restriction. Joshua Rozenberg wrote that the judgement seems “convenient” for the Court. It does seem politically astute to find in favour of the applicant whose case has the fewest general implications and to invoke the margin of appreciation in relation to the other three.

That said, there are some worrying features of the facts in this ruling. Ms. Eweida initially accepted a duty to conceal her cross. When she changed her mind and launched a grievance procedure against her employer she did not wait for her complaint to be investigated but rather turned up for work in violation of its uniform policy. As the dissent of Judge Bratza (the British judge) noted, BA was rather accommodating towards her and offered her a role without direct customer contact and with no uniform requirement for the duration of the investigation of her complaint. Ms. Eweida refused this solution. Once BA had investigated her complaint, it changed the rules to allow her to wear her cross. It seems remarkable that such a sequence of events can be seen to have resulted in a violation The Court acknowledged in all four cases that employers are dealing with a delicate balancing of rights. In such circumstances do employers not have the right to some time to look into requests for modification of uniforms? Is it reasonable of the Court to use the fact that BA changed its uniform policy once it had considered the issue to find a violation from the fact that it did not change the policy before considering whether accommodation was compatible with its other goals?

Dissents in Ladele

It would be remiss not to note the extremely intemperate and disturbingly worded dissent of Judges Vucinic and De Gaetano who argued that the Court should have found in favour of Ms. Ladele. Interestingly, they distinguish freedom of conscience from the freedom to follow religious practices (such as diet clothing etc.) and argue that free conscience is not subject to limitations that Article 9(2) allows in relation to manifestation of religious belief.  Without explicitly saying so, they also base their approach on the idea that discrimination can do harm beyond deprivation of service.  It would have been useful for them to make this clearer but this is not the most notable failing in their dissent. More seriously, their judgement uses language that is notable for its intemperate nature and hostility to the very idea of gay equality. They describe the events leading to Ms. Ladele’s dismissal not as a difficult issue of clashing fundamental rights but as “a combination of back-stabbing by her colleagues and the blinkered political correctness of the Borough of Islington (which clearly favoured “gay rights” over fundamental human rights)”. This is quite a shocking sentence from judges charged with interpreting Europe’s human rights charter. Gay rights are sufficiently alien to these judges that they feel the need to place the term in inverted commas. More importantly, gay rights are directly contrasted with what the judges call “fundamental human rights”. It is disturbing that the Strasbourg Court whose rulings have such a proud record in relation to ending the criminalization of homosexuality should contain judges who seem so hostile to the idea that the rights of gay people could be considered fundamental human rights.

Conclusion

These decisions herald significant change in the Court’s Article 9 jurisprudence. The idea that the right to resign sufficiently protects religious freedom in the workplace has been abandoned and in the future Strasbourg will require employers to show that policies that impinge on religious freedom are justified. The practical effect of this is likely to be limited as EU law already provided such a duty. The Court has affirmed that States have wide discretion in reconciling rights to freedom of conscience and religion on one hand and freedom from discrimination on the other. In doing so it has confirmed that States are entitled to take account of the moral significance of discrimination beyond deprivation of a good or service. Such an outcome was always likely. The reaction to the Chamber decision in Lautsi v Italy showed just how dangerous it can be for a European Court to weigh in on controversial matters of faith and identity. Rapid change in social mores means that what was recently the majority view on matters of gender and sexual orientation are now minority positions. Such rapid change was always likely to produce political controversy. It would have been most unwise for an international court such as Strasbourg to seek to impose a European level solution to such problems.

Ronan McCrea is a Lecturer in Law at University College London.  He acted as co-counsel for the National Secular Society in this case.

Suggested citation: R. McCrea, ‘Strasbourg Judgement in Eweida and Others v United Kingdom’ UK Const. L. Blog (16th January 2013) (available at http://ukconstitutionallaw.org)

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Varda Bondy and Maurice Sunkin: Judicial Review Reform: Who is afraid of judicial review? Debunking the myths of growth and abuse.

The Government claims that its proposals to restrict access to judicial review are based on evidence that growth in the use of judicial review has been fuelled by abuse of the system.  It is suggested that judicial review has become an impediment to government policy and economic progress and that reform is needed ‘to tackle red tape, promote growth and stimulate economic recovery’.  The government’s proposals are contained in a MoJ consultation paper published on 13 December 2012. The reforms are said to be ‘simple and proportionate’, and capable of being introduced ‘quickly’.   The consultation closes on 24 January.

The following comments are based largely on empirical work undertaken by the University of Essex and the Public Law Project in a series of studies in recent years, including The Dynamics of Judicial Review Litigation: The Resolution of Public Law Challenges before final hearing; Bondy and Sunkin PLP 2009 (The Dynamics of JR report), and their current Nuffield funded research on the effect and value of judicial review (due to be published Summer 2013).  This body of work has generated what is probably the most comprehensive independent information on the use and impact of judicial review in England and Wales in recent years.

This blog does not set out a detailed response to the consultation.  Its aim is to question the evidence-base for the proposed reforms and to propose that if the government is genuinely concerned to relieve pressure on the courts and hard-pressed public bodies, these reforms are not the way to go and may well have the reverse effect. The Public Law Project will submit a full response to the consultation which will be available on its website.

Myth: there has been a significant increase in the number of JR challenges

We are told by the MoJ that, “There has been a significant growth in the use of JR to challenge the decisions of public bodies. In 1974, there were 160 applications for JR, by 1998 this had risen to over 4,500, and by 2011 had reached over 11,000.”.

Over the past few weeks these headline figures have attracted a good deal of attention and several points are now clear. The most important is that these figures alone provide a potentially grossly misleading impression of the degree to which government has been challenged in the courts.

First, comparisons with the use of JR as far back as 1974 are almost totally meaningless, not least because in the world before O’Reilly v Mackman [1983] 2 AC 237 claimants did not need to use JR in public law matters, and the number of challenges to the legality of government decisions brought by way of ordinary civil proceedings was (and remains) unknown.  We simply do not know how often government was challenged in the courts before the 1980s in ordinary proceedings and we still don’t have data on this.

Second, the increase in the scale of JR litigation is substantially attributable to immigration and asylum cases. This is recognised by the government, and in any event this is not an expressly targeted area for this round of reforms. Immigration and asylum challenges have been the subject of numerous statutory and procedural changes in recent years. Most such challenges have already been transferred to the First-tier Tribunal (Immigration and Asylum Chamber), a move which is expected to reduce significantly the volume of JRs in the Administrative Court. Given these changes, it could be misleading to rely on data relating to immigration/asylum JRs in order to justify reforms to the JR system as a whole.

Third, and following on from the above point: it is now widely acknowledged that once immigration and asylum claims are placed to one side, there has been little change in the volume of JR claims over the last 10 years or so. Since the mid 1990s the volume of non-immigration/asylum JRs has remained fairly stable at just over the 2,000 per annum mark. This is evidenced also by the official statistics as is clearly shown in the Dixon and Hood graph. As Harlow and Rawlings remind us, these numbers are ‘infinitesimal’ when compared with the scale of government decision making (Harlow & Rawlings, Law and Administration, p 712).

No one knows how many public decisions are being made and we therefore cannot tell whether or not there has been a change (let alone any increase) in JR activity relative to the scale of government decision making over past decades.  Nonetheless, it is clear that, beyond immigration and asylum, there has been no radical growth in the use of JR, and quite possibly no increase at all.

For many informed observers, it is not the growth in JR that is surprising and disconcerting.  It is that beyond immigration, JR has not grown more, despite factors such as the enactment of the Human Rights Act 1998 and the general heightened profile of the law and courts.

Myth: JR is an impediment to economic growth

The government is concerned about the adverse impact of the use of JR on public finances and development projects.  The consultation says  that JR ’ … comes at a substantial cost to public finances, not just the effort of defending the legal proceedings, but also the additional costs incurred as a result of the delays to the services affected. In certain types of case, in particular those involving large planning developments or constructions where significant sums may be at stake, any delays can have an impact on the costs of the project’ (para 34).

It would be interesting to see what are the ‘substantial costs’ generated by JR litigation, or more specifically on allegedly frivolous JR litigation. As far as we are aware no comprehensive information on this is available.  Even the much more straightforward question of determining how much JR activity directly or indirectly relates to economic activity is extremely difficult to answer on the basis of our current knowledge.

Certainly, in order to determine how much JR litigation is likely to be economically important we need to look behind the official statistics relied upon by the government because the official statistics do not provide detailed figures on the types of JR claims brought.  Were we to look behind the official statistics to attempt to discern the number of ‘economically relevant’ claims we would almost certainly find (assuming we could identify them) that these claims constitute only a small proportion of the caseload.

Judicial review claims cover a wide variety of subject matter, including  housing, education, community care, prisons, police, mental health, to name but a few. They are brought against a wide range of public authorities including central government departments, local authorities , courts, PCTs, the police, many different prisons, the GMC, ombudsman and so on. A high proportion of claims concern local authority services and are likely to have been brought by disadvantaged and vulnerable claimants.  Given the range of issues litigated, it is not surprising that relatively small numbers of claims concern particular types of issue or affect particular types of public body.

Very few public authorities are challenged more than a handful of times a year. Research on JR litigation against local authorities over the six years 2000-2005 inclusive, for instance, showed that over that period 85 per cent of local authorities attracted no more than one or two challenges per annum (Maurice Sunkin et al Mapping the use of Judicial Review to Challenge Local Authorities in England and Wales (2007) Public Law, 545, 550).  Moreover, over half of the challenges to local authority decisions concerned housing related issues, including homelessness, (a factor highlighting the importance of JR to the most disadvantaged).

Aside from local authorities, the main other targets of JR are the Secretary of State for Justice, the Secretary of State for the Home Department, the Parole Board and Prison Governors.  Few other central government departments are challenged more than rarely.

Planning JRs are specifically referred to by the government as being of concern, having potential adverse effects on economic development.  A recent parliamentary question revealed that between 1 January and 31 November 2012 there were 169 applications related to planning.

The above figures relate to claims for permission. However, given that one of the main concerns of the government is delay, the cases most worrying are likely to be those that go to final hearing rather than those that proceed no further than the permission stage.  In our current study of JR we concentrate on this class of case. Having recorded all reported final JRs for 2011 we found 30 planning JRs that went to final hearing, of which only six were brought against central government.  Some of these may have had economic ramifications, but this small number hardly justifies restricting access to JR across the board.

Other planning matters will have been litigated by way of the specialised planning appeal system, but these are not JR claims and reform of the JR process would not directly affect these.  Moreover, reforms designed to reduce the number of ‘hopeless‘ claims is unlikely to have much effect on the quantitatively few (but qualitatively important) planning matters that will still end up in the Administrative  Court.

These data altogether do not paint a picture of a government being overwhelmed by JRs, nor do they support a credible claim that JR presents a significant impediment to economic progress.

Myth: there is widespread abuse of the JR process

The consultation document says  that  ‘… the Judicial Review process may in some cases be subject to abuses, for example, used as a delaying tactic’ (para 2).

That some abuse occurs is widely acknowledged and the judiciary is alive to its risks and have been astute in developing techniques – especially the use of costs orders – to penalise abuse where it occurs (see e.g. R(on the application of Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin)).

What is the evidence that abuse is widespread and justifies reforms to the process?  The government finds the evidence in the judicial statistics, which apparently show that while there has been ‘significant growth’ in the use of JR only a ‘small proportion of cases … stand any reasonable prospect of success’.  ‘In the majority of applications considered by the courts, permission to bring Judicial Review proceedings is refused. Of the 7,600 applications for permission considered by the Court in 2011, only around one in six (or 1,200) was granted. Of the applications which were granted permission, 300 were granted following an oral renewal (out of around 2,000 renewed applications that year)’ (para 31).  The inference is that five sixths of claimants abuse the process by knowingly bringing unmeritorious claims. The government draws this inference by looking at the 7,600 claims of all categories that were considered by a judge for permission, of which ‘only’ 1,200 were granted permission.  However, as explained below, the official statistics provide a very dubious basis for drawing the inference that only one sixth of claims for JR have merit.

The official statistics provide a snapshot of the caseload in a year and the number of permission decisions made in the year. The decisions made in any one year do not necessarily relate to the claims brought in that year, but may relate to claims brought in a previous year.  Additionally, the Court periodically adopts a strategy of clearing backlogs in certain types of case, which can artificially inflate the statistics regarding numbers of decisions. So, for example, in 2001 the Official Statistics showed there to be more permission decisions recorded than there were claims filed.

Thus we cannot use the official statistics as anything more than a very rough and ready way of determining how claims in particular years fare.  For an analysis and explanation of trends in the permission grant and failure rates since the mid 1990s see, Bondy and Sunkin, ‘Accessing Judicial Review (2008) Public Law 647.

The official statistics have a number of other limitations as well.

For instance, the government’s analysis leaves out of the equation the 3,600 JRs that seem to have disappeared between being issued and the permission stage (11,200 less 7,600). The disappeared cases are significant and we simply can’t tell from the official figures what happened in relation to these claims, which appear to make up 32 per cent of the 11,200 issued claims.

As it happens this proportion is consistent with the research Dynamics of Judicial Review findings showing that 34 per cent of JR claims are withdrawn after being issued but prior to being considered by a judge for permission.  We found that they are usually withdrawn following a settlement in favour of the claimant.  That figure is worth holding on to and we shall return to it in a moment.

The official statistics are divided into three categories: immigration/asylum, criminal and other i.e. civil JRs excluding immigration/asylum. As neither immigration/asylum, nor criminal JRs are at issue here, let’s examine the figures for civil JRs which include all other categories such as housing, education, community care, planning etc. The statistics tell us that in 2011 2,036 civil JRs cases were considered for permission of which 1,509 (74%) were refused and 527 (26%) were granted. This is a permission success rate of more than one in four and not one in six as presented in the consultation document

Now let’s go back to the cases that settled prior to permission. Success and failure cannot be measured solely by examining permission decisions.  We have just mentioned that over a third of claims are likely to be settled prior to permission, usually in the claimant’s favour. When this is factored into an assessment of outcomes, the actual success rate of claims becomes significantly higher than one in four.  In short, the one in six success rate at the permission stage is misleading and significantly exaggerates the actual failure rate of claims.

In fact, the success rate may be significantly higher. When we look, for instance, at the success rate of permission claims that are dealt with at oral hearings in open court as opposed to by a judge on the papers alone, we find that over twice as many oral claims are granted permission as are paper claims. In our sample of cases for the Dynamics of Judicial Review report, the success rate of oral only permissions was 62 per cent.

Is there any other evidence of abuse? When we examined the comments made by judges refusing permission we found that it was relatively unusual for judges to state that claims had been refused because they were hopeless or totally without merit. In our research we found, for instance,  that in 104 civil claims (excluding immigration and asylum) where judges gave observations, only 12 cases were said to be hopeless or without merit or perverse. One such case was successfully renewed by a litigant in person and went on to succeed at the final hearing (Leyton v Wigan CC (Co 7428)).

In short, our analysis suggests that the government is overestimating the failure rate at the permission stage, especially in civil JRs, and is overestimating the degree to which the system is being abused by claims that lack merit. Where abuse occurs it is strongly arguable that effective mechanisms already exist and that general reforms restricting the use of JR is unnecessary.

Time limits

A key element in the government’s strategy is the proposed reduction in the time limit for seeking JR, at least in some claims.  It is easy to see why reducing time limits might appear an attractive and superficially easy option for the government. The current obligation to bring a claim ‘promptly and in any case within three months’ is already very tight, especially when  contrasted with general limitation periods. However, it is longer than the six weeks limit for bringing statutory appeals in planning cases. The real question for the moment is whether shortening the JR limitation period will help or hinder the government’s aim of eliminating abuse and  saving cost and time.

One of the lessons of our research is that procedural changes can affect the dynamics of litigation in ways that are not always obvious or predictable. Another is that the judicial review process needs to be understood holistically and changes to one aspect will affect other elements of the process. There are, for instance, sound reasons for fearing that shortening the time period for claims may both increase the proportion of weak claims and impose additional costs on public authorities. We have already noted that over a third of claims filed settle prior to permission, usually in the claimant’s favour. Our research shows that this usually occurs after the defendant concedes the substance of the claim having been prompted to reassess the claim once the proceedings are commenced and an Acknowledgment of Service has to be filed.  At this point lawyers often become more centrally engaged in the matter.  Many solicitors acting for claimants and for defendants told us that had more time been available for negotiation their case may have been settled out of court, but proceedings had to be issued in order to meet the time limit.  Shorter time limits are likely to increase pressure on claimants to file and reduce space for settlement. As well as potentially increasing the possibility of weak and premature claims, shortened time limits may also increase the burden on public authorities who will be obliged to respond to more premature claims. This would not be in the interests of either claimants or public authorities. It would certainly be unfortunate if reforms here were to reduce opportunity for informed settlement and there is a strong argument that more attention should be given for increasing incentives upon public authorities to look again at disputed decisions with a view to securing settlement out of court.

So to conclude

Other claims made in the consultation may be disputed in the light of the evidence, including the implication that the overall impact of JR on public decision making is negative.

On this, the existing evidence is very patchy. The issue was recently considered by the Law Commission (see Administrative Redress: Public Bodies and the Citizen, May 2010, HC 6, esp Part 1V).  While some work suggests that the threat of legal challenge may lead to defensive behaviour, there is also evidence that judicial review litigation may act as a driver to improve public services and the quality of government. See especially, L. Platt, M Sunkin and K Calvo, ‘Judicial Review as an incentive to change in local authorities in England and Wales’ (2010) Journal of Public Administration Research and Theory 20:i243-i260 .

Here, we have high-lighted some of the weaknesses in the government’s evidence base in relation to the scale of litigation and abuse. Reforming the process is a major step that may have unintended consequences that could increase burdens on public bodies and the courts without achieving the ends that the government hopes. Restrictions on access may also have a disproportionate adverse affect on claimants (often the most vulnerable) with genuine legal disputes with public bodies especially in relation to public service provision. The weakness of the evidence base for these reforms is startling and worrying and we can only hope that the government will take the consultation responses seriously and think again before introducing reforms that will undermine the integrity of the JR process without achieving the government’s desired aims.

Varda Bondy is Director of Research, Public Law Project

Maurice Sunkin is Professor of Public Law and Socio Legal Studies, University of Essex

Suggested citation: V. Bondy and M. Sunkin, ‘Judicial Review Reform: Who is afraid of judicial review? Debunking the myths of growth and abuse.’ UK Const. L. Blog (10th January 2013) (available at http://ukconstitutionallaw.org)

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