Monthly Archives: February 2013

Carol Harlow: What price inquiries?

charlowTwenty-five years ago, when the Justice-All Souls Committee published its review of English administrative law it asserted that, over the last forty years, inquiries had ‘been appropriated to the purposes of land use control to such an extent that the planning inquiry has become the typical inquiry’ (Administrative Justice – Some Necessary Reforms (Oxford: Clarendon Press, 1988 at 262). 49 of the 64 pages allocated to inquiries were duly devoted to planning inquiries, the rest being lumped together under the rubric of ‘Ad Hoc Inquiries’. Other than to remark that public inquiries might leave some individuals ‘with a sense of dissatisfaction’ the Committee had little to say about them. The same could hardly be the case today. Routine planning inquiries form around 5% of the Planning Inspectorate’s current workload, the majority of applications being decided on the papers, while the costly and contentious ‘Big Planning Inquiry’ has been replaced by an Infrastructure Planning Commission in 2008, which in turn had its functions transferred to the Planning Inspectorate, now an independent agency, by the Localism Act 2011. On the other hand, public space is increasingly cluttered with the reports of ‘ad hoc’ public inquiries, raising the question what purpose do they really serve?

Writing in 1992, embittered by his treatment by Lord Justice Scott during the Inquiry into connivance of ministers and public servants in the illegal export of arms to Iraq (HC 115 (1995/6), Lord Howe suggested that a public inquiry might serve six rather disparate objectives:

  1. To establish the facts
  2. To learn from events
  3. To provide catharsis for ‘stakeholders’
  4. To reassure the public
  5. To make people and organisations accountable
  6. To serve the political interests of government.

 (G. Howe, ‘The Management of Public Inquiries’ (1999) 70 Pol. Quarterly 294)

Lord Howe’s grudge against Scott lay with his preference for inquisitorial procedure; Scott refused to allow legal representation of witnesses at the inquiry on the grounds of length and prolixity (though he did give some warning of the questions he would be likely to ask and promised to notify in advance anyone who would be criticised in the report). The dissatisfaction of public lawyers more generally lay precisely in the ‘length and prolixity’ of the proceedings. Looking back, it seems that the only interests served by the Scott Inquiry were those of the government. An inquiry that took three years and cost around £7 million – a high price for even a 5-volume Report, – ended with a confidence motion calling for the resignation of two ministers, won by the Major Government by just two votes.

Was this the shape of things to come? The Saville Inquiry set up by Tony Blair in 1998 to establish the truth about ‘Bloody Sunday’ (30 January 1972) when the British army opened fire on civil rights protesters in Londonderry, received 2,500 witness statements and compiled some 160 volumes of evidence, 13 volumes of photographs, 121 audiotapes and 110 videotapes, all of which had to be photocopied and sent to representatives of the ‘interested parties’. Its procedures were twice judicially reviewed. It did establish the facts but at what a cost; when the ten-volume report was published twelve years later (The Bloody Sunday Inquiry ) it had cost the taxpayer £195 million. It could, I suppose, be argued that on this occasion the delays were functional; they created space for a political settlement to be negotiated in the shadow of the pending report. Unsurprisingly, the report was welcomed by relatives of the victims but was less well received by the victims of IRA violence. It is indeed unlikely that it caused any of its readers to change their position and much the same is likely to be true of the Chilcot Inquiry into the Iraq War when finally it reports.

It was partly in reaction to the mounting costs of Saville that the Government embarked on new legislation – described as a consolidation measure to replace the seldom-used Tribunals of Inquiry Act 1921 – which became the Inquiries Act 2005.  The Bill was hotly opposed on the ground that it bundled up too much power in ministers, including the power to suspend or wind up an inquiry; to prevent disclosure or publication of any evidence or documents given; and to bar the attendance of witnesses. It was feared that these powers would be used to prevent disclosure of material concerning the security services, most notably in a raft of inquiries under way into the Northern Ireland Troubles, which could be transferred into an inquiry under the Act – as did in fact occur with the Wright Inquiry and Inquiry into the death of Robert Hamill, originally set up under the Police (Northern Ireland) Act 1998 (costs around £33 million).

Inquiry costs

It has to be said that the Act has done little to cut the cost of public inquiries. According to a Post-legislative Assessment of the Inquiries Act conducted in 2010, three of the 12 inquiries held under the 2005 Act by 2010 had cost over £10 million: the Baha Mousa Inquiry cost £13 million and the Inquiry into the murder of Billy Wright in the Maze Prison cost over £30 million and took 5 years to complete.). Although the inquiry concluded that Wright’s death was due to the negligence of prison officers, his father, who had campaigned over many years for the inquiry, called it proof of ‘clear and unequivocal collusion’ – another example of incomplete catharsis. The problem here is that the general public is inclined to interpret accountability in terms of the number of heads that roll and is probably unaware that the Inquiries Act 2005 provides that an inquiry ‘is not to rule on, and has no power to determine, any person’s civil or criminal liability’, while the Coroners and Justice Act 2009 now bars any verdict that names individuals or points to their guilt. Such costs, only justifiable if the inquiries came to a clear and unequivocal conclusion, bear comparison with the escalating costs of prosecutions in serious fraud cases, said to prevent justice from being done (See Fraud Advisory Panel, Tackling the Crisis in The Prosecution of Serious Fraud.).

No doubt it was for cost-cutting motives that the inquiry into the murder of lawyer Pat Finucane in Northern Ireland in 1989 by Sir Desmond de Silva QC became a review of the evidence of two earlier inquiries held respectively by Lord Stevens and the Canadian justice, Judge Cory (Report of the Patrick Finucane Review by The Rt Hon Sir Desmond de Silva QC, HC 802 (2012/13). This procedure, which meant that he had no statutory powers of compulsion, was in the event justified by the fact that Sir Desmond was in no way inhibited from uncovering ‘new and significant information that was not available to Sir John Stevens or Justice Cory’; from publishing this material; and from coming up with the challenging conclusion that ‘a series of positive actions by employees of the State actively furthered and facilitated [Finucane’s] murder and that, in the aftermath of the murder, there was a relentless attempt to defeat the ends of justice’ (Report at [115]). But this conclusion, described by the Prime Minister, Davis Cameron as revealing ‘shocking state collusion’, failed once again to satisfy Finucane’s widow who, supported by Ed Miliband and Amnesty International, called the review ‘a sham, a whitewash and a confidence trick’ and demanded a full and independent inquiry (The Huffington Post (UK), 20 February 2013). In his remarks under ‘lessons for the future’ – which he had not been asked expressly to address – Sir Desmond wryly commented [113]: ‘Perhaps the most obvious and significant lesson of all, however, is that it should not take over 23 years to properly examine, unravel and publish a full account of collusion in the murder of a solicitor that took place in the United Kingdom’.

Overlap and underkill

This highlights a further deficiency of the public inquiry: the overlapping machinery for accountability and the number of disparate and piecemeal processes that are generated and the failure to provide ‘joined up justice’. The trouble is that the 2005 Act was not exclusive; it repealed some of the statutory powers to order inquiries and provided for a general code of procedure (The Inquiry Rules 2006, SI 2006/1838) but did not exhaust the powers of ministers and indeed anyone else who wishes to do so, to set up an inquiry. The prize (if that is the right word) should be awarded to the Hillsborough Disaster Inquiries into the death of 96 football supporters and injury of hundreds more at a match in Hillsborough stadium on 15 April 1989. By 2009, this had attracted: two internal police investigations into the conduct of South Yorkshire Police; an inquiry by Lord Justice Taylor, published in two parts in 1989 and 1990; an investigation by the Health and Safety Executive; a two-stage coroner’s inquest; an unsuccessful private prosecution following the DPP’s decision not to prosecute; a paper review of the evidence by Lord Justice Stuart Smith; and two civil actions, which caused outrage when police officers succeeded in claims for damages when victims’ relatives did not (Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310; Frost v Chief Constable of South Yorkshire [1999] 2 AC 455). It should be noted that the two Taylor Reports had blamed the police, while Lord Justice Stuart Smith, although castigated by the Hillsborough relatives, had picked up the fact that the police had rewritten many of the witness statements. Why did nothing happen? (Pause for rueful reflection).

Only when Andy Burnham, then Health Secretary, waived the 30-year non-disclosure rule on public records in 2009 and Home Secretary Jack Straw appointed an independent panel in 2010 to review the new evidence, did action commence. In line with modern practice, the Report of the Hillsborough Independent Panel, with all the documentation, is published (Hillsborough: The Report of the Hillsborough Independent Panel,  HC 802 (2011/12). Agreed unanimously by the 8-member panel, the report was largely written by Professor Phil Scraton of QUB, a long-term supporter of the Hillsborough families. It once again blamed the police for tampering with witness statements and categorically denied there was any evidence to verify police allegations of exceptional levels of drunkenness or violence among Liverpool fans. Hillsborough – along with many other unsuccessful inquiries – attests to the very great difficulty of holding the forces of law and order to account through a public inquiry. Typically, the two officers most involved in the disaster both retired, having avoided conviction in the criminal prosecutions and disciplinary action for neglect of duty. A reopened coroner’s inquest is now awaited. A more encouraging message from Hillsborough concerns the very great importance for accountability of freedom of information legislation and the contemporary climate of transparency.

The sad case of ‘Baby P’, murdered by his mother’s boy friend while under the radar of Haringey social services, is somewhat different. His death was the subject of (1) an internal inquiry by Haringey Council into the performance of its social services department of which only the executive summary was published; (2) an external inquiry ordered by the minister (Ed Balls) in terms of the Children Act 2004 and conducted by Ofsted, the Healthcare Commission and the Chief Inspector of Constabulary; and a further inquiry by Lord Laming (below). There was also a Coroner’s inquest, finally adjourned as purposeless. Alongside, the legal system was functioning quite normally: the actual killers were convicted and imprisoned; the civil courts intervened to protect the position of Haringey’s Head of Children’s Services, summarily dismissed under pressure from the minister without the benefit of a hearing R(Shoesmith) v Ofsted and others [2010] EWHC Admin 852; [2011] EWCA Civ 642); and two doctors who had apparently missed the scale of Baby P’s injuries were disciplined by the BMC.

Lessons for the future?

More significant from the standpoint of the public inquiry is the report commissioned by the Secretary of State from Lord Laming. In 2002-3, Lord Laming had held another inquiry into the death of Victoria Climbié in Haringey: The Victoria Climbié Inquiry Cm 5730 (2003). Specifically asked to make recommendations as to ‘how such an event may, as far as possible, be avoided in the future’, Lord Laming had produced 106 recommendations over matters ranging from training of social workers to problems with ‘joined up governance’. His report was accepted and the recommendations found their way into government policy (See Every Child Matters: Change for Children (2004); Working Together to Safeguard Children: A guide to inter-agency working to safeguard and promote the welfare of children (2006)). Now Lord Laming was being asked to provide ‘an urgent report’ on the progress made across the country to implement effective arrangements for safeguarding children. His Report (Lord Laming, The Protection of Children in England: A Progress Report,  HC 330 (2008/9), which this time contained only 58 recommendations, revealed how far from perfect the implementation of his Climbié report had been. It also highlighted the scale of the problem: of 11 million children living in England, 200,000 are at high risk of domestic abuse and violence, of whom 37,000 are the subject of a care order and 29,000 of a child protection plan. Haringey, be it noted, is a deprived and impoverished local authority ranking 5th in London on the index of multiple deprivation, where in 2007, 36.4% of children were assessed as living in poverty; 176 were subject to a child protection plan and 476 were in care, amongst the highest figures in the country. Is it surprising that in these circumstances not all the Laming recommendations were implemented?

How far are inquiries being given the policy-making functions traditionally allocated to Royal Commissions and are they suited to such a role? Lord Laming is a distinguished and experienced social worker – though this was not enough to restrain criticism of his appointment as Chair of the Climbié inquiry, on the ground that his own department had once been criticised in a local ombudsman investigation. Perhaps a judge would have been more impartial – but then, what of expertise? The recent report into the failures of care at Mid-Staffordshire NHS Foundation Trust was the second, ‘generic’ stage of a non-statutory inquiry – another increasing trend in inquiry proceedings – demanded, we are told by the Chairman, shocked by the facts that he unearthed in his first, specific inquiry (Independent Inquiry into Care Provided by Mid Staffordshire NHS Foundation Trust January 2005–March 2009, HC 375-1 (2010/11)). The Report, which ran to more than 1770 pages, contained 290 recommendations, took 2 1/2 years and cost over £13 million (Report of Inquiry into Mid-Staffordshire NHS Foundation Trust Public Inquiry, HC 947 (2012/13)).   Robert Francis QC is a barrister specialising in medical negligence. He appointed a panel of assessors, mostly with medical experience. One has nonetheless to query his qualifications to remodel our health services on the back of an inquiry into a single monumental failure. And will its fate be any different from the little-known Boorman review of health services in London (Full Report of the NHS Health and Well-Being Review (November 2009)) or for that matter Andrew Lansley’s hotly contested, and perhaps less well researched, proposals for remodelling health services, later to be remodelled in the Health and Social Care Act 2012?

The same may be said of Lord Leveson, a senior judge from the common law bar, invited to inquire into the ‘culture, practices and ethics of the press’ (Report into the Culture, Practices, and Ethics of the Press,  HC 213 (2012/13). The inquiry was divided into bite-sized modules: specific investigations into phone hacking and other journalistic iniquities, which Lord Justice Leveson was undoubtedly well-qualified to conduct; his procedures were undoubtedly swifter and less costly, at just over £5 million, than the Bloody Sunday Inquiry. Module 4, which contained recommendations for ‘a more effective policy and regulation that supports the integrity and freedom of the press while encouraging the highest ethical standards’, is more contestable. Even though the support of assessors  with considerable press experience renders this more palatable and more like a Royal Commission, the qualifications of the group to remodel the press are dubious, leaving space for the Government to reject its most important recommendation. Reassuring the public, making the press accountable or serving the political interests of government?

I believe that we are expecting too much from public inquiries. The Inquiries Bill was based on the report of a Select Committee (PASC, Government by Inquiry, HC 54 (2004/5) and a government consultation paper, ‘Effective Inquiries’. But these did not really address the many problems of ‘The Big Public Inquiry’ and contained no real examination of their functions as ‘an instrument of government’. We have been left with a heterogeneous set of arrangements for investigation, with overlapping functions and variable procedures. There is no real attempt at ‘joined up governance’. Each inquiry is limited by its terms of reference or statutory remit, which may overlap or may leave serious gaps. Our expectations are highly contradictory: establishing facts, for example, may do little for accountability; learning lessons for the future may require a diminution in accountability; and making organisations accountable may, as the Justice/All Souls Committee concluded all those years ago, provide little catharsis for individual victims. What remains all too often at very great cost to the taxpayer is serving the political interests of government.

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

Suggested citation: C. Harlow, ‘What Price Inquiries?’ UK Const. L. Blog (28th February 2013) (available at http://ukconstitutionallaw.org).

1 Comment

Filed under Judiciary, UK government

Paul Bernal: The Trial of Lady Chatterley’s Online Lover?

paul-bernalBritain has often had a very confused relationship with obscenity and pornography, one that has been played out in the law a few times over the years. We don’t quite know what to think about it, let alone what to do about it. Mervyn Griffith-Jones expressed the kind of attitude that many have in his notorious statement from the Lady Chatterley’s Lover trial in 1960, when he asked if it were the kind of book ‘you would wish your wife or servants to read’.

That kind of attitude seems to be in play again as another old idea about pornography seems to be emerging again: the idea of blocking all ‘pornography’ on the internet, forcing people to ‘opt-in’ to get access to pornography.

Details of how the idea might work have yet to be made clear. The stimulus this time around is that Iceland is actively considering proposals to block access to ‘violent and degrading’ content. Where Iceland leads, the UK, some have said, would like to follow next. But could it? And should it? And would such a ban be legal or proportionate? Perhaps even more pertinently, could the introduction of such a scheme have disturbing side effects?

Article 10 of the ECHR

Article 10 of the European Convention of Human Rights says that:

 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”

The ‘receive’ part of this right is often neglected – we not only have the right to express ourselves, but to receive information and ideas without interference, subject, of course, to Part 2 of the Article, which says amongst other things

 “…as are prescribed by law and are necessary in a democratic society… …for the protection of health or morals…”

So, if we are to suggest a block on online pornography, it would require it to be prescribed by law, and somehow for the ‘protection of health or morals’, which brings us back to the complex relationship we have with the whole idea of obscenity and pornography – back to Lady Chatterley’s lover.

Prescribed by Law

It is worth remembering that child sexual abuse images (sometimes described as child pornography) are already illegal pretty much everywhere in the world, and indeed on the internet. In the UK they are fairly effectively blocked, through the activities of the Internet Watch Foundation – an organisation that though it has been criticised in a number of ways (see for example this excellent article by my colleague Dr Emily Laidlaw) does seem to keep a tight rein on access to child abuse images.

There is consensus on this issue – and that consensus is reflected in both law and practice, not just in the UK but also in most other parts of the world. The level of success of the legal ban and its enforcement is another matter – but any ‘new’ ban on online pornography would not be about child sexual abuse images, no matter what campaigners say. Rather, it would be about a choice to ‘regulate’ access to content that is considered, in the UK at least, to be legal, at least for adult consumption.

Pornography is legal…

Of course there are some who may want porn not to be legal – but there are many others who would consider that an infringement of their Article 10 rights. One big question is how to define pornography – a question that the law has struggled with over the years. Section 63 of the Criminal Justice and Immigration Act 2008 made an attempt to define ‘extreme pornographic images’ but it has been subject to serious criticism (e.g. by Professor Andrew Murray in the his article for the MLR, available online here). The not guilty verdicts in R v Peacock and R v Simon Walsh in 2012 further muddied the waters – at the very least suggesting that there is no convincing consensus against pornography in our society. Taking it another step further, what about books like Fifty Shades of Grey? Not only is that not censored, but it is for sale in pretty much every bookshop in the country – and boldly and brightly on display, without any kind of an age-barrier. Is it pornographic? If not, how would pornography be defined so as to exclude it?

As well as the difficulties in defining pornography, there is the issue of enforcement. Who is going to trawl through the web looking at websites to try to classify them according to any standards that do get agreed? The IWF largely relies on sites being reported to them – to extend such a system to cover pornography in general would require huge resources, and the establishment of some kind of a censorship body.

Opt-in to porn?

But those proposing such a system might say, we’re not banning anything, or making anything illegal – people could just ‘opt-in’ to pornography, exercising their choice. In the digital world it isn’t as simple as that. First of all, there’s the question of whether it would work at all – and many commentators (for example Dr Brooke Magnanti in the Telegraph) have significant doubts. Blocking anything in the internet is much more easily said than done.

Secondly, bringing in an ‘opt-in’ system would have further implications. Signing yourself up as someone who opts-in to porn will put you on a database, a database of people who want access to pornography. What will that database be used for? It is a relatively simple slippery slope for a database of those who want access to adult content to become a database of people who are worth further investigation for other reasons.

It would be a database that would be of great vulnerability – the possibilities of using such information against people on it are significant. How many people would want their families, their employers or their friends to know that they had ‘opted in’? Effectively, forcing a sign-up could have a direct chilling effect: many people may not want to sign up for fear of the implications of that sign-up.

Censorship?

That, indeed, may well be the prime motivation behind some of these ideas: simply to discourage people from viewing pornography. That might be a laudable aim, but it is a bold claim to suggest that all pornography is ‘bad’, and some claim otherwise: Leslie Green in particular suggests that for the gay community pornography can be empowering and expressive rather than exploitative and oppressive. If it were to be accepted as a claim, it would need good, strong, empirical evidence to back it up. Is there such evidence? Even if there is, is such an aim one that either could or should be achieved through the law, and, ultimately, through censorship? That, ultimately, is what this kind of a system would result in.

It may in some ways be a laudable form of censorship, with laudable aims, at least insofar as some of the more extreme pornography is concerned – but it would be censorship nonetheless. What is more, it would be censorship of content that the law currently views as legal. If a porn-block is desirable, the first stage should surely be to designate the content as illegal – and not just on the internet. As mentioned above, the law has had great difficulty with that – R v Peacock and R v Walsh being recent examples – and it is hard to imagine that it wouldn’t have similar difficulties in the future.

There are echoes of the paternalism of the past in the current proposals, and, one suspects, some similar motivations. To update Mervyn Griffith-Jones’s notorious statement referred to above, there are some who might wish to ask:

“Is this the sort of website you would wish your husband or son to view?”

The answer to this question may very well be no – but it is worth remembering that Penguin won the Lady Chatterley’s Lover trial. Would the trial of Lady Chatterley’s Online Lover be any different?

Dr. Paul Bernal is a lecturer in the UEA Law School and a member of media@UEA. He blogs at: http://paulbernal.wordpress.com/ and tweets as @paulbernalUK.

Suggested citation: P. Bernal, ‘The Trial of Lady Chatterley’s Online Lover?’ UK Const. L. Blog (27th February 2013) (available at http://ukconstitutionallaw.org).

2 Comments

Filed under Human rights

David Mead: “Don’t Think Of An Elephant”: How Conceptualising Is Able To Skew The Outcome In Human Rights Cases

davidmeadIn his 2004 book “Don’t think of an elephant” cognitive linguist George Lakoff offered his view on the recent US political landscape. I’m very grateful that Daithí Mac Síthigh made me aware of it. Specifically, Lakoff tried to set out what he thought accounted for the success of the Republican right in winning the battle for the public’s hearts and minds during the 1990s. He analysed the debates surrounding several contentious issues, and the manner in which those debates, literally, were constructed. For example, on the issue of tax, instead of campaigning for “tax cuts” for the rich, Republicans framed the debate as one in which they were arguing for tax relief. As Lakoff wrote, “When the word tax is added to relief, the result is a metaphor: taxation is an affliction. And the person who takes it away is a hero, and anyone who tries to stop him is a bad guy. This is a frame. It is made up of ideas, like affliction and hero. And if people try to stop the hero, those people are villains for trying to prevent relief.”

This short post summarises some of my own “work in progress” which applies Lakoff’s idea of framing, or “conceptualising”, to the law specifically when human rights issues come to the fore. My primary aim in doing so is to seek views on whether it offers anything new and coherent. I vacillate between thinking that the argument it presents seems rather like the emperor’s new clothes and thinking there might somewhere be a relatively rich seam to be mined.

Not being much of a legal theorist or legal reasoner, it has dawned on me several times that I may be barking not up the wrong tree, but up a non-existent tree. That said, the decision – by either counsel or judge – about how to “conceptualise” the case in hand, or more precisely, the facts of the case in hand, doesn’t seem to be given much attention in legal literature. Yet, the way in which any legal scenario is conceptualised, that is to which area of law the factual matrix is best or most appropriately linked, can go a long way to determining the outcome or ultimate disposition, exactly as it can with framing contentious political questions. This happens in most cases at an almost subliminal level and for the most part is unlikely to be disputed, and unlikely to affect the outcome. That’s not always the case. For a plaintiff wrongly to decide – or to be wrongly advised – that a case raises a public law issue, rather than being simply a private law dispute – public sector employment contracts for example – can have serious consequences, as it did in, say, Evans v University of Cambridge.

In the human rights field, how the matter has been framed or conceptualised has the potential to affect how the case is resolved, if not the actual outcome in every instance. The remainder of this blog outlines some of the ways in which this might occur. The fuller article will plot a formal typography. Issues and concerns surrounding the conceptualisation of a case is neither new nor unique to human rights cases – or even public law. This much, I hope, is obvious. We might think of arguments over administrative vs. judicial hearings, in the days of Nakkuda Ali and Ridge v Baldwin, or categorising civil wrongs as actions on the case or damages as pure economic loss. The point is more that it has the potential to have greater effect, simply because of the issues in play and the public nature of the rights at stake.

First and most obviously, a case may not be framed as raising a rights-issue at all. The pre-HRA case of Sultan Khan in 1996 exemplifies this well. There, the House of Lords did not see the placing of a bug on a suspect drug dealer’s house as being about privacy at all. It was, in their eyes, simply a case about the admissibility of evidence. Secondly, there are cases where the courts do not see the facts as engaging a right at all. A good example would be the employment law case Pay where the EAT did not consider that being dismissed by the probation service for engaging in sado-masochistic sexual activity outside of and unconnected to work, raised Article 8 issues at all. Another would be Gillan. There, a half-hour stop and search under s.44 of the Terrorism Act 2000 was held by the House of Lords not to be a deprivation of liberty (within Article 5) and they doubted if it engaged the right of privacy in Article 8. In both, the European Court held (Gillan v UK) or in Pay v UK assumed otherwise – though Mr Pay lost on the facts. It’s crucial, of course, that the engagement issue is “correctly” disposed of, if for no other reason than that – in the case of qualified rights – the burden of showing the proportionality of the measure then falls on the state. Whether the facts are framed as to prefer one right over another is the third way in which conceptualisation rears its head. Was Mendoza really a case about equality and non-discrimination – or is it possible to see it as raising questions about the allocation and regulation of that scarce socio-economic resource, housing supply – albeit in the private market? The extent to which a court is prepared to defer to the primary decision-maker may depend on such categorisations. Last, whether we – and judges – view a case as being about private rights or about public rights, and values, is important too – and will clearly affect the outcome. Of course, the Occupy cases like Samede are about how private landowners can use their own land – but are they not also about how groups of citizens, perhaps disenfranchised, are able to utilise their public rights of free speech and protest? In an area I have written about recently – police searches by consent ([2012] Crim LR 97) – seeing the only issue as one of giving the police licence to do that which would otherwise be trespass and not as raising public law issues of accountability, transparency and power does not fully convey the position when the police come knocking.

Framing is not new – nor confined to law. We see it every day in newspapers – fitting an item into our pre-existing world view or sensitivities, or even expectations. Was Hilary Mantel’s LRB piece, really an attack on royalty – and on Kate Middleton – or was it a comment on the workings of the press, something concealed in the press reports themselves? The press of course “frame” the human rights debate too – by selective inclusion and language, and even perhaps deliberate conflation of that two-headed European beast, the EU and the ECHR. Framing and conceptualisation in the law though is qualitatively different. By its nature, litigation has the potential to juridify social relations and scenarios – they exist no longer on the street or at work but are legally enshrined and given legal form  – and not, of course, simply for that one case. Deciding, to take another example, whether a claim for misusing private information is a bastardised equitable claim or a new type of tort will dictate whether damages are can be refused for future claimants on a discretionary basis. It’s important we work at seeing the law through the right lenses.

David Mead is Professor of Public Law & UK Human Rights at the University of Essex

Suggested citation: D. Mead, ‘”Don’t Think Of An Elephant”: How Conceptualising Is Able To Skew The Outcome In Human Rights Cases’ UK Const. L. Blog (26th February 2013)(available at http://ukconstitutionallaw.org).

1 Comment

Filed under Human rights, Judicial review

Greg Weeks: Can you stop the Revenue from acting on a change of mind?

gregA recent judgment in an interlocutory hearing in the Federal Court of Australia has raised the fascinating question of what redress might be available against a revenue authority for changing its mind.  In Macquarie Bank Limited v Commissioner of Taxation, the applicant sought to restrain the Commissioner of Taxation from acting on his changed view on the law relating to Overseas Banking Unit (‘OBU’) expense allocations.  The applicant has commenced judicial review proceedings against the Commissioner which are yet to be heard.  The interlocutory application was for urgent injunctive relief to prevent the Commissioner acting on his stated intention for the Australian Taxation Office (ATO) to “apply retrospectively the Commissioner’s new view on the law concerning the allocation of OBU expenses”.  Griffiths J rejected the interlocutory application.

Assuming that Macquarie Bank pursues the substantive proceedings in this matter, it will need to overcome some significant hurdles in order to succeed.  There is, at present, little scope for preventing a public authority from changing its mind in Australia.  There is no doctrine of public law estoppel; public authorities are not bound to their promises in Australia if this would cause them to act ultra vires or would fetter their discretion.  The Australian High Court has also consistently rejected substantive enforcement of legitimate expectations and, more recently, has stated that the phrase should be “disregarded” even in reference to the obligation to provide procedural fairness.  The extent of the problem facing Macquarie Bank is neatly summarised by the grounds of judicial review on which they propose to rely:

There are several grounds of judicial review challenge. They include a primary claim that the decision [to act on a revised view of the law relating to OBU expenses] is Wednesbury unreasonable.  Further grounds are also raised of illogicality or irrationality, no evidence to support the decision, failure to take into account a relevant consideration or taking into account of an irrelevant consideration, failure to observe the requirements of natural justice, excess of authority resulting in the decision being ultra vires, and a failure to comply with procedures which the decision-maker, it is said, was required to observe.

There are few modern examples of Wednesbury unreasonableness being argued successfully in Australian courts.  Like the related ground of illogical or irrational fact finding, it demands nothing short of absurdity on the part of a decision maker.  This would be difficult to prove particularly where Macquarie Bank has deliberately avoided making any allegation of bad faith against the Commissioner or the ATO (although the two grounds are not coextensive, they share substantial overlap which has been noted in regard to Warrington LJ’s famous example in Short v Poole Corporation [1926] Ch 66).  As a “primary claim”, an argument that the Commissioner has acted in a Wednesbury unreasonable manner does not inspire great confidence, given that it is a ground which has never had better than a remote chance of success.

A secondary problem is that the Australian High Court has interpreted the legislative scheme contained in the Income Tax Assessment Act 1936 as limiting the opportunities to challenge decisions of the ATO through judicial review where statutory review or appeal procedures are provided.  The rare exceptions to this approach relate to “allegations of bad faith or fraud or abuse of power”, which have not at this stage been articulated in the proceedings commenced by Macquarie Bank.

The fact that Macquarie Bank’s case will be hard to make out does not, however, mean that it lacks merit.  Specifically, the applicant’s claim that “the indication given by the Commissioner as to his change of view is in breach of the ATO practice statement PSLA 2011/27” demands consideration.  The Practice Statement in question is a soft law instrument entitled “Matters the Commissioner considers when determining whether the Australian Taxation Office (ATO) view of the law should only be applied prospectively”.  If the Commissioner acts on his stated intention to apply his altered view of the law concerning OBU expenses retrospectively, and to do so falls outside the terms of the Practice Statement, one might justifiably conclude that those (including Macquarie Bank) who have arranged their affairs in reliance on the ATO’s previously stated legal view as to OBU expenses, along with the terms of the Practice Statement, have been penalised without any fault.

The facts are reminiscent to some extent of those in R (Davies) v The Commissioners for Her Majesty’s Revenue and Customs, in which the Supreme Court considered a vaguely expressed soft law guidance note which purported to indicate when a person ceased to be resident in the UK for tax purposes.  The Supreme Court held by majority that the guidance note had not been complied with by the applicants in any case but the case was troubling (and members of the Court of Appeal gave voice to their concerns in this regard) given that the soft law guidance note was on every account very poorly drafted but was nonetheless sufficiently convincing to guide the commercially sophisticated applicants to arrange their affairs on the faith of it.

There can be no doubt that soft law issued by revenue authorities is treated seriously by those looking to arrange their affairs in accordance with the law.  It is frequently the case that the view of the law taken by the revenue authority is incorrect, a circumstance which may be pointed out by a court or which the revenue authority may come to realise unaided.  In such cases, the revenue authority must of course revise its stated view of the law on a given subject.  I doubt that Macquarie Bank would contest this statement in its proceedings.  However, this need not oblige a revenue authority to apply its changed view retrospectively.  The discretion invested in revenue authorities with regard to the collection of revenue has been recognised at least since the Fleet Street Casuals Case and the Commissioner’s powers to secure an optimal (rather than the maximum) collection of revenue is recognised in Australia both by the ATO and the legislature.

While it is to be hoped, however, that the court which hears the substantive application brought by Macquarie Bank will bear in mind the immense practical power of soft law, it will be confined by the legal framework of judicial review in Australia.  There is, on the current state of the law, little hope that Macquarie Bank will be able to constrain the broad discretion invested in the Commissioner with regard to the collection of taxation revenue.

Greg Weeks is a Lecturer in Law at the University of New South Wales

Suggested citation: G. Weeks, ‘Can you stop the Revenue from acting on a change of mind?’ UK Const. L. Blog (25th February 2013) (available at http://ukconstitutionallaw.org)

Leave a comment

Filed under Australia, Comparative law, Judicial review

Brice Dickson and Colin Harvey: Options on the way forward for human rights in Northern Ireland

ColinBriceAdvice on a Bill of Rights for Northern Ireland, submitted to the Secretary of State by the Northern Ireland Human Rights Commission in 2008, was roundly rejected by the UK government in 2009 and there seems to be little appetite within the Northern Ireland Office for revisiting the issue in the foreseeable future. In London, the coalition government’s Commission on a UK Bill of Rights, set up in 2011, reported in 2012 but could not suggest an agreed way forward on a UK basis. In Scotland, on the other hand, bearing in mind the forthcoming referendum on independence in 2014, there is renewed interest in whether legislation should be passed by the Scottish Parliament to guarantee a range of social and economic rights. The Republic of Ireland, for its part, is currently re-examining its Constitution and has recently voted in a referendum to enhance the protection of children’s rights.

As the nature and extent of the protection of rights continue to vary within these islands, we think it is worthwhile putting forward a list of options for what might next be done in this context within Northern Ireland. We are doing so under the auspices of the Human Rights Centre in the School of Law at Queen’s University Belfast. The Centre is keen to play a leading role in promoting critical thought and further discussion about this issue. We believe that Universities must play their part in encouraging such society-wide debates.

Option 1, of course, would be to do nothing regarding the protection of human rights in Northern Ireland. For those who favour that approach such a position is fine. We do not ourselves want to let things rest where they are. We would prefer to keep talking and thinking about how best to enhance the protection of rights in a way that works to the benefit of everyone in Northern Ireland.

Option 2 would be to push harder for government acceptance of the NIHRC’s advice on a Bill of Rights. There may be some legal merit in that approach but there are also likely to be very significant political difficulties in doing so. No doubt the NIHRC will itself wish to continue to promote its thinking, and there may be others who will want to support them in doing so. But we believe there are further options which are worth considering too.

Option 3 – less ambitiously perhaps – would be to nudge matters forward by bringing people together to consider in a transparent and honest way the full range of means by which human rights could be better protected in Northern Ireland, including perhaps by a Bill of Rights. Doing so will raise at least four further issues which will need to be considered, namely:

(1)  Which, if any, human rights are not fully enough protected in Northern Ireland at the moment?

(2)  How might improved protection of those human rights be brought about?

(3)  What discussions need to take place to arrive at consensus answers to questions (1) and (2)?

(4)  How could those discussions be facilitated?

We accept that consensus answers to questions (1) and (2) need to be reached primarily at a political level within Northern Ireland and that unionist and nationalist parties currently hold different views about the degree to which human rights need to be protected in Northern Ireland. We are firmly of the opinion, however, that reaching such consensus is possible. We believe that doing so would bring greater stability to the political arrangements in Northern Ireland, better define and protect the various identities of all the people living in Northern Ireland, and help to bring about a truly shared society based on respect for the rights of everyone. It might also help to reassure those factions who, for whatever reason, are antagonistic to the peace process as underpinned by the Good Friday Agreement of 1998 and the St Andrews Agreement of 2006.

Our aim here is to initiate an inclusive discussion with all those committed to enhanced human rights protection and promotion. We look forward to continuing the conversation across these islands.

Brice Dickson and Colin Harvey are based at the Human Rights Centre, School of Law, Queen’s University Belfast

Suggested citation: B. Dickson and C. Harvey, ‘Options on the way forward for human rights in Northern Ireland’ UK Const. L. Blog (23rd February 2013) (available at http://ukconstitutionallaw.org)

2 Comments

Filed under Northern Ireland

Event: Seminar on the impeachment of the Chief Justice of Sri Lanka 27 February 2013

BHRClogo_1The Bar Human Rights Committee invites UK Constitutional Law Group members and blog readers to attend a seminar on Wednesday 27 February 2013, 6-8 pm, on the impeachment of the Chief Justice of Sri Lanka. Further details are here.

Leave a comment

Filed under Events, Judiciary

Please join or renew your UK Constitutional Law Group membership for 2013

Pound CoinsReaders of this blog are invited to support the UK Constitutional Law Group by paying a £15 annual membership subscription (which runs for the calendar year 2013). This can either be done online here or a cheque payable to ‘University College London’ sent to the Group’s treasurer, Professor Dawn Oliver at: UCL Faculty of Laws, Bentham House, Endsleigh Gardens, London WC1H 0EG.

Your subscription will make you a member of the International Association of Constitutional Law, of which the Group is an affiliated organisation. Details of the 2014 IALC world congress in Oslo can be found here. The Group must find €250 a year in fees to the IACL and there are costs in running the blog. Thank you for your support!

1 Comment

Filed under Uncategorized

David Erdos: Mustn’t Ask, Mustn’t Tell: Could New EU Data Laws Ban Historical and Legal Research?

david.erdosEven with the advent of Web 2.0, data protection law is still often seen as technical and only narrowly applicable.  Technical abstruseness aside (and data protection’s reputation here is certainly deserved!), this understanding couldn’t be more wrong.  The existing European data protection framework actually has a breath-taking scope.  It applies to anything done electronically with any information about an identified or identifiable person (possibly even the dead).  According to the EU, even innocuous details already in the public domain are protected (perhaps even the title of an author’s book).  Moreover, if the information reveals in any way, for example, race/ethnic origin, political opinions, religious belief, trade union membership, health or criminality, then it is classed as “sensitive” information and subject to even tighter regulation.  A number of European courts have ruled that all colour images are covered by this as they display racial information.  The European data protection framework (Directive 95/46/EC) is not only broad but often onerous.  Barring a specific exception (including a liberal one (Art. 9) which can be invoked for journalism, literature and the arts), there is a presumption that individuals will be informed about the processing of data about them (Arts. 10-11) and given a right to object (Art. 14), that the processing of “sensitive” personal information will be banned (Art. 8.1) and that no personal information will be transferred outside the European Economic Area without “adequate protection” (Art. 25.1).

So the popular perception of data protection is woefully inaccurate – which leads to a radical underestimation of the threat this regime poses to the enjoyment of other fundamental rights and pursuit of legitimate activities.  Nowhere is this more the case than in relation to social and humanities research.  Since the advent of the EU data protection framework, researchers have witnessed dramatic restrictions on their freedom to use “sensitive” data or to resort to covert methodologies.  Coupled with the growth of sometimes intrusive “ethical” review policies, the barriers and burdens placed in the way even of ordinary, innocuous, yet socially beneficial research and on researchers have become considerable.

It might have been hoped that the proposed EU Data Protection Regulation would provide an opportunity to reverse this.   But if the European Parliament’s just published draft report and amendments are anything to go by, the converse is true.  Prepared by Jan Albrecht MEP, the Rapporteur of the Civil Liberties, Justice and Home Affairs Committee (the lead Committee for considering the Regulation), these stringent proposals would effectively outlaw almost all research in law and in contemporary history as well as a great deal of work in sociology and political science.  Now, any processing for historical, statistical or scientific research purposes would be subject to the following:

  • A complete ban on publishing even the most innocuous personal data in identified form unless the individual in question either has themselves put it into the public domain or has freely given, specific, informed and rescindable consent (Amendment 339, p. 201).  This would deny a historical researcher the right to publish information from a newspaper article accurately reporting the public activities of a public official (e.g. Tony Blair’s involvement in the decision to go to war in Iraq).  It would also prohibit the citation and publication of analyses of already published court judgments since these are full of identifying details which the justice system rather than the individuals concerned have put into the public domain.
  • If the details in question reveal any “special” categories of information (see above), then the restrictions would be even greater.  In the absence of freely given, specific, informed and rescindable consent, all such research would be banned unless Member States, on a purely optionally basis, allow their Data Protection Authority to issue permits for this.  These could however only be granted if the information “be anonymized, or if that is not possible for the research purposes, pseudonymised under the highest technical standards, and all necessary measures…taken to prevent re-identification of the data subjects”.  The research must also serve “exceptionally high public interests” and be something that “cannot possibly be carried out otherwise” (Amendment 337, p. 200).  Not even information previously published by the individual in question would be exempt.   Thus, for example, a historian would have no right to report that Emma Nicholson, now a Liberal Democrat Peer, used to be Conservative MP despite this being public knowledge freely available on Wikipedia. (According to the  Information Commissioner’s Office the political affiliation of an MP is “sensitive” personal data (p. 8)).
  • We are also told that in all cases “data enabling the attribution of information to an identified or identifiable data subject” must be “kept separately from the other information” (Amendment 335, p. 199).  This would prevent a researcher from saving a court judgment or a newspaper report on a laptop without having first replaced all personal identifiers (such as “David Cameron” or “Lord Hutton”) with a pseudonymised (as above) code, the key to which would then have to be stored elsewhere.
  • Finally, the clause allowing the European Commission to propose delegated legislation to allow for covert research has simply been deleted (Amendment 341, p. 202).  But, subject to suitable safeguards, such research has often been essential in bringing to light important facts including illegal police practices and discriminatory attitudes on the grounds of sex, ethnicity or race.  People are obviously not going to be willing to give consent to their wrongdoing being researched.

Albrecht is candid about the restrictions on research freedom which are being proposed.  Thus we are told baldy that “[r]esearch purposes should not override the interests of the data subject in not having his or her personal data published” (at p. 201).  If the word “journalistic” were substituted for “research”, then it would be obvious to everyone, including of course the Press, just how onerous this censorship is. Ironically, alongside these harsh restrictions on research, Albrecht proposes broadening the protections set out in Article 80 as regards journalism, literature and arts so as to protect freedom of expression per se (Amendment, 324, p. 193).  This is to ensure that “freedom of expression is protected in general, not just for journalists, artists or writers” (p. 52).

Freedom of expression is defined by reference to the EU Charter which includes freedom to “receive and impart information and ideas without interference” (Art. 11), a right similarly protected in Art. 10 of the European Convention on Human Rights.  In creating and disseminating new knowledge, social and humanities research intrinsically instantiates such freedom of expression.  Moreover, the special concern of research to investigate genuinely important issues whilst upholding the qualities of rigour, culmination and precision ensures that social and humanities research will usually constitute ‘high-value’ publicly interested speech which the European Court of Human Rights has correctly stated should generally be free from legal restriction. As Brian Harrison has also correctly argued “there is no distinction in principle between the journalist and the historian:  the historians simply have more time for research and reflection”.  However, the one type of actor whose freedom of expression is not protected by this proposed revision to Article 80 is researchers (historical or otherwise).  This is because, whilst Article 80 does allow for (balanced) derogations from most of the Regulation, Article 83’s stipulations on historical, statistical and scientific research are excluded from this.  Freedom of expression is turned “on its head”!

It is vital that the draft Data Protection Regulation be amended.  We need to ensure that social and humanities research is unequivocally included within Article 80’s freedom of expression protections.  This should also prompt a wider rethink of the over-regulation of research compared with other, often less socially valuable, activities.  The proposals are still being considered by both the European Parliament and the Council of Ministers.  It is not too late to press for the necessary changes.  All who care about the future vitality of academic inquiry need to wake up to the realities of Data Protection.  Universities and other research organizations need to be forthright and assertive in opposing these unjustified and unworkable proposals.  Everyone acknowledges that, in some contexts, genuinely sensitive personal data needs protection.  But when this balloons into wide, and wild, overreaction we find ourselves able to know less and less about the societies we live in – including, paradoxically, about the nature of privacy and about the effects of Data Protection regulation itself.

A version of this article was originally published in Times Higher Education (“Mustn’t ask, mustn’t tell”, 14 February 2013, p. 30).

David Erdos is principal investigator of the Data Protection and the Open Society project and a research fellow at the Centre for Socio-Legal Studies and Balliol College, University of Oxford.

Suggested citation: D. Erdos, ‘Mustn’t Ask, Mustn’t Tell:  Could New EU Data Laws Ban Historical and Legal Research?’ UK Const. L. Blog (14th February 2013) (available at http://ukconstitutionallaw.org)

6 Comments

Filed under Human rights

News: House of Lords Constitution Committee seeks new legal adviser

HLThe  House of Lords Select Committee on the Constitution is inviting applications for a vacant post of one of its legal advisers.

 The role is part-time, remunerated by daily fee. The successful candidate will demonstrate a well-established expertise in the fields of public law generally and constitutional law in particular. The primary task is to help the committee fulfil its role examining the constitutional implications of all public bills, but the adviser will also help the committee with other aspects of its work.

The legal adviser will work closely with the committee’s other legal adviser, Professor Adam Tomkins, under the general direction of the clerk.

Role of the adviser

Working with the other legal adviser, the successful candidate will be expected to:

  • prepare a written analysis for the committee of the constitutional implications of Government bills (and some private members’ bills), with the normal aim of the committee considering the note before the bill’s second reading in the Lords;
  • prepare draft reports on bills as appropriate;
  • prepare draft letters to ministers as appropriate;
  • attend the committee as appropriate to assist its deliberation; and
  • undertake other work for the committee as required.

In addition to the legal advisers and the clerk, the Constitution Committee has a policy analyst and a committee assistant. The House of Lords Committee Office is able to provide some secretarial and administrative support.

Skills

The successful candidate will demonstrate a well-established expertise in the fields of public law generally and constitutional law in particular. He or she will demonstrate a strong understanding of how legislation is drafted, and the ability to advise on the effects of legislation clearly and concisely, setting provisions in their legal and constitutional contexts. He or she must be incisive, articulate and able to draft quickly and clearly for both a specialist and a non-specialist audience.

The adviser will be expected to offer the committee impartial advice, regardless of any personal or professional interest in the outcome, and in particular should avoid being seen to favour a particular viewpoint when dealing with contentious issues.

The appointment is likely to be suited to a senior academic lawyer or to a person with experience of working as a senior lawyer in government.

Time

The number of days a week the adviser will need to spend on the work of the committee will vary over the parliamentary session. Activity is expected to be highest following the Queen’s speech opening the session in the spring; so the scrutiny role will particularly active from May to the end of July. There may be less activity in the rest of the year, though it will vary. The commitment should not average more than one day a week when the House is sitting. A fast pace of working is required: a note on a bill will often need to be prepared within days of the bill being introduced.

The adviser would normally work away from Westminster, communicating with the clerk and other staff by email and telephone. The adviser would normally attend committee meetings at which notes on bills, or reports on them, which the adviser has drafted are being discussed.

Conditions of appointment

The appointment will attract a daily fee of £375, payable monthly, either for attendance on the committee or for time spent on the work of the committee. A half-day rate is payable. Travelling expenses are payable within specified limits and there is provision for a modest subsistence allowance. Amounts received by way of fees and expenses are potentially liable to income tax (or VAT) and the House of Lords may seek formal assurance that income tax and national insurance obligations are being met. The committee’s legal advisers are not employees of the House of Lords.

Applications

Interested candidates should send a CV to the Clerk of the Constitution Committee, House of Lords, London SW1A 0PW and/or to beslyn@parliament.uk by or on Monday 11 March. Interviews are likely take place in late March. The appointment is subject to the approbation of the committee, with the adviser beginning work at the start of the new parliamentary session, likely to be in late April or early May.

About the committee

The House of Lords Select Committee on the Constitution was appointed in 2001 to fulfil a recommendation of the Royal Commission on reform of the House of Lords that:

“The second chamber should establish an authoritative constitutional committee to act as a focus for its interest in and concern for constitutional matters.”

The committee’s terms of reference are:

 “To examine the constitutional implications of all public bills coming before the House; and to keep under review the operation of the constitution.”

The committee set out its approach to this task in its first report, which is available via the parliamentary website www.parliament.uk (as are the committee’s other reports).

The current chairman of the committee is Baroness Jay of Paddington. There are four Labour, four Conservative, two Liberal Democrat and two Crossbench members. The vacancy is created by one of the present legal advisers, Professor Richard Rawlings, standing down. The committee usually meets weekly, on Wednesdays at 10.15 am (though the meeting time or day may be subject to change).

For more information about the committee or the post of legal adviser please contact the clerk of the committee (Nicolas Besly) at beslyn@parliament.uk or on 020 7219 1228.

Leave a comment

Filed under Uncategorized

Roger Masterman: The Mirror Crack’d

rogerUntil recently, the Ullah principle – that in giving effect to the Convention rights under the HRA the ‘duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’ (at [20]) – was something of a mantra for certain members of the senior judiciary.  Since Ullah was decided by the House of Lords in 2004, the core assumption of the principle, that the domestic law of human rights should in content and scope mirror its Strasbourg counterpart, has come to exercise a controlling and pervasive influence over the application, and meanings of, the Convention rights applied under the HRA.

The legacy of Ullah is clearly discernible across a range of judicial comment on the influence of ‘clear and constant’ Strasbourg jurisprudence applied as a result of the HRA; the best known – ‘Strasbourg has spoken, the case is closed’ (at [98]); ‘no less, but certainly no more’ (at [106]) – re-emphasise that the Strasbourg case-law is perceived by some judges as setting the strict boundaries within which a domestic human rights jurisprudence may develop.  The Ullah principle simultaneously treats the Strasbourg case-law as an aspiration and as a constraint, and eschews municipal development – by domestic courts at least – of the Convention rights that cannot be clearly underpinned by reference to clear and relevant Strasbourg authority.

In the recent decision of the Court of Appeal in R (on the application of the Children’s Rights Alliance for England) v Secretary of State for Justice Laws LJ encouraged the Supreme Court to reconsider the wisdom of the Ullah principle.  In a short postscript to his decision (at [62]-[64]), Laws LJ added the following:

“… perhaps I may be forgiven for stating, with great deference to the House of Lords and the Supreme Court, that I hope the Ullah principle may be revisited. There is a great deal to be gained from the development of a municipal jurisprudence of the Convention rights, which the Strasbourg court should respect out of its own doctrine of the margin of appreciation, and which would be perfectly consistent with our duty to take account of (not to follow) the Strasbourg cases. It is a high priority that the law of human rights should be, and be seen to be, as sure a part of our domestic law as the law of negligence. If the road to such a goal is clear, so much the better. ”  

Some clarification from the Supreme Court may well be worthwhile, especially as the cracks in the Ullah principle are becoming all the more evident.

There are, in theory at least, a range of suggested circumstances which might underpin a departure from the apparent application of the Ullah principle.  An entirely non-exhaustive (and highly-simplified) survey of the case-law reveals that in HRA adjudication relevant and applicable Strasbourg jurisprudence should be presumptively followed unless:

1.  Its application would compel a conclusion which would be ‘fundamentally at odds’ with the United Kingdom’s separation of powers (whatever that might be) (Alconbury at [76]);

2.  ‘Special circumstances’ (whatever they might be) justify a departure (Alconbury at [26]);

3.  The court can think of a ‘good reason’ that the Strasbourg jurisprudence not be applied (Amin, at [44]);

4.  It is ‘reasonably foreseeable’ that the European Court of Human Rights would now come to a different conclusion than in the available authorities (R (on the application of Gentle) v Prime Minister, at [53]);

5.  The question to be resolved is one for domestic authorities to ‘decide for themselves’ (Re P, at [31]);

6.  The area is governed by common law and the court is minded to exercise its discretion to depart from the Strasbourg line (Rabone v Pennine Care Foundation NHS Trust, at [113]);

7.  The court attaches ‘great weight’ to a legislative decision which determines the balance to be struck between rights and interests in a way which might be interpreted as being inconsistent with Strasbourg authority (Animal Defenders International, at [33]);

8.  The Strasbourg case-law is past its use-by date (R (on the application of Quila v Secretary of State for the Home Department, at [43]);

9.  The domestic court prefers to follow non-Strasbourg authority (R (on the application of Daly) v Secretary of State for the Home Department, at [27]-[28]).

10.  The judge/court regards the Strasbourg jurisprudence as being not ‘particularly helpful’ (A v Home Secretary, at [92]);

11.  The Strasbourg authority is wrong (or as Lord Neuberger put it in Manchester City Council v Pinnock, at [48]) ‘inconsistent with some fundamental substantive or procedural aspect of our law’);

12.  The Convention case-law is badly-informed (or as Lord Neuberger put it in Manchester City Council v Pinnock (at [48]) ‘appear[s] to overlook or misunderstand some argument or point of principle’);

13.  The court wishes enter into a ‘dialogue’ with the European Court of Human Rights (on the basis that the applicable case law may be wrong or badly-informed or both) (R v Horncastle).

Even where relevant and potentially applicable Strasbourg authority is available, a number of Strasbourg-avoidance techniques appear to be at the disposal of domestic courts.  The currency of the principle can, in part, be explained by the fact that for much of the lifespan of the HRA, these exceptions were – as Jonathan Lewis ([2007] PL 720) has observed – easier to identify in theory than in practice.  And even though it may now be possible to identify a greater number of exceptions to the general presumption – though some of the above may not be worthy of the label – the Ullah interpretation of the obligation imposed by s.2(1) HRA remains authoritative and binding on lower courts.  The Ullah principle is, however, approaching a crossroads.

The retirement of the Ullah principle’s architect and advocate – Lord Bingham – may have marked something of a turning point.  Shortly after, Horncastle provided with perhaps the most visible evidence to date of the United Kingdom’s apex court seeking (ultimately successfully) to engage critically with otherwise relevant and applicable Strasbourg authority.  Since then, an increasing number of senior judges – Laws LJ now included – have questioned whether the principle ought not to admit of greater, more concrete, exceptions and whether it in practice exercises a disempowering effect on the courts.  Baroness Hale, for instance, argued in 2011 that the ‘mirror principle … can suggest a position of deference [to the Strasbourg court] from which it is difficult to have an effective dialogue.’  Lord Kerr, meanwhile, spoke forcefully in Ambrose v Harris against the ‘Ullah-type reticence’ under which ‘it is … considered wrong to attempt to anticipate developments at the supra-national level of the Strasbourg court’ and which dictates that domestic courts ‘should not go where Strasbourg has not yet gone’ (at [126]).  Extra-judicially, Lord Kerr has argued that domestic courts should avoid furthering the suggestion that they are merely the ‘modest underworkers’ to the European Court of Human Rights.

Perhaps most importantly however, the Bill of Rights debate has emphasised that while the legal influence of the Ullah principle is considerable, it has arguably had a damaging effect on political perceptions of the HRA and the link the Act creates between domestic law and the Convention jurisprudence.  The relationship between domestic courts and the European Court of Human Rights that Ullah embodies is out of touch with the widely-held view that the content of our domestic human rights law should not be ‘dictated’ to us by the European Court.

This of course raises more difficult questions.  Many of those who have criticised the Ullah principle have done so for the reason outlined by Laws LJ; that the rigid relationship it promotes increases the likelihood of the Convention being perceived as an alien appendage, runs the risk of embracing the Convention’s deficiencies and becomes insensitive to national quirks or peculiarities.  A good number also reject the view that the Strasbourg standard should be perceived as being both base-line and target for a national rights jurisprudence.

Others – including, it is suspected, a number in the majority of the Bill of Rights Commission – would seek to dilute the influence of the European Court of Human Rights over national law both in order to restore faith in a misguided notion of ‘national sovereignty’ and to simultaneously dilute the level of protection available for rights at the national level.  A number of senior judicial figures appear to sympathise with the extent to which the European Court of Human Rights is perceived to shape the content of national protections; Lord Scott has spoken in in the House of Lords of the need to avoid the ‘occasional extravagances of the Strasbourg Court’ while Lord Sumption – in his FA Mann lecture (and prior to taking up his position on the Supreme Court) – raised similar concerns about Strasbourg overreach.  This arm of Ullah-scepticism seems to suggest that certain elements of the Strasbourg case-law should be resisted, rather than engaged with constructively in order to better the state of the (domestic and international) law of human rights.

The brief survey of exceptions above highlights that – while important – the Ullah principle is not non-negotiable.   The challenge for the Supreme Court, as it was for the House of Lords before it, is to navigate a course between the extremes of unquestioning application of the Strasbourg case-law and unprincipled antagonism towards it.  An acknowledgement by the Supreme Court that practice under the HRA reveals a more sophisticated approach to the Convention case law than the Ullah mantra would suggest may go some way to addressing Laws LJ’s concerns and may, in turn, address what the Bill of Rights Commission seemed to think a lost cause; a sense of domestic ownership over the Convention rights.

 Roger Masterman is Reader in Law at Durham University.

 

Suggested citation: R. Masterman, ‘The Mirror Crack’d’ UK Const. L. Blog (13th February 2013) (available at http://ukconstitutionallaw.org)

 

8 Comments

Filed under Human rights, Judicial review