Monthly Archives: June 2013

Patrick O’Brien: Does the Lord Chancellor really exist?

patrick-obrienOn 12 June 2003 a minor constitutional revolution began with the resignation of Lord Irvine as Lord Chancellor and the announcement of a package of reforms including the abolition of his office and the creation of a Supreme Court, later to become the Constitutional Reform Act 2005 (CRA). To commemorate the tenth anniversary of these events, the Judicial Independence Project held a private seminar on 12 June 2013 at which some of those directly involved in the changes spoke about the experience and the effects it has had on constitutional change. A note of the seminar is available here. In part the seminar brought out the drama and the comedy of the day itself. An old friendship ended in acrimony: Irvine had been the Prime Minister’s pupil master and had introduced him to his wife. At the same time the senior judiciary, at an away day with civil servants, were taken by surprise by the announcement and had to have the details explained to them whilst they huddled, increasingly angry, around a single phone in a country pub.

The judiciary and lawyers have always seen the constitutional changes that ultimately became the CRA as being about them: about judicial independence and the courts. In fact for the government they were primarily about policy delivery and changes to the machinery of government. The Prime Minister wanted to replace the Lord Chancellor’s Department, which was perceived to be poorly managed, with a normal government department led from the Commons and capable of delivering the New Labour agenda of reform.

The reforms of 2003-2005 were also intended (at least in part) to make the judiciary more independent, but by removing the voice of the Lord Chancellor in Cabinet the judiciary felt that they would be left less independent. The perception remained – and largely remains – that the old Lord Chancellor was a staunch defender of the judiciary and their independence. Yet many of Lord Chancellors of recent decades had fallen out badly with the judiciary over reforms of one kind or another. Lord Mackay was highly respected as a judge and as Lord Chancellor but his reforms to pensions and the legal profession enraged the judiciary. Lord Elwyn-Jones’ refusal to promote Sir John Donaldson in the 1970s for fear of the political reaction amongst back bench Labour MPs is remembered bitterly as a low point for judicial independence.

The plan to abolish the Lord Chancellor was not followed through following pressure from the House of Lords and recognition that abolition would be an extremely complex matter. The title of Lord Chancellor was retained. But what is it that remains? Speakers at the seminar suggested that post-CRA the office no longer exists. There is something called ‘the Lord Chancellor’ but, shorn of the judicial functions and the speakership of the Lords that characterised the old office, the new office is a sort of vestigial organ attached to the Justice Secretary, to be exercised in wig and gown at state occasions but with little more substance than that (and the current incumbent appears to have foresworn the wig). The two remaining functions of significance to the judiciary that the Lord Chancellor retains are the protection of judicial independence and the appointment and discipline of judges (and the passage of the Crime and Courts Act has made his involvement in appointments less significant). The CRA says that a Lord Chancellor must be ‘qualified by experience’ but defines this so loosely (a person may have experience as a Minister, MP, lawyer or any ‘other experience the Prime Minister considers relevant’) as to render the requirement redundant: effectively, anyone can be Lord Chancellor if the Prime Minister agrees. In early interviews for the Judicial Independence Project, judges repeatedly emphasised that the major change to the office of Lord Chancellor would occur not when it was given to a non-lawyer but when the profile of the incumbent changed: when it moved from a big political beast at the end of his or her career to a politician on the way up. We crossed that Rubicon in September 2012 when the office moved from Ken Clarke to Chris Grayling and arguably the judges’ instincts have been borne out. Naturally sympathetic to the hawkish Home Office position rather than the traditionally dovish Lord Chancellor’s position on law and order, Grayling has not been slow to make his mark on issues from the rather severe cuts to Legal Aid to the restriction of judicial review and the eye-opening proposal to privatise part or all of the courts service. This is perhaps not surprising for a minister whose brief includes a large chunk of the former Home Office – the law-and-order-ish prisons and probation – and was picked for his experience as shadow Home Secretary.

Which brings us to a conclusion: if the Lord Chancellor does not really exist anymore should we not face this fact and get rid of the title and the legacy functions associated with it? This need not be considered a bad thing. The duty to uphold the independence of the judiciary in the CRA is given not just to the Lord Chancellor but to all ministers of the Crown and the Attorney General, Dominic Grieve, appears on occasion to speak to these kinds of issues (he has, for example, spoken to Grayling on the Legal Aid proposals in response to a letter written to him by a group of Treasury counsel). And there are others in government, Parliament and the civil service who work hard to maintain and support the courts and the rule of law. But perhaps the point is broader than that. Does the existence of the title ‘Lord Chancellor’ and its loose commitment in the CRA to the principle of judicial independence conceal the need for these others to step into the breach more frequently and more publicly? Do we need less personalised and more stable protections than the CRA provides?

Patrick O’Brien is a Research Associate at the Constitution Unit, University College London. 

Suggested citation: P. O’Brien, ‘Does the Lord Chancellor really exist?’, UK Const. L. Blog (26th June 2013) (available at http://ukconstitutionallaw.org).

7 Comments

Filed under Constitutional reform, Judiciary

Rogier Creemers: The Constitutionalism Debate in China

RogierOver the past few months, a heated debate about the role of the Constitution in Chinese political life has emerged. This debate comes in the wake of the 18th Party Congress and the handover of power to the fifth generation of leaders with Xi Jinping becoming General Secretary of the Party, and equally importantly, Chairman of the Party’s Central Military Commission. Before the handover, there were hopes that Xi, who was seen as more affable and less rigid than the wooden Hu Jintao, would bring political reform initiatives to a country in which social tensions are becoming rampant, were corruption is endemic, and scares about food security have led to worldwide panic buying of milk powder by Chinese citizens.

Those calling for reform, however, had to do so in cautious and circumspect terms, couched in language that would not directly contravene the Party’s core ideological pillars. A previous reform call, Charter 08, landed its drafter Liu Xiaobo both a Nobel Peace Prize and a prison sentence for subversion. Hence, the call for reform was made under the heading of “constitutional governance” (xianzheng 宪政). On New Year’s Day, the activist intellectual journal Yanhuang Chunqiu posted a New Year’s message, Constitutional Governance is the Consensus for Political Structural Reform, which claims that “Although the existing Constitution is not perfect in every way, as long as it is satisfactorily implemented, our country’s political structural reform will make a great step forward.” A few days later, the well-known outspoken newspaper Southern Weekend published an editorial, The Chinese Dream, the Dream of Constitutional Governance, which claims that “Only under constitutional governance will it be possible for the country to continue to become strong and wealthy, only under constitutional governance will it be possible for the people to become truly formidable. Only by fulfilling the dream of constitutional governance will it be possible to strive for national sovereignty abroad even better, and safeguard the freedom of the nation; will it be possible to even better strive for civil rights at home, and safeguard the people’s freedom. And the freedom of the country must, in the end, rest on the freedom of the people, it must rest on the fact that everyone may speak their hearts, and everyone may have dreams in their hearts.

Both articles were censored. In Yanhuang Chunqiu’s case, the website was taken offline for a number of days, while the Southern Weekend editorial was replaced by a more neutral text, allegedly through a decision of the Guangdong provincial censorship chief Tuo Zhen. By that time, the new leadership had already started deploying its own ideological campaign, that of the Chinese Dream of the great rejuvenation of the Chinese nation. This campaign is predicated on the notion that China is finally coming close to realizing the ideal of modernization after suffering humiliating colonial subjugation in the 19th and early 20th Century. The successes that have been reached so far are deemed to be largely due to the enlightened leadership of the Chinese Communist Party, and the ideological/theoretical system of Socialism with Chinese Characteristics.

Understanding this system is important in framing the discussion about constitutionalism. Some of its key components, while often informed by classical Chinese political concepts, clearly bear a Marxist imprint. In this discussion, the most important ones are monism, historicism and positivism. These interlinked concepts respectively refer to the idea that there is only one correct way to understand and evaluate systems in an epistemological and moral sense; the idea that history is predetermined and follows a necessary path; and the idea that the social world is underpinned by ‘laws of nature’ that can be understood, and used to manipulate society. The ultimate objective is to lead Chinese civilization towards a predetermined Utopia, which has at various terms been known as Communism, the Great Harmony, the Chinese Dream and the Harmonious Society.

This view strongly influences the Chinese concept of law in general and the Constitution in particular. As it posits that the future is predetermined and largely known, the legitimacy of rules and norms is the contribution they make to progress towards that future. Hence, they legitimize capricious and arbitrary policy decisions, as long as these can somehow be justified as “progressive”. In turn, this term is operationalized in, amongst others, cadre and official evaluation systems that measure performance in a limited, quantitative set of output indicators. Unsurprisingly, this leads actors up and down the hierarchy to behave strategically, in order to respond to the incentive structure in which they are placed, often resulting in corruption and arbitrariness.

Little room is left for rights in the Dworkinian sense, which are ‘trumps’, or entitlements to expectations of treatment that can only be denied or infringed upon with justified cause. This presupposes, however, an acceptance of the fact that often, legitimate interests in society legitimately conflict, and an equitable balance between them needs to be found. In Chinese monist political-legal system, however, such conflicts are often unmentionable, as they would seem to imply that economic exploitation still takes place, and that therefore, the Socialist project failed. Also, it would imply having to recognize that the benefits of crossing the river might not be shared by all, harming the project’s legitimacy.  Most of all, it would be beyond the pale to suggest that citizens need protection against the Party-State, as this – in the official view – only strives to serve the people. Rather, the view is that “contradictions” are caused by the fact that knowledge about society and development remains imperfect, and that these will be resolved in the end.

While the official point has been forcefully made in a number of theoretical and editorial articles in major Central journals and newspapers, the counterarguments are somewhat less clear. To a certain extent, this can be explained by the risks incurred by franc-parler. For example, the constitutional scholar Zhang Qianfan recently published an article in which he analyzed the preambles of different constitutions, concluding that it is not necessary to include references to specific persons or ideologies in a constitution. While this could be interpreted as removing references to Marx, Mao and the CCP from the Constitution, Zhang refrains from saying so directly. But there is a deeper question of thinking as well for those opposing the system. There are different levels at which dissent and protest can take place: from the individual actions of officials and cadres, past specific policies, to the institutional arrangements of the country and ending up with the fundamental philosophy that informs the structure of state and society. The official line claims that the basic philosophical foundations are correct, and therefore, so are the fundamental institutional structure and the general policies of the State. Nonetheless, circumstances change and knowledge increases, so in order to progress, specific policies must be adjusted flexibly. Any further imperfect outcome in society must therefore be the result of officials not implementing policies well, either because of corruption or because of a lack of sufficient knowledge and effort. The notion that it might be the very arbitrariness of policy (which in the public eye is often confused with corruption) that causes popular dissatisfaction is anathema.

Interestingly, a number of constitutionalist voices share a number of aspects of this official narrative, particularly where it relates to the claim to progress to an ideal society. This is, however, hard to reconcile with the increasing complexity of a modern society, where it is impossible to fully harmonize interests, values and outcomes, and it is necessary to develop channels for political negotiation and bargaining to share unavoidable harm and risk. In China, however, this point remains moot: whatever the chatter about constitutionalism, Xi’s leadership has manifested itself as strongly neo-Dengist: willing to engage in deep economic reform, but also to maintain political and social stability at all costs. Perhaps the leadership style goes even further back: a few days ago, the Standing Committee launched a rectification campaign in classic Maoist tradition, aimed at removing those Party members who are unwilling to forsake perks and privileges, but who want to toil and struggle for progress towards the Chinese Dream. But the nasty question will remain: when will the Party-State keep the promises that it made in its own Constitution?

 Dr. Rogier Creemers is a Rubicon Scholar at the Centre for Socio-Legal Studies and a Senior Fellow of St. Antony’s College, University of Oxford. He mainly researches Chinese media, communications and intellectual property law.

Suggested citation: R. Creemers ‘The Constitutionalism Debate in China’  UK Const. L. Blog (22nd June 2013) (available at http://ukconstitutionallaw.org)

1 Comment

Filed under Comparative law

David Mead: Real-ising Human Rights: On The Ground Protection Under The HRA Through Citizenship Education

davidmeadFloundering for an angle as a member of a panel looking at the way forward after the Bill of Rights Commission report (organised by the Human Rights Centre at Durham), I latched onto issues relating to effective protection and promoting a positive human rights culture. This post is on one aspect of that, something that must surely be at the heart of any sensible state strategy for delivering and promoting human rights: civic education and engagement. More specifically, I was interested in finding out about “Citizenship” lessons within secondary schools – with a personal interest as well. My son is in his first year at secondary school (Year 7) and my daughter will join him in September. Like many, I imagine, I knew of “Citizenship” classes  – that it was, or felt sure it was, part of the curriculum for 11-16 year olds… yet one year in, I was also fairly sure I had never seen any “Citizenship” homework nor even seen it feature on my son’s delightfully multi-coloured fortnightly planner. So, I set to work. This post is the result of some of those investigations.

Chapter 10 of the Commission’s report  “Promoting a better understanding of the UK’s obligations” is, at just over two pages, its shortest chapter. This is slightly strange given one key factor behind the majority’s call for a British Bill of Rights is the perceived lack of ownership. Of about 3000 or so responses to both consultations (of which about 1800 were postcard replies from two human rights NGOs), fewer than 20 made submissions specifically about that aspect of the Commission’s terms of reference, though about 100 more made similar calls for better public education to correct misperceptions about the HRA and the ECHR. More than half of these advocated more educational programmes, both for UK society generally and schoolchildren, and in a number of cases argued the need for access to sources of accurate, unbiased information to balance what they believed to be the myths surrounding the HRA. In that light, the Commission’s conclusion here represents a wholesale failure to address the issue at all – even if one raised only by a minority of respondents.

 We consider that the major contribution which we can make to this aspect of our terms of reference is our report itself, together with its annexes and the detailed responses to our consultations, which are available on the Commission’s website. In drafting the report we have been conscious of the need to make it as accessible as possible. We hope that anyone reading the report, who is not already expert in the subject matter which it covers, will at the very least gain a better understanding of the historical background and of the issues and arguments that give rise to a wide range of different views today.

The notion that the state has some sort of ongoing positive obligation to educate its citizens about the rights they are entitled to, to inculcate a sense of ownership and to instil the values of that state’s bill of rights is the Commission’s dog that didn’t bark. On the basis that there will be no change in this area at least, what can we expect our fellow citizens to know about how their rights are protected in the UK as a result of their formal education?

Citizenship was introduced into the secondary school curriculum in 1990. It became a formal statutory foundation subject in England in 2002, following the report of the Citizenship Advisory Group (the Crick report) in 1998, driven forward by David Blunkett when he was Secretary of State. In the remainder of the UK, “citizenship” remains a non-statutory subject (in Scotland, this applies to the whole curriculum, not just citizenship) and is generally not taught as a separate topic. The UK was one of the last western democracies to include “citizenship”, or something similar, in the formal curriculum (Spain was later, in 2006). By way of contrast, there have been elements of citizenship in the Lebanese curriculum since 1946 – albeit on differently constructed notions of “citizenship”.

In England, at key stage 3 (11-14) it is a foundation subject, along with all the others; for key stage 4 (14-16 or GCSE) it is foundation, alongside only ICT and PE – with maths, English and science as core – meaning there is a statutory programme of study up to school-leaving age at 16. To that extent it seems better positioned than say modern foreign languages (MFL) or humanities where schools need only offer one of e.g. history or geography. It is said to be the fastest growing GCSE subject, with some 100,000 estimated annually to have take it in the last couple of years. The secondary curriculum in England (i.e. both KS3 and KS4), revised after five years of operation in 2007 and with a planned revision – alongside all GCSE and secondary subjects from 2014 onwards – identifies three key substantive concepts: democracy & justice; identity & diversity; and rights & responsibilities. There is an interesting longitudinal study 2001-2010 on the effects of citizenship education conducted by the National Foundation for Educational Research available here indicating inter alia that political participation and likely future participation increase with age for those who have taken or studied citizenship.

In the remainder of this post, I will explore some concerns with how citizenship is taught – largely in England – focusing on the extent to which it provides pupils with a framework for understanding how rights are protected in the UK. Knowing that it has been a compulsory topic in secondary schools all the time I have been teaching Public Law to 1st years, it has always been a source of bewilderment why so few students had any idea of the Human Rights Act. What follows might explain to other puzzled Public Law lecturers why that is the case. Of course, one immediate problem is that Citizenship is a required subject only at maintained, state schools. Academies are not bound by the national curriculum – that is one of their USPs to potential parents and possible teachers – and so as they proliferate, we will likely see fewer pupils leaving school at 16 with any understanding of their human rights.

First, although conferring on it foundation subject status at KS3 had all-party support, the difference between citizenship and say geography, history, music or art – on which it is on ostensibly even terms – is that only citizenship was introduced with a “light touch”. The curriculum provides, at best, a framework; there is no minimum weekly contact requirement, as there is for PE. Evidence is that very few have a dedicated hour per week; most schools seem either to “drip” it into other subjects such as Personal, Social and Health Education (PSHE), as at my son’s school (or in RE where this week he has been looking at the UDHR), or to provide concentrated “enrichment days” once or twice per term. In Scotland, by contrast, (with its eight curriculum areas), citizenship – or more accurately global citizenship – is avowedly cross-curricular, so there is a clear and concerted objective, led from the top, that elements of it infiltrate the whole curriculum. That does not seem to be the case in England. There is little or no sense in which pupils understand they are being taught “citizenship”; it does not feature as a named topic on my son’s timetable and nor is there anyone on the staff who is named as the contact, and his most recent school report made no mention of anything even approaching it, and this at a state secondary school rated “outstanding” by OFSTED in its last two inspections. My very small sample of friends’ children at different state schools and friends who are state schoolteachers told a very similar tale. One – just about to embark on GCSEs – said “no, never heard of it”, despite the fact (see above) it is one of very few foundation requirements, and another thought they’d done something about voting in PSHE. As with all subjects, provision is patchy but at least those taking geography know they’re studying geography – and, broadly, most of us know what that involves:  ox bow lakes and Cornish tin mining unless matters have moved on progressively since 1981! “Citizenship” is not only a fairly indeterminate title but when mixed with sex education and basic financial literacy, it seems fairly likely the immediacy and relevance of a domestic bill of rights – to the life of an ordinary 14 year old – is a little lost, or relegated.

Resources are limited, scarce even. Those I have spoken to at the Association for Teaching Citizenship report that only somewhere between 200-250 teachers undertake PCGE or similar training in Citizenship in any one year (and on specialist provision of courses, see OFSTED “Professional Development for Citizenship Teachers and Leaders”, 2009). That’s out of about 26,000 in total on PGCE courses, though admittedly that figure is for both secondary and primary school. In most, certainly many schools, teaching is likely to fall on those perceived to have the closest connection to the subject (at best) – those with politics degrees or who teach politics at GCSE – and (at worst) on those who take other subjects with low take-up, and who need hours to be filled. For those teachers keen to devise lessons – perhaps just to find out what the topic embraces, it having been landed on them in June for the next September – and looking for external support, there is remarkably little on the discrete area of British human rights. “Right here, right now” is a 2009 collaboration between Amnesty and the BIHR and the DCFS and MoJ – and for KS3 only, i.e. 11-14 year olds – but that is basically the limit. The materials at The Citizenship Foundation, partly funded by the Law Society and partly by the Cabinet Office’s Office for Civil Society (part of the Big Society idea), has little of relevance to the study of human rights under the HRA. There is, for example, on its website a useful short guide entitled “HUMAN RIGHTS ImpACT” but it dates from 1998, as the HRA was making its way through Parliament. There has been very little direct government support, financial or otherwise, since the financial crash of 2008 when – I was told – the Ministry of Justice School’s team was dismantled. A search (on 17th June) for any publications using the term “citizenship” on www.gov.uk against the MoJ produced no hits whatever. Neither do any of the various organisations within the Ministry of Justice indicate anything even vaguely connected with education or schools, let alone citizenship – despite its responsibility at a political level for almost the whole of what the curriculum covers.

This contributes to a third problem: the skew of materials, and teaching, is towards international human rights. The gap in resources has been filled by groups such as Amnesty; the evidence I have seen is that sessions on child soldiers, child labour, international humanitarian law or on terrorism – as examples of human rights “in action” tend to proliferate. The first two of course are understandable, given the likely sympathies and empathies that secondary school pupils would have. The last really does amplify the risk of normalising exceptionalism at the cost of the commonplace. What it means is that a 14 year old in Hackney is more likely to know about international norms and standards during wartime – even if not in those terms – and UN-inspired provisions than they are about civil and political rights generated closer to home and of more obvious everyday resonance. This gap is even more evident outside England. In Wales, there is no separate subject of Citizenship – many of its elements are subsumed within Personal and Social Education, not part of the national curriculum but within the school curriculum. The framework or guidance on PSE for 7 – 19 year olds makes not one mention of the HRA for KS 3 and KS4. The scope of rights is limited to the UN Convention on the Rights of the Child and on the Universal Declaration. In Scotland, the curriculum is organised around four “capacities” – including responsible citizenship – and citizenship is cross-curricular but, again, there is nothing on domestic or European human rights, or the HRA, bar a single page on the wider topic of political literacy.

The last concern is in many ways the most worrying of all, that of the content – and the misunderstandings it positively engenders and reinforces. The explanatory notes accompanying the current KS4 curriculum, when referring to human rights, assert that “students should explore the roles of the United Nations and the European Union in securing human rights”. There seems little hope of avoiding the “all European together” assemblage, whether deliberately constructed or not by The Daily Mail, if teachers – and then their students – are not taught the difference between the different types of Europe. It became clear, during the consultation just ended, that Citizenship was not going to be downgraded within the curriculum – it will retain its compulsory status. This was met with relief by teachers’ groups. However, for those interested in citizenship as a means of embedding a rights-respecting culture and of laying the bedrock for promoting a better understanding of the issues stand to be disappointed. After its implementation in 2014, if the consultation portends anything (see National Curriculum Framework pp.149 available here), there will be a clear shift away from the concept of “rights”. The draft curriculum upholds the “democracy & justice” strand but seems to eliminate entirely the idea of (human) rights. The draft sets out the purpose of a high quality citizenship education as being

to provide pupils with knowledge, skills and understanding to prepare them to play a full and active part in society. In particular, citizenship education should foster pupils’ keen awareness of how the United Kingdom is governed and how its laws are made and upheld. It should also prepare pupils to take their place in society as responsible citizens by providing them with the skills and knowledge to manage their money well and make sound financial decisions.

Furthermore, they should be taught about “the precious liberties enjoyed by the citizens of the United Kingdom”. The very rejection of any notion of positive rights, obligations owed by the state – and needing justification for any intrusion – might be seen as laying the ground for a reversion to common law Diceyan residualism That would dovetail with where we came in, the future of a British Bill of Rights. If Citizenship teaching is anything to go by, we should be very wary about what might happen when, in Mark Elliott’s words, the Commission’s report does, eventually, leave the political long grass.

David Mead is Professor of UK Human Rights Law in the Law School at the University of East Anglia

Suggested citation: D. Mead ‘Real-ising Human Rights: On The Ground Protection Under The HRA Through Citizenship Education’  UK Const. L. Blog (18th June 2013) (available at http://ukconstitutionallaw.org)

3 Comments

Filed under Human rights

Keith Ewing, Joan Mahoney, and Andrew Moretta: Surveillance and the Liberal State

EyeThe recent revelations by the Guardian about the ‘United Stasi of America’ appear to have disappointed, surprised and even shocked a number of people, who ought to know better.   The British government has responded in a predictably incomplete way, denying any wrongdoing on the part of our Security State, taking cover behind the robustness of our legal protections against abuse of the citizen’s right to privacy.

In the course of work that we are currently undertaking on civil liberties during the Cold War, it is clear to us, however, that activity of this kind is part of the DNA of the liberal state.    The MI5 files held in the National Archives provide an insight into the surveillance activities of government, though we are not suggesting that these files give a complete or even an adequate insight.    By no means all the security files have been released, and it is impossible from the catalogue to say how many have been withheld or destroyed.   There is a sense that files have been released very carefully and that they have been weeded just as carefully, so that historians are restricted to officially sanctioned data that will cause minimal embarrassment to the Security Services.    We are being invited to write the history they want us to write, about the people they want us to write about, based on the data they want us to find.

What is striking, nevertheless, is the suggestion to be found in the contents of the files that surveillance was taking place on a massive scale.   So although only a sample of files has been released, careful reading of these files does allow for jigsaw pieces to be uncovered, helping to build a picture larger than the sum of the files themselves.   Thus many files refer to other surveillance targets incidentally, because – for example – they were present at bugged meetings, the references to these individuals also containing a reference to their PF number (which we assume is their Personal File number).    So a reference to Gerald Gardiner in the solicitor Harry Thompson’s file reveals that what appears to be the future Lord Chancellor was PF 723,729.   This reference was in a minute of a phone call intercepted in 1946; we have encountered other PF numbers in the 1960s in the 800,000s.

In the last case the individual in question was Ruth Taylor (PF 815,946) who had the good fortune/misfortune to be the niece of John Gollan, sometime General Secretary of the Communist Party.   Her file appears to have been destroyed, along with the files of all the other people related to John Gollan about whom a file appears also to have been kept:  his father, his wife, his brother and his three sisters.  We assume that files were kept on each of the foregoing because their names and PF numbers all appear on the front of John Gollan’s file in some weird cross-referencing system.   We are trying to make sense of this, and trying to understand whether it can really be the case that by the mid 1960s, as many as 815,946 people were or had been under surveillance.   Perhaps Security Service lawyers will be able to offer an alternative explanation in the comment section below.

What is also striking about the files is the nature of the information that is retained and now published, in relation to people who were ‘innocent’ of any offence.   So we find transcripts of intercepted phone calls about the marital problems of a Communist Party employee (and the recording of tittle tattle of a personal nature about her apparently feckless husband); claims that a sometime Member of Parliament enjoyed the extended embrace of a prostitute; and reports of intense surveillance of a barrister (later to become a High Court judge) who was revealed incidentally to have had a French mistress in the West End.    The surveillance in this last case – for reasons that were wholly groundless – included a period during which the individual in question was followed wherever he went, his phone tapped and his mail intercepted, before the penny dropped that a crass mistake had been made.   That has not prevented the fruits of that surveillance to be published.

But of course this is only a very small part of it.   It was the political stuff they were really after.   In the case of selected parliamentary candidates and MPs there are detailed Special Branch reports of election meetings and election campaigns.   The latter included details of the identity (and PF numbers) of the individuals in the constituency who displayed election posters supporting a candidate, as well as the owners of ‘motor cars’ used during the campaign (for example to take electors to the polling station).   Yet it was not only politicians, lawyers and academics.   Other prominent figures were also the target of surveillance, including Kingsley Martin (PF 41,632), a leading pacifist who was editor of the New Statesman.   According to a Special Branch report, Mr Martin addressed a meeting in London on 27 March 1952 organized by the London Anarchist Group.   In the presence of 650 people, Mr Martin said that:

There was a creeping plague of injustice and tyranny evident in the world today . . . The Middle Ages were almost kindly in comparison with Europe today, There were however a few patches of freedom left.   He spoke of the methods adopted in Spain of making prisoners confess through cruelty . . . and said that such confessions were accepted at the trials.   It was the law in Spain that people must adopt themselves to the existing regime . . . . A steady policy is needed of encouraging resistance in Spain, Franco is now sensitive to criticism as he wants to join the Western Community.  We must force the Government to say to the Spanish government ‘As you are today , the British People will not take you as allies and friends’.

That was enough to justify surveillance and retention.    It seems they were trying to work out whether he was a communist or not.   If so, so what?   Like countless others, Martin’s foreign travel was monitored – not only at the airport where surreptitious Special Branch baggage searches took place, but also on arrival.   His visit to Kenya in November 1952 caused some concern for the diplomatic corps there, a British official contacting London to say that Mr Martin’s ‘outspoken views on racial discrimination [to which he was opposed] and remarks that terrorism can not be attributed to Mau Mau have naturally irritated local authorities’.   A security check was requested, following which the reply came that Martin was ‘not known to be a member of the Communist Party’, but that he was a pacifist who had for a long time been an active member of the Union of Democratic Control and was probably still a member of the National Council of Civil Liberties (about which there was also a file in the OF series; the NCCL appears to have been OF 561/1).

Which brings us back to the confected public reaction to the allegations about the US and UK security agencies, a reaction that reveals remarkable naivete on the part of those who are ‘disappointed, surprised or even shocked’.   A day at the National Archives will quickly reveal that the British state has been engaged in massive surveillance of individuals and organisations on a potentially eye-watering scale, and in the process stored information on people’s personal lives that is now being fed – intentionally or otherwise – into the public domain to tarnish their reputations posthumously, perhaps in the process revealing to the wider public details about them that is unknown to their surviving families.   Apart from the above, we also have detailed character assassinations of those now deceased, including in at least one case the wife of another prominent lawyer, the latter having been very closely watched for very many years.

Quite apart from the absurdity of William Hague’s suggestion that the only people now under surveillance are the guilty and that law abiding citizens have nothing to fear (to which Paul Flynn MP had the perfect answer), the Daily Mail reader who believes such nonsense might want to think again.   It may well be true, and it may well be inappropriately cynical to believe that the government’s assurances are about as valuable as HBOS shares at the time of the banking crisis.    For as Mr Hague reminded us, we have robust legal procedures now in place, including the much – celebrated Human Rights Act 1998 and the culture of liberty it has blown through government departments.   There are no doubt some amongst us who will wish to assume that as a result no such surveillance goes on – whether by or on behalf of the British government, and that as a result the US Constitution is a poor substitute for our timely incorporation of the ECHR into domestic law.

Keith Ewing               Joan Mahoney           Andrew Moretta

Suggested citation:K. Ewing, J. Mahoney, and A. Moretta ‘Surveillance and the Liberal State’ UK Const. L. Blog (16th June 2013) (available at http://ukconstitutionallaw.org)

4 Comments

Filed under Human rights

Jack Simson Caird: A Proposal for a Code of Legislative Standards?

jackOn the 20 of May the House of Commons Political and Constitutional Reform Committee (the PCR) published its report on legislative scrutiny standards titled ‘Ensuring standards in the quality of legislation’. The Report contains two eye catching and ambitious proposals for parliamentary reform: the creation of a joint committee on legislative standards and the adoption of a code of legislative standards. This blog is about the second of these proposals. The proposal is a significant one, and if implemented it would dramatically improve the information available to parliamentarians in their scrutiny of government bills. The PCR’s code is in effect a series of questions and demands for information relating to the content and to the timetable of a bill, that the government would answer within the explanatory notes to a bill. In this blog post, I draw attention to the code proposed by the PRC and I offer a critique of their approach, and in particular of the decision not to include substantive legislative standards.

The code, within Annex A of the report, states:

‘The purpose of this Code is twofold: first to set standards based upon existing evidence of good practice that ensures quality legislation, and second, to set out the information that Parliament expects to be provided for the purpose of scrutinising legislation.’

It is clear that the Code fulfills the second of these goals. The code contains a total of 37 demands for information, and if answered in good faith the responses to these demands would provide parliamentarians with much of what is needed for effective scrutiny of a bill. For example, the Code asks:

‘(c) Does the bill in whole or in part affect a principal part of the constitution, and

does it raise an important issue of constitutional principle?’

  (r) Is the bill considered by the Government to be a piece of emergency/fast-track

legislation, and if so, why?

(v) Does the bill include, and if yes, in what clauses:

(i) Purpose or overview clauses,

(ii) New definitions of existing legal concepts,

(iii) Index clauses for definitions,

(iv) Formulae,

(v) Any new drafting techniques or innovations?’

If proper answers to these questions were included in the explanatory notes it would in effect accelerate the scrutiny process. Parliamentarians would have, at the outset, much of the basic information needed to scrutinise the detail within a Bill. Other significant standards include a demand for: (i) Provision of an informal “Keeling-like” Schedule (not to form part of the bill) where substantial amendments will be made to an earlier Act, (k) The policy objectives of the bill, (w) A list of any new criminal offences and/or civil penalties created by the bill, and a summary of how they relate to existing offences, (z) a list of clauses with retrospective application, (bb) a list of Henry VIII powers. Each of the standards has been carefully crafted and draws on experiences of a number of key participants in and observers of the scrutiny process, and the Committee should be commended for producing such a well drafted and researched list of standards. Too often the legislative process is a game of cat and mouse between the scrutineers within Parliament and the government, whereby the justification for a Bill or specific clauses is gradually and painfully extracted from the government, when in reality is should be presented at the outset. The adoption of this code would remedy this defect, and would allow parliamentarians to use their precious time to examine the justificatory basis for the Bill from the outset, instead of spending it working out what the government is trying to achieve.

The problem with the Code proposed relates to the extent it fulfills the first of the two goals it set itself: ‘to set standards based upon existing evidence of good practice that ensures quality legislation.’ The norms within the code set certain expectations as to the information that should be supplied by the government, and in doing this they hint at what legislation should or should not do, for example standard (u) asks for the following:

In relation to large multi-topic bills (aka. omnibus/portmanteau/Christmas tree bills), an explanation as to how the parts of the bill bring into effect the bill’s central policy purpose and why it cannot be separated into individual bills

The implication is that there is a presumption that ‘large multi-topic bills’ should not be used, but the standards resists the temptation to be so bold as to actually say that, and instead it asks for an explanation for why the government has decided to depart from the norm of single topic bills. Why not demand more? The code could say: large multi-topic bills should not be used, any departure from this norm must be justified in a statement in the explanatory notes which explains why the Bill could not be separated into individual bills. This highlights the root of my main problem with code, it does not contain any substantive legislative standards. None of the standards included state in clear terms what legislation should and should not do.

A legislative scrutiny standard is not a legally enforceable rule, it is a soft law instrument which is designed to inform participants in the legislative process. As it is not legally enforceable, any standard that relates to the content of legislation does not prevent the government ignoring it, just as they might ignore those within the code proposed by the PRC. The advantage of stating that ‘large multi-topic bills’ should not be used, is that it communicates a stronger message, one that is commensurate to the significance of the principles to the United Kingdom’s parliamentary democracy. There are undoubtedly scenarios where ‘large multi-topic bills’ might be justified, but the obligatory language could equally be used to set a requirement that the government should explain in precise terms the basis for its decision to depart from a particular norm. Ultimately, the end result in terms of information produced by the government might be the same, but message sent is different.

The remit of the Australian Senate Scrutiny of Bills Committees contains a number of substantive legislative scrutiny standards. The Senate committee is charged with examining all bills and reporting on whether they:

  1. trespass unduly on personal rights and liberties;
  2. make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers;
  3. make rights, liberties or obligations unduly dependent upon non-reviewable decisions;
  4. inappropriately delegate legislative powers; or insufficiently subject the exercise of legislative power to parliamentary scrutiny.

These examples of substantive legislative scrutiny standards demonstrate the strength of the message that such standards can communicate. While it is clearly not a like for like comparison, the contrast between the tone and approach of the standards within the Senate Committee’s remit and those within the Code is striking.

The PCR’s Report explains the reasons behind the decision to avoid obligatory language and substantive standards. While the Report recognises that ‘an objective set of quality standards’ is necessary ‘to compare and judge bills and Acts’ (para 55), it explains that it is important that the standards within the code are ‘politically neutral’ (para 58). It is axiomatic that the Code should not be seen to be in any way party political, but I am not sure that this is a sound basis for excluding substantive scrutiny standards from the Code or for deciding to avoid a ‘subjective’ drafting style. I would argue that the rationale for setting legislative scrutiny standards is to articulate a vision of how the legislative process should work, based upon an interpretation of the norms that are fundamental to the United Kingdom’s parliamentary democracy. These norms are not as politically controversial within Parliament as other political ideas, but they nonetheless have implications for the content of legislation, as well as for the nature of the information presented by government to Parliament.

The report also states that the standards should ‘require policy to be explained by reference to the contents of the bill, without questioning the substance of the policy (para 58)’. I would suggest that this division between the contents of a Bill and the substance of a policy does not stand up to scrutiny. For example, if the government introduces a bill which grants a minister an unfettered statutory power to abolish by order, with little parliamentary oversight, a public body established by primary legislation, where does the contents of the Bill end and the policy start? The legislative means are part of the policy. In other circumstance it may be possible to separate the two, but the fact that is not a reliable distinction means that it should not provide the basis for the design of general legislative standards.

This anxiety to be seen to be political neutral and to avoid commenting on the merits of legislative proposals is unwarranted because it dilutes the message communicated by the standards. One of the basic rationales of soft law legislative scrutiny standards is to create a set of normative principles that can be used by parliamentarians to engage in legislative scrutiny. A code should communicate to parliamentarians what the authors believe to be the principles that should be followed by government within legislative process. In turn this should create an expectation that if a Government wishes to depart from such a principle then it should strive to justify the basis for such a departure. However, the language of justification was rejected by the PRC: ‘where proposed or existing scrutiny list criteria suggest requiring “justifications” to be provided or comment upon the “necessity” of provisions, we consider that such terms risk creating the appearance of subjectivity and have therefore altered the wording to be more neutral (para 61)’. I do not think that a desire to be ‘neutral’ offers an adequate basis for omitting these terms. This language is needed to communicate the significance of departing from the norms in question.

It should be noted that the PCR’s report states that their proposal should be seen as beginning of a debate over the value and content of such a code. The Code they have proposed is an invaluable contribution to the debate over the role that soft law scrutiny standards should play in the legislative process. However, I would argue that there is also a role for other types of legislative scrutiny standards that use a different approach. To that end, I am involved in a Constitution Unit project, with Professor Dawn Oliver and Professor Robert Hazell, which aims to produce a code of legislative scrutiny standards based on those articulated by the House of Lords Select Committee on the Constitution in their scrutiny reports since its establishment in 2001. Many of these are substantive, and yet politically neutral in the sense that they are not controversial and state widely accepted constitutional principles. We hope to produce the code shortly.

Jack Simson Caird is a doctoral student at Queen Mary University of London.

Suggested citation:  J. Simson Caird ‘A Proposal for a Code of Legislative Standards?’  UK Const. L. Blog (14th June 2013) (available at http://ukconstitutionallaw.org)

5 Comments

Filed under UK Parliament, Uncategorized

Tom Hickman: Turning out the lights? The Justice and Security Act 2013

TomThe Justice and Security Act 2013 (“JSA”) received royal assent on 25 April 2013 and Part 2 of the Act is expected to come into effect in July 2013. Part 2 makes fundamental changes to UK law in any civil case involving national security issues by creating an extraordinary and seductive alternative to public interest immunity (“PII”) procedure. The alternative, known as Closed Material Procedure or “CMP”, represents a carve-out from basic principles of equality of arms and open justice by allowing courts to consider any material the disclosure of which would be “damaging to the interests of national security” without such material being disclosed to the non-Governmental party to the case.

The significance of the JSA from a rule-of-law perspective can hardly be overestimated, however infrequently it may (or may not) be used. During the final debate on the measure in the House of Lords (26 Mar. 13 Col. 1032), Lord Brown, the recently retired Law Lord and former Intelligence Services Commissioner, warned that the “legislation involves so radical a departure from the cardinal principle of open justice in civil proceedings, so sensitive an aspect of the court’s processes, that everything that can possibly help minimise the number of occasions when the power is used should be recognised…..”. Despite this, the power is a seductive one for Government and even for the courts. It enables the Government to place material before the courts without risk of public exposure or scrutiny and in the knowledge that it shielded from challenge because evidence cannot be adduced to respond to it (the other parties not knowing what it is). Judges will be attracted by the fact that it enables them to see all the evidence relevant to the decisions they have to make.

The operation of the JSA will no doubt be the subject of close attention by Governments around the world, not least those that have inherited the PII system.

The passage of the Bill

This blog completes a trio of posts on the passage of the Justice and Security Bill focusing on the provisions relating to CMP (undoubtedly the most significant and controversial part of the JSA). When the Bill was unveiled I drew attention to various ways in which it failed even to correspond to the objectives that the Government had set out in its Green Paper on Security and Justice

The Government’s main objective was stated to be to increase judicial scrutiny of the conduct of the Intelligence Services by enabling courts to consider material that would otherwise be excluded altogether from civil proceedings by the operation of PII. Furthermore the PII system was said to be doubly unfair: it was unfair, it was said, that the Government could not defend itself when its defence involved reliance on intelligence material that could not be disclosed and it was also said (through gritted teeth) to be unfair to claimants who could not prove Government illegality without reference to such material.

However the prospect of secret hearings to determine ordinary civil cases provoked very strong objections of principle from sections of the legal profession, civil liberties groups and wider society. They argued that such a regime is flatly contrary to the rule of law and natural justice.

Leaving aside these, fundamental, objections, the Bill that was introduced by the Government was strikingly lopsided: it would have enabled the Government to apply for CMP when it suited the Government to do so; the courts would have had no power to refuse a Government request for CMP in any case involving national security sensitive material; and, what is more, neither the courts nor other parties in the case would have had power to invoke CMP in cases in which it would have been contrary to the Government’s interests for the court to look at the material.

Such lopsidedness was so extravagant and indefensible, including when tested against the Government’s own stated objectives, that the Government must have expected to give way on most if not all of these issues and may have included such provisions in the original Bill to draw fire from other issues of more concern.

Unusually, the Bill was introduced in the House of Lords rather than the Commons. And the House of Lords, following a largely impressive debate which included important contributions from distinguished lawyers as well as intelligence experts, removed the lopsided provisions from the Bill, most importantly freeing the hands of the courts to decide whether to use CMP rather than this being in the hands of the Government. The House of Lords was widely hailed at the time as having inflicted a painful bloody nose on the Government. But I suggested in my second blog that this was not in truth much of a defeat for the Government.  I suggested that if the Bill was to be enacted two further protections were necessary: the retention of the Wiley balance and the introduction of a mechanism for a full review of the legislation.

When the Commons opened its deliberations on 18 December 2012 the Government accepted most of the changes that had been made. Kenneth Clarke, the Minister responsible for the Bill, stated in almost his first breath that the, “the people who moved those amendments [in the Lords] were pushing at an open door in terms of judicial discretion”. Perhaps most importantly, the Government accepted what has become section 6(5) of the JSA, which provides that it is a condition for the use of CMP that the Court is satisfied that its use in any particular case is “in the interests of the fair and effective administration of justice” (s.6(5)).

The Government refused to accept a requirement inserted by the House of Lords that CMP could be used only if a fair determination of the case could not be reached by any other means. After lengthy debate in the Commons, this provision was removed and a last-ditch attempt by the Lords to re-introduce it, when the Bill returned there, failed. The Government argued that the “last resort” requirement imposed an unwarranted fetter on the discretion of the Judge as when to use CMP. The irony that the Government had initially resisted judicial discretion did not seem to faze it. The Government was particularly concerned to ensure that a PII process does not have to be completed before CMP is ordered. It argued that in litigation such as the Guantanamo Bay case (see Al Rawi v Security Services [2012] 1 AC 531), which involved tens of thousands of potentially sensitive documents, the courts should be able to relieve Ministers of undertaking a PII exercise by making a CMP order instead.

However this argument is not persuasive. To begin with it departs from the Government’s own justifications for CMP—accountability and fairness—and instead rests a case for use of CMP on grounds of administrative convenience. Administrative convenience is not a good argument for departing from core natural justice rights and the established constitutional discipline of PII.

The administrative convenience hand is also over-played. It will still be necessary for the laborious process of document review and redaction to be undertaken when CMP is used. It is true that the Wiley balance (to which we will shortly turn) will not be applied to any of the documents. However it is precisely the fact that the Wiley balance is not applied to documents when a CMP is used which is such a powerful reason for CMP being a last resort that occurs only after a PII exercise has been conducted to enable material found to be properly covered by PII to be considered by the court. Notably those of their Lordships in Al-Rawi v Security Services who thought that the common law could be developed to allow CMP in exceptional cases made clear that this could only be a last resort after the completion of PII. This was at least in part to ensure that the departure from fairness and equality of arms inherent in CMP would be kept to a minimum.

It is true, as the Government pointed out, that PII usually involves a Minister personally reviewing every document over which PII is claimed and that this is not the practice when CMP is used in statutory contexts, but if personal review of every document is unmanageable in a particular case, this gives rise to an argument for a modification of the PII process rather than being an argument for using CMP as an alternative.

As I have said, the Government’s arguments won the day on the “last resort” issue, but the effect may be limited. The Government amendment did not go as far as to prevent the courts from insisting that PII exercises are gone through before considering CMP. This will be a question for the court in each individual case. There was also some merit in the Government’s general argument that the courts should have the fullest discretion to decide what is in the interests of justice in any individual case. It is impossible to predict all of the circumstances in which need for CMP might arise and a last resort provision could have had unintended consequences, such as in cases of urgency or where the parties consented to a CMP.

This question, as to when it will be in the interests of the “fair and effective” administration of justice to use CMP in ordinary civil proceedings, and the circumstances in which CMP can properly be invoked, will be the first important battleground between the Government and claimants. It looks likely that it will be considered in a number of cases almost as soon as Part 2 of the JSA comes in to effect. A great deal turns on the courts’ answer to this question.

A further important amendment that had been made by the House of Lords enabled a non-Government party to a case to apply for a CMP if that party requires documents that would otherwise be covered by PII in order to prove its case.  After initial Government resistance, this was retained. Section 6(1) and (4) of the JSA enable a court to use CMP on the application of any party or at the courts’ own motion, in a case in which national security sensitive material is relevant.

Furthermore, the Government brought forward a welcome additional protection which is now found in section 7, JSA. This provides that courts must keep the need for CMPs under review and “may at any time revoke” a section 6 declaration “it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings” (s.7(2)). The “fair and effective administration of justice” is thus not only the trigger for CMP but is also a condition for terminating, or exiting, CMP.

The Government also bowed to pressure to insert clauses requiring information about the use of CMPs to be made public and for a review the operation of the system. Section 12 JSA requires the Secretary of State to report on the use of CMP every twelve months, including the number of cases in which it has been used and on the application of which party. Section 13 requires the Secretary of State to appoint a person to review the operation of the provisions relating to CMP after five years. These provisions provide salient oversight mechanisms and an important degree of transparency about how widely the CMP system is being used in civil cases. But just as importantly, sections 12 and 13 disincentivise over-use of the CMP system and will hopefully make the Government more reluctant to make CMP applications than it might otherwise would have been.

The Wiley balance issue

Let us then turn to the Wiley balance, which I have identified as a key issue in this and previous posts. The Wiley balance reflects a key constitutional principle, first recognised in England by the House of Lords in Conway v Rimmer (previously in Scotland) and subsequently re-affirmed by their Lordships in Ex parte Wiley, from which it takes its name. This principle is that the interests of secrecy do not act as a trump card which the Government  can play to resist disclosure of documents in legal proceedings. The courts must balance the interests in secrecy against the interests of justice, including open accountability, in deciding whether the documentation should be disclosed.

This balance is not applied in the statutory contexts in which CMP is currently used—in particular in SIAC, under the TPIM Act 2011 and in the Investigatory Powers Tribunal. In these contexts where the Government asserts that disclosure of evidence would be contrary to the public interest, the court or tribunal must not require its disclosure if it agrees that some harm to the public interest could result. Absent the Wiley balance whole swathes of information are not disclosable in these contexts even where the impact on national security would be relatively slight or remote but the interests of justice in disclosure are overwhelming. The result is that the majority of the evidence in a case, and often if not usually the entirety of the Government’s factual case, remains undisclosed and is considered in closed (subject to a limited AF (No 3) gist in TPIM cases). I gave the vivid example of the CC & CF case in my previous blog.

It is this system that is now contained in the JSA. It works in the following way. Upon the application of a party or of its own motion the court has a discretion, under section 6(1) of the JSA, to declare the proceedings are proceedings in which CMP can be used. At this stage, as emphasized above, the court can weigh the interests of justice and it must decide whether CMP would further the “fair and effective” administration of justice. But once a  section 6(1) declaration has been made section 8(1)(c) provides that rules of court “must secure” that if the Government applies to withhold material from a party and to adduce it by way of CMP, the court “is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security”. Therefore once the CMP trigger has been pulled, the court loses its power to order disclosure of sensitive material where this is required in the interests of natural justice or openness. Once the section 6(1) declaration is made, the court can bring no balance of interests to bear in an application for material to be considered in a CMP and is required to approve the withholding of such material from the non-Government party.

The importance of this point can be illustrated by reference to the Binyam Mohamed case [2011] QB 218. In that case CMP was used in judicial review proceedings with the consent of the parties. However unlike in the statutory contexts in which CMP is used, PII principles were applied, including the Wiley balance. This played an important part in Court of Appeal’s decision to disclose information that revealed just how much UK intelligence officials knew about the mistreatment of Mr Mohamed whilst detained in Pakistan, based upon reports supplied to them by the CIA.  The Court of Appeal made public the reasons for the Divisional Court’s finding that UK officials had been improperly involved in the wrongdoing of foreign officials. The judgments of Lord Judge CJ and Sir Anthony May P emphasised that the balance between secrecy and open justice came down in favour of the latter. In addition to this, because the Government had applied the Wiley balance to all sensitive material and judged that there was, on balance, a public interest in disclosure of a considerable amount of it, the Government had disclosed important  information about the activities of the Intelligence Services as well as material relating to the CIA’s activities in respect of Mr Mohamed, including information deriving from the CIA itself (e.g. see [164]-[165]). This included for instance the fact that Binyam Mohamed had been the subject of rendition – a fact asserted to be secret by the CIA in US proceedings.

The Government rejected calls to build the Wiley balance into the JSA to avoid the possibility of repeat of the Binyam Mohamed case. An amendment that would have introduced the Wiley balance was defeated in the Commons, just as it had been in the Lords. But the debate on this issue in the Commons was ill informed. The Government argued that the Wiley balance simply had no relevance in the context of CMP because there is no question of damage to the interests of justice by material being excluded from the proceedings altogether. This failed to acknowledge the important role of the Wiley balance in protecting open justice, as demonstrated by the Binyam Mohamed case, as well as the fact that the evidence cannot be effectively challenged (including by submitting counter-evidence) if the excluded party does not know what it is.

It was also said that only a tiny amount of evidence would be subject to CMP. Sir Malcolm Rifkind MP, current Chair of the ISC, rejected analogies with Kafka on the basis that, “We are talking about cases in which the vast majority of evidence will be heard in open session. If closed material procedures do apply, they will apply usually to a very modest part of the total evidence.” On the contrary, given that the Government usually refuses to confirm or deny anything at all about the activities of the intelligence services, all of the factual evidence other than the allegations advanced by the aggrieved individual are usually kept entirely secret where CMP applies under statute because no balance of interests can be brought to bear.

The Government’s refusal to accept the Wiley balance was also flatly inconsistent with its often repeated assurance in Parliament and the media that the operation of CMP in civil cases would not result in any material that is currently disclosed being kept secret. For example, James Brokenshire MP, Minister for Crime and Security, stated at Committee stage on behalf of the Government:

“Let me be absolutely clear: in practice, nothing in these proposals will enable evidence that is heard in open court under the present arrangements to be head in secret in the future. That means that the claimant will continue to have access to at least the same level of information as is given under PII.” (31 Jan 2013, col. 150).

 As my example of the Binyam Mohamed case demonstrates, this is straightforwardly wrong. The disclosures made in that case about the activities of the Intelligence Services and the treatment and rendition of Mr Mohamed would not have been made if CMP under the JSA had applied.

The JSA does, however, provide at least the possibility of judges being able to expose Governmental wrongdoing when CMP is used. The potential is opened-up by section 7 which, as we have seen, enables courts to exit CMP when it is no longer in the interests of the fair and effective administration of justice. If serious wrongdoing was identified by CMP but could not be revealed, one option might be to exit CMP procedure to enable it to be exposed.

Opposition to the Bill fell away

Before concluding, I should make clear that following the defeat of an amendment to remove the CMP provisions from the Bill in the Lords, when the Bill moved to the Commons none of the three main political parties in Parliament had any appetite for removal of the CMP provisions. All accepted in principle that there are cases in which it is appropriate to use CMP. A discussion of this issue goes well beyond the scope of this and my previous blogs. My more modest ambition in these posts has been to highlight the need to include key safeguards in the legislation and chart the progress of the Bill through Parliament. Having now done so, my conclusions are these:

Conclusions

(1) Welcome safeguards introduced.  It is undoubtedly the case that the terms of the JSA are a vast improvement on the terms of the Bill as originally introduced to Parliament. The Government accepted the inclusion of important safeguards, including judicial discretion, the ability for both parties and the court to trigger CMP, CMP exit power, reporting and five year review. For this both the Government and Parliament must be given considerable credit (even if the Government might have anticipated at the outset that some of these protections would have to be included).

(2) Government redlines held. In the end, the Government got its desired CMP without difficulty and held its redline position on the non-application of the Wiley balance. This included defeating efforts to require CMP to be a last resort, which carried the implication that the PII exercise (with Wiley balance) would have to be gone through before CMP could be used.

(3) Control over information re-asserted. The Government has thus achieved a core objective of re-asserting control over national security information. Even if it is required to conduct a PII process, it is always open to the Government to concede issues or the entire claim if it is are ordered to disclose material which it does not want to disclose. This ejectorseat option was not available in the Binyam Mohamed case because what was sought in that case was third party disclosure applying Norwich Pharmacal principles. Such a claim could not be conceded without supplying the information sought. As I noted in my first blog, the Bill also included clauses that would immunise the intelligence services from Norwich Pharmacal actions in the future. These provisions were enacted in section 17 of the JSA without any significant opposition. In any event, in an extraordinary twist in the tale, the Court of Appeal has recently held in the case of R (Omar) & Ors v Foreign Secretary [2013] EWCA Civ 118 that it ought not to have permitted a Norwich Pharmacal application against the Intelligence Services and overruled the Binyam Mohamed case.

(4)  “Fair and effective” the key issue. The key issue under the JSA, which will determine how widely CMPs are to be used in civil proceedings and whether they become a means of concealing Governmental wrongdoing, is what is meant by “fair and effective administration of justice” in sections 6(5) (trigger) and 7(2) (exit).

(5) Turning out the lights? Given the new jurisdiction for courts to use CMP in civil proceedings, we may come to look back on the Binyam Mohamed case as the high point of public accountability of the Intelligence Services. For a moment, in the tense, shocking aftermath of the 9/11 terrorist attacks, the English courts opened a window into the workings of the Intelligence Services and shone a light on their murky relationship with the CIA. The JSA enables this window to be closed and for this light to be extinguished. Whether this is what occurs will depend very much on how the courts interpret its provisions and how they decide to use their new statutory jurisdiction to scrutinise the activities of the British Intelligence Services.

Tom Hickman is a Barrister and Reader in Public Law, UCL 

Suggested citation: T. Hickman ‘Turning out the lights? The Justice and Security Act 2013′ UK Const. L. Blog (11th June 2013) (available at http://ukconstitutionallaw.org)

1 Comment

Filed under UK government

Conor Gearty: Legal Aid Changes

conorLast week I spent an enjoyable few hours at a protest in central London, outside the Ministry of Justice. The chants were along the lines of ‘what do we want: JUSTICE and EQUALITY; when do we want it: NOW’.  There were quite a lot of us – and we were all lawyers. (My picture was tweeted with a retired court of appeal judge in the background.) What brought us out onto the streets, and what has been gathering momentum among not only lawyers but the public as well, has been outrage at what the government has already done to legal aid, and what more it intends to do if it gets its way.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 has already brought to an end the availability of legal aid across a whole range of areas of law that have direct relevance to the poor.  Under cover of generalised claims about opportunistic litigation, the goal has clearly been to remove the capacity for challenge to the implementation (whether lawless or not) of the coalition’s various attacks on benefits.  The same legislation also withdrew state support from foreign nationals in prison who are threatened with deportation, as many are – regardless of how long they had been here and how British they are in fact.  The idea behind this change was to prevent resistance to removal by showing an infringement of the right to respect for private life in the Human Rights Act (a matter on which government now also intends to legislate separately).  In both these cases, the government appears close to accepting that their goal is to prevent meritorious cases getting to court, on the ground that the laws that make them meritorious (human rights legislation; equality law; the common law of procedural fairness) are not laws they like.  They have been tempted to remove the litigants rather than the laws, hoping there’ll be less fuss.

It does seem, though, that Mr Grayling and his team at Justice may have overreached themselves. In new proposals they are now also proposing the denial of choice and effective representation to all those accused of crimes except the well-off.  This will deliberately leave most of those arrested in the hands of the lowest bidder for the job of guarding their interest, who will have been given monopolies so as to ensure that the economies of scale work for them. Not only satirical BBC programmes but even the Daily Mail has castigated this – in particular the keenness of Eddie Stobart (‘cavalier and slapdash’ as their legal department chief has been judicially described) to become the public defender the public are compelled to accept.  The point is to drive good legal aid firms – already operating on a shoe string – out of business and as a result make impossible to raise (because unnoticed or uneconomic) the kinds of important legal points that protect suspects and ensure the rule of law.

The same tactics are also evident in the new civil legal aid changes being proposed: refusing legal aid to everyone who does not meet a residence test; removing legal aid for those who complain of mistreatment in prison; denying funding for test cases (whose prospects are by definition uncertain); and cutting rates for legal advice and representation even further in the barely-disguised hope that well-informed solicitors’ firms will go out of business.  If all this were to go through, access to justice would return to being the mirage it once was for all but the very wealthy before the establishment of legal aid by the post war Labour government.

The judges, the government’s own lawyers and the whole legal profession has joined as one to prevent it.  Emily Thornberry the Shadow Attorney General has challenged her government counterpart Dominic Grieve to explain how the proposals fit with the public interest which it is his primary function to guard. Margaret Thatcher’s long serving Lord Chancellor Lord Mackay of Clashfern has told The Mail on Sunday that the proposed tenders for legal aid contracts ‘should not be based on cost alone’, and that he is concerned that the measures ‘do not contain robust means of ensuring standards of quality’, adding: ‘It’s very difficult to make cuts and to preserve the quality of justice at the same time.’ Writing in The Daily Telegraph on 29 May no fewer than 90 QCs asserted that the ‘cumulative effect of these proposals will seriously undermine the rule of law, and Britain’s global reputation for justice. … In practice, these changes will immunise Government and other public authorities from effective legal challenge. Abuses by UK agents and officials overseas that hitherto have  been subject to the scrutiny of British courts will now, in practice attract impunity.’ Moreover the QCs say the changes would be counter-productive: ‘People whose lives are affected by the unlawful action of public bodies will have no option but to try to represent themselves.   Effective representation will be one-sided: the government will continue to pay for, and be represented by specialist lawyers.’

Of course the judges will try to help – for a while.  As will the government lawyers – for a while.  But times will change.  What was shocking – a claimant in person floundering to explain why what has happened to them is unlawful as well as wrong – will become first normal and then irritating.  All that time wasted!  Why don’t they just get on with it? Without specialist law firms, younger QCs will emerge, invariably from the world of commercially paid work, with no feel for or memory of the equalities of the past. The public interest bar will be a thing of charity and training, not a core advocacy activity for all.

We would have effective impunity within a system of notional accountability, a pseudo rule-of-law allowing government to congratulate itself on the legality of what it does in the sure knowledge that the life-blood of true accountability – state-funded litigation – had been drained from the system.

Peter Oborne (Daily Telegraph) says of the Cameron government that it has ‘launched a series of very carefully prepared assaults on exactly the British institutions they should, as Conservatives, be defending.’ Will Mr Grayling – the first lord chancellor not to be a lawyer for hundreds of years – listen, or will his fearlessness grow into the sort of stubbornness in the face of facts that ends political careers?  Perhaps it already has.

Conor Gearty is Professor of Human Rights Law at LSE and also Director of its Institute of Public Affairs. He is a practicing barrister at Matrix Chambers.

Suggested citation: C. Gearty ‘Legal Aid Changes’ UK Const. L. Blog (10th June 2013) (available at http://ukconstitutionallaw.org)

3 Comments

Filed under Constitutional reform, UK government

Douglas Edlin: Will Britain Have a Marbury?

edlind Marbury v Madison is the most famous judicial decision in US history, written by the most important judge in US history.  According to the traditional understanding, Chief Justice John Marshall brilliantly side-stepped a looming political clash between former President John Adams and newly elected President Thomas Jefferson.  In doing so, Marshall declined the additional power Congress attempted to confer upon the US Supreme Court through section 13 of the Judiciary Act of 1789, while simultaneously claiming for the Court the much more important authority to review the constitutionality of federal legislation and government action.  It is a terrific story.  As is frequently the case, however, there is more to the story.  Marbury did not actually emerge from the legal ether and the political acumen of Marshall as the deus ex machina of US constitutional politics.  For years prior to Marbury, courts had claimed and employed the authority to review legislation for conformity with fundamental principles of law.  Nevertheless, if we consider Marshall’s decision in relation to the US rule of recognition, the conventional understanding is, in some meaningful sense, more important than the historical specifics.  US legal and political officials have long viewed the Marbury ruling as the established legal basis for the power of judicial review, and officials generally comply when the Court determines that their actions have violated the US Constitution.

Now that the United Kingdom has a Supreme Court that is separated formally and physically from Parliament, I wonder if the UK Supreme Court will, sooner or later, issue an opinion – like Marshall’s in Marbury – in which it expressly claims the authority to review primary legislation and ensure its conformity with the British constitution.

Does Britain Need a Marbury?

As with Marshall’s opinion, if the UK Supreme Court writes its Marbury, that decision will not appear from nowhere.  For one thing, of course, prominent British judges such as Lord Justice Laws, Lord Justice Sedley, and Lord Woolf have suggested for some time in extra-curial writings that the doctrine of absolute parliamentary sovereignty may no longer be the only or the best understanding of British constitutional principles.

Moreover, and more to the point where the UK rule of recognition is concerned, a shift in official attitudes and behavior may be occurring, or may already have occurred.  In decisions such as Anisminic, Pierson, Simms, Belmarsh, Jackson and Cart, the courts have indicated that the meaning and force of the British constitution cannot be determined by Parliament alone.

In fact, in the first appeal heard by the newly constituted Supreme Court of the United Kingdom, Ahmed v H.M. Treasury , the Court considered the scope of authority delegated to (or claimed by) the Treasury under the United Nations Act of 1946 with respect to combating terrorism by freezing the assets of suspected terrorists.  Purporting to act under the authorization of the 1946 Act, the Treasury froze the assets of a number of citizens and residents of the UK.  According to the Court, the case raised a series of significant issues that “concern the separation of powers.”

A critical issue in Ahmed was the contention that § 1(1) of the 1946 Act,  allowed the Treasury to impede the fundamental rights of individuals while simultaneously preventing those individuals from questioning the legality of the government’s actions in court.  As Lord Mance put it, “At common law, the submission is that s 1(1) cannot be taken to have contemplated or permitted orders which would interfere with, or at all events violate, fundamental rights . . . The real issue is whether s 1(1) permits the making of an order which interferes with such rights on a basis which is immune from any right of challenge on the merits before a court or other judicial tribunal.”  (Ahmed, [2010] UKSC 2, [238], [239]).

According to Lord Mance (and several other members of the UK Supreme Court), the 1946 Act could not be read to permit the Treasury to freeze personal assets and to preclude judicial review of the Treasury’s actions – with the practical effect of interfering with individuals’ fundamental rights of movement, property, and privacy, as well as their right of access to the courts – so that the legality and legitimacy of the Treasury’s actions could functionally be immunized from judicial assessment:

 The basic common law right at issue on these appeals is [the appellants’] right to access to a domestic court or tribunal to challenge the basis for including their names in the list of persons associated with Al-Qaida or the Taliban and so freezing their property with the severe personal consequences already indicated     . . . The words of s 1(1) are general, but for that very reason susceptible to the presumption, in the absence of express language or necessary implication to the contrary, that they were intended to be subject to the basic rights of the individual . . . As an extreme form of restriction of individual liberty, internment without the right to challenge its basis before any court or judicial tribunal would, if it were to be possible at all, at the least require primary legislation. . . . It is a matter which one would expect to be subject to judicial control, before or after the designation.  So here, in my view, s 1(1) was and is an inappropriate basis for the Al-Qaida Order, freezing indefinitely the ordinary rights of individuals to deal with or dispose of property on the basis that they were associated with Al-Qaida or the Taliban, without providing any means by which they could challenge the justification for treating them as so associated before any judicial tribunal or court . . . (Ahmed, [2010] UKSC 2, [246], [249] (Lord Mance) (citation omitted) (emphasis supplied)).

This passage suggests (in the italicized language) that certain acts of the government, in the absence of any possible judicial assessment of their legality, are so fundamentally contrary to the principles of the British constitution that they would not be sustained by the courts and cannot be achieved by the government.

In Ahmed, the UK Supreme Court may already have said that the constitutional status of certain common law principles cannot be altered by statute.  If this is becoming the prevailing judicial perspective, the UK rule of recognition and the UK constitution may require a somewhat more complicated formulation than “whatever the Queen enacts in Parliament is law.”

Does Britain Want a Marbury?

In response to the notion that the UK rule of recognition has already shifted, traditionalists would argue (as Jeffrey Goldsworthy does in his most recent book) that a rule of recognition can change only through the actions and beliefs of all senior officials of the system, not just judges.  And since the judges cannot alter the rule of recognition by themselves, and since we do not yet see a consensus among all legal and political officials in Britain with respect to the courts’ authority to exercise judicial review over parliamentary legislation, sovereignty remains the cornerstone of the British constitution and the core of the UK rule of recognition.

In addition, proponents of sovereignty might point out that none of the cases I have mentioned contains an explicit assertion of a Marbury-style form of judicial review.  Perhaps this authority can be found in the subtext of these opinions, by those who seek it, but subtextual and inferential and indirect references to this judicial authority are not enough.  For the UK rule of recognition to change, the courts must claim this power for themselves, as Marshall did.  Then Britain must see what the reaction of its officials is to that ruling.

For defenders of parliamentary sovereignty as the constitutional orthodoxy of British law and politics, the answer to this question is no.  A thousand times, no.  Whether in terms of history and tradition, or in terms of theory and practice, sovereignty’s defenders believe an (explicit) assertion by the courts of co-equal institutional and constitutional authority will threaten the solid foundations on which centuries of British law have been built.  And in return Britain will be left with the unconstrained judicial activism of the US courts.

The concern that a British Marbury would inevitably supplant traditional parliamentary sovereignty in the UK with US-style “judicial supremacy” is widely shared, and not just by proponents of traditional absolute sovereignty.  In a recent post on this blog (2 April 2013), Dawn Oliver noted that the US Supreme Court has failed to prevent some of the worst political and human rights abuses in US history.  Professor Oliver’s point is beyond dispute.  And so Britons might reasonably conclude that the Supreme Court of the UK should not presume to fix what is not broken.

The problem is that governments do occasionally break things.  That is why decisions such as Ahmed and Belmarsh arise.  Professor Oliver’s well-taken observation about the historical and theoretical and practical differences between a presidential model of government contained within a written constitutional framework and a parliamentary model that has evolved through an unwritten constitutional tradition means that the UK Supreme Court will never transform itself into a reproduction of the US Supreme Court (even when it or its predecessor writes opinions such as Ahmed and Belmarsh).

Should Britain Have a Marbury?

So maybe the UK does not want or need a Marbury.  Should the UK Supreme Court write one, anyway?  Fig leaves and fairy tales may have their place, but a Supreme Court that no longer sits in Parliament’s building, a separate and independent institution in all respects, which is seen that way and which sees itself that way, should be able to say that it has the authority to invalidate governmental acts that violate constitutional principles.  The rule of recognition is defined by what the officials of the system do.  One of the most important things judges do as officials of the system is write opinions.  Professor Oliver is right to point out that the US Supreme Court did not prevent or correct important abuses of power throughout US history.  She is also right to note that it did correct some.  The UK courts have, too.  The time may have come for the UK Supreme Court to say that is what the UK courts are doing, when that is what they are doing.

The concern raised by Professor Oliver, which is shared by defenders of sovereignty such as Professor Goldsworthy, is that “A move to judicial review of legislation in the UK could well undermine the positive pro-constitutionalism, non-partisan aspects of the political and governmental culture.”  But as Professor Oliver reminded us, many of those problems in the US result from distinctive aspects of the political process in the US (i.e., a sometimes ambiguous written constitution that created a federal and presidential system of government, and a more aggressive and less civil political culture), which are not present in the UK.  It seems unlikely that the UK Supreme Court’s explicit refusal to countenance governmental abuses of power would change these other aspects of British government and politics.

Douglas Edlin is an Associate Professor and Chair at the Department of Political Science, Dickinson College, Carlisle, Pennsylvania.

Suggested citation: D. Edlin,  ‘Will Britain Have a Marbury?’  UK Const. L. Blog (7th June 2013) (available at http://ukconstitutionallaw.org)

5 Comments

Filed under Judicial review

Helen Fenwick: Article 8 ECHR, the ‘Feminist Article’, Women and a Conservative Bill of Rights

helen1There has been a lot of commentary on the Report of the Bill of Rights’ Commission, and the ‘damp squib’ analysis of the Report (see Mark Elliott) as a whole is one most commentators appear to assent to (see eg Joshua Rozenberg for the Guardian here). My view in general is that the squib could reignite post-2015 if a Conservative government is elected, not in relation to the very hesitant ideas as to the possible future content of a Bill of Rights that the Report put forward, but in relation to its majority recommendation that there should be one (see further my previous post on the Commission Report here). If a BoR was to emerge under a Conservative government post-2015 I suggest that it would reflect the ideas of the Conservative nominees on the Commission which assumed a far more concrete form in the Report than the majority recommendations did (eg see here at p 192). This blog post due to its length is not intended to examine the probable nature of such a BoR based on those ideas in general, but to focus only on two aspects: the idea of curtailing the effects of an equivalent to Article 8 ECHR (right to respect for private and family life), and of requiring domestic courts to disapply Strasbourg jurisprudence under a BoR in a wider range of situations than at present under s2HRA (see Roger Masterman’s post on s2 on this blog here). In respect of the latter issue the potential impact of so doing will only be linked to selected aspects of Article 8 jurisprudence of especial actual and potential benefit to women.

Why concentrate on women as opposed to persons in general attempting to assert private or family rights against the state or non-state actors? That choice is partly due to the implications of EM (Lebanon) v SSHD in which the effect of deportation on the family life of a woman was found to be capable of creating a “flagrant breach” of Article 8. EM argued that such a breach would be created on the basis that shari’a law as applied to her in Lebanon would automatically grant custody of her child to the father, regardless of the child’s best interests, destroying the family life she enjoyed with her child. The basis for that finding is discussed further below. The successful claim in EM demonstrates that Article 8 can be deployed to prevent deportation to face specific instances of state-sponsored gender-based discrimination despite its apparently gender-neutral nature. The decision also led to an increased reliance on Article 8 in cases involving the deportation of parents; in that sense it lies behind the ‘attack’ on Article 8 by Martin Howe in the BoR Commission Report, in the Immigration Bill currently before Parliament, and by Dominic Grieve in 2010 (see my article, 2012 Public Law). Article 8 is concentrated on also because due to its particular ability to impose positive obligations on the state in relation to creating respect for private or family life it can require the state to create curbs on the actions of non-state actors particularly adverse to women (eg in relation to domestic violence: Hajduova v Slovakia) and ensure the efficacy of services that women in particular might need to access, such as to abortion (P&S v Poland). Women are, it is argued, more at risk than men from the actions of non-state actors within the private and family sphere (see intervention of Equal Rights Trust in Eremia and Others v Moldova on this point), so Article 8 has a particular pertinence for women (see further below), and unlike Article 14, which has not proved to have a strong impact as a means of advancing the interests of women due to its reliance on furthering formal equality (see eg Dembour Who Believes in Human Rights (Cam: CUP, 2006) Ch 7), Article 8 can address the substantive concerns of women, without the need for any reliance on a comparator.

Limiting the effects of a right to respect for private and family life in a BoR

In his separate paper in the Commission Report (A UK Bill of Rights) Martin Howe proposed limiting the effect of an equivalent of Article 8 in a new BoR by means of an accompanying clause. The clause would be to the effect that if legislation was passed determining the balance between respect for private life and various public interests, then the courts would not be able to give greater protection to privacy via the Article 8 equivalent than the legislation gave it. Such a clause would obviously be controversial since it would appear to oppose the principle generally underlying Bills of Rights – to protect persons against legislative power, thus countering majoritarianism. It would also attack the notion of universalism underlying Bills of Rights if the clause was aimed in part, which seems to be the intention, at limiting the privacy rights of non-nationals. It would disturb the carefully crafted compromise between Parliamentary sovereignty and protection for rights enshrined in the Human Rights Act, since in relation to this particular guarantee, Parliament would set out its limits in particular pieces of legislation, which would therefore be protected from the effects of mechanisms in a BoR equivalent to those of ss3, and 4 HRA – or at least such would be the intention. Thus, action by public authorities via an equivalent to s6 HRA infringing internationally recognised standards of respect for private life could be enabled by the clause, avoiding the possibility that once the legislation in question had been reinterpreted under an equivalent to s3 HRA, that would be found not to be required. Obviously this possibility raises many questions which cannot be addressed here regarding the appropriate separation of powers between judiciary and legislature and of the possible relationship between various parts of a BoR and the clause itself.

Such a clause as proposed by Howe could be deployed to limit the current impact of Article 8 in deportation decisions. Dominic Grieve has seen the decision in EM (Lebanon) as one that has resulted from a judicial desire to shadow Strasbourg under the HRA and go beyond Strasbourg (‘Proposals for a British Bill of Rights’ 8th March 2010 British Academy AHRC Forum). He had already indicated that this is a problem that he sees as one that could be remedied under a BoR (on conservativehome blog). Howe appeared to have in mind the case of SSHD v Respondent which concerned an Iraqi asylum-seeker, Aso Mohammed Ibrahim, who had brought about the death of a child, Amy Houston, in a driving accident, and fled the scene. He should have been deported previously, in November 2002, once his asylum application had failed but there were delays, meaning that he obtained a chance to establish family life in the UK (see comment here). An immigration tribunal later refused the application to deport him on the basis of his right to respect for his family life under Article 8 ECHR, a decision upheld on appeal (SSHD v Respondent). In a letter to the father of the girl in January 2010, Cameron promised that a future Conservative government would repeal the HRA, which he held responsible for the decision (reported in the Guardian). When the Court of Appeal refused leave to appeal the decision, the Immigration Minister Damian Green said “I will be raising the wider issues highlighted by this tragic case with the Justice Secretary for consideration by the commission on UK human rights law which the Government will be establishing later this year” (see BBC report). In October 2011 Grieve said: We think that the domestic courts have placed too much weight on the family rights of foreign criminals and we intend to redress the balance in the Immigration Rules (speech at Lincoln’s Inn, see transcript).

Theresa May recently said in the Mail on Sunday that new guidance approved by Parliament for judges had made it clear that a foreign criminal’s Article 8 right to a family life had limits, but she accused the judges of ignoring them. She said she now wanted to introduce a law to require most foreigners guilty of serious crimes to be deported so that Article 8 could apply to block deportation only exceptionally. The amended Immigration Rules set out an extensive, framework providing a definition of the Article 8 balancing factors, but in Izuazu (Article 8 – new rules) Nigeria the Upper Tribunal found that the new Immigration Rules do not adequately reflect the Secretary of State’s obligations under Article 8. In the recent Queen’s Speech the government promised to “give the full force of legislation to the policy we have already adopted in the Immigration Rules. The courts would therefore be required to properly reflect the balance given to the public interest when ruling on immigration cases”. In other words, the government intends to use primary legislation based on the Rules to change the weight given to the public interest under Article 8(2) when balanced against the rights of the individual in immigration cases under Article 8(1), “to limit the use of Article 8” (Adam Wagner in the New Statesman, and Mark Elliott on the UK Human Rights blog). A clause in a BoR expressly limiting the effect of a right of respect to private and family life would clearly appear to bolster such a change, as could the changes to the s2HRA equivalent put forward by Conservative nominees on the Bill of Rights Commission, considered below.

If a clause on the lines proposed by Howe was introduced in a new BoR it would protect provisions of the Immigration Bill intended to prevent judges from relying on Article 8 in relation to the deportation of non-nationals who have committed offences in the UK, but who may claim that respect for their family life under Article 8 will be breached if they are deported. But Howe’s clause would also apply to any future legislation that sought to make itself ‘Article 8-proof’. In other words, any legislation passed in order to limit the effect of an Article 8 equivalent in a BoR would, under a clause similar to the one proposed by Howe, prevent courts taking a more expansive view of the application of the Article 8 equivalent than the legislation itself allowed. The attempt to re-balance rights, downgrading Article 8 in relation to Article 10, in the HRA s12(4), signally failed (see for example Lord Justice Sedley in Douglas v Hello; Campbell v MGN). However, s12(4) did not direct judges to pay attention to the scope of Article 8 or 10 as delimited by specific pieces of legislation; further, had s12(4) been taken literally it would have conflicted with a well-established strand of Strasbourg jurisprudence which does not give Article 10 presumptive priority over Article 8 (see eg Von Hannover).

Further limiting clauses might be needed. The equivalent of Article 3 would also support recognition of positive obligations, including in the contexts considered below, although the harm threshold is obviously high. Article 8 currently may be the gateway to Article 14, the freedom from discrimination guarantee (bearing in mind that the UK has not ratified Protocol 12). In other words, if Article 8 is engaged but no violation is found a violation of Article 14 might nevertheless be found of the two read together (Van Raalte v Netherlands). But a statute finding that an Article 8 equivalent could not be engaged in relation to a particular set of facts could also be interpreted to mean that the pathway to Article 14 was blocked. Further, even if a Conservative BoR was introduced limiting the impact of Article 8, challenges could still be brought at Strasbourg unless the UK withdrew from the Convention (recently raised as a possibility by Theresa May (BBC News), but domestically the possibilities discussed below of reliance on Article 8 could potentially be stifled, depending of course on the nature of the legislation that was introduced.

Evading Strasbourg jurisprudence under a BoR

While the government is bound under Article 46 ECHR to comply with the final decisions of the Court, as a matter of international law, the executive might well prefer to delay and procrastinate in response, or to bring forward legislation to Parliament which might represent a more minimal response to the Strasbourg decision than court-based findings would or might. Or a decision might be viewed as non-dispositive in a UK setting due to its fact-sensitivity. That tendency is evident in the Conservative predilection for proposing changes to s2 HRA to create greater leeway for courts to depart from Strasbourg, possibly partly with a view to creating more ‘wriggle-room’ in relation to the Article 46 duty.

There are signs that senior Conservatives prior to the 2010 election intended to use the BoR to seek to sever or weaken the connection with Strasbourg created by the HRA, s.2.  Dominic Grieve has argued that the HRA has been “interpreted as requiring a degree of deference to Strasbourg that I believe was and should be neither required nor intended” (Telegraph). Instead, he said, a new BoR would make it clear that British courts could allow for UK common law to take precedence over decisions by the European Court of Human Rights in Strasbourg (Equality and Human Rights Commission).  Grieve’s key speech on the ECHR in 2011 targeted s2 HRA as a failing section on the basis that it allows Strasbourg interpretations of the ECHR too much purchase in domestic law. In his separate paper in the Commission Report (here at p 257), Mechanisms of a UK Bill of Rights, A Speaight recommended change to the formula of s2, echoing Grieve. He did not consider that s2 should be retained in its current form since he wanted to ensure that Strasbourg jurisprudence could not be treated as binding. Therefore he did not consider that the words ‘take into account’ in s2 should be retained – since so doing might still lead judges to come close at times to following Strasbourg. Martin Howe in his paper stated that he agreed with Speaight’s proposals as regards the s2 mechanism.

Introducing a BoR with a clause directing judges to limit the impact of an Article 8 equivalent as determined by any particular piece of legislation might place them in a dilemma if they did not find themselves within a recognised current exception to the Ullah principle as regards applicable, determinative Strasbourg Article 8 jurisprudence. Thus also directing the judges to disregard such jurisprudence might appear to be necessary to safeguard such a clause.

Using Article 8 ECHR to advance women’s interests

Under one strand of feminist thinking it might be argued that the ECHR in general has little to offer women (see for discussion Grabham and Hunter ‘Encountering Human Rights’) due to a judicial approach to it that values modes of thought that may marginalise women and which pays little attention to ideas about feminist legal method (see Samuels ‘Feminizing  human rights adjudication’), combined with the difficulty of using specific cases to address complex social problems. But, as a number of writers have pointed out, especially recently (see Bauer Documenting women’s rights violations by non-state actors), human rights principles can be used as a campaign tool in influencing and mobilizing public and community opinion, and the use of campaigning methods by feminist advocacy groups as instanced in the recent successful campaign to remove gender-based hate speech from Facebook, does not preclude mobilising legal channels as a complementary means of disrupting existing social norms adverse to women via deployment of such principles, allowing gender-specific variants of rights’ violations to be recognised. At the same time the difficulties facing women who seek to use the ECHR should not be under-stated, and Article 8’s protection for family life is gender neutral at face value, meaning that it can also be invoked in ways that could put women and girls at risk, by discouraging state actions interfering with family life that are designed to protect vulnerable women (for example, claims by family members convicted of offences relating to domestic violence, including ‘honour’ murder, that post-sentence they should not be deprived of access to surviving family members in furtherance of their family life, as occurred, albeit unsuccessfully, in Ahmad v Brent).

The possibility of using a BoR to limit the effect of a guarantee of respect for private and family life, combined with a degree of decoupling from the Strasbourg jurisprudence, could have various adverse effects which have been considered elsewhere; this blog’s concern is with the possibility that developing opportunities to safeguard and advance women’s interests using Article 8 ECHR might be stifled. So it proceeds to ask – in what ways does and could Art 8 especially benefit women and girls?  This blog obviously cannot offer by any means an exhaustive list; also each of these matters is complex and has already spawned quite an extensive literature in itself in relation to international human rights’ law, so they can only be touched on here.

Preventing deportation to face adverse treatment based on gender

EM (Lebanon) (FC) (Appellant) (FC) v SSHD concerned a woman who had suffered domestic violence from her husband; as Lord Bingham noted, he had ended her first pregnancy by hitting her on the stomach with a heavy vase, saying he did not want children (para 22). As the Lords found, under shari’a law as applied in Lebanon, during the first seven years of life, when a male child is cared for by the mother, the father retains legal custody and may decide where the child lives. The transfer to the father at age 7 is automatic: the court has no discretion in the matter and is unable to consider whether the transfer is in the best interests of the child. As a result, Lord Bingham pointed out, women are often constrained to remain in abusive marriages for fear of losing their children (para 24). The evidence was that no family life had been established in Lebanon between the child and his father or his father’s family; it was found that the father had shown no interest in him. The applicant had managed to leave Lebanon with her son and resisted deportation from the UK on the basis of her Article 8 right to respect for family life; as this was a ‘foreign’ case, she had to show that a flagrant violation of Article 8 would arise due to the impact on her family life if she was returned to Lebanon, taking into account that the only family life that had been established was between mother and son. The Lords agreed that on return to Lebanon both the appellant’s and AF’s (her son’s) right to respect for their family life would be flagrantly violated in the sense of being ‘completely denied and nullified’.

Expulsion to face the risk of extremely serious adverse treatment on grounds of gender – ‘honour’ murder (see A.A and others v Sweden) or FGM (Omeredo v Austria) – has been found to fall within Articles 2 or 3. But their status as unqualified or non-materially qualified rights inevitably carries with it the need to show a high threshold of harm, and so places women under serious evidential difficulties, meaning that bringing the claim also under Article 8 (alone and/or combined with Article 14) may be advantageous in such instances.

Domestic violence – requirement of effective investigations and prevention

Bevacqva and S v Bulgaria concerned a woman who had been attacked on a number of occasions by her husband and claimed that her requests for a criminal prosecution were rejected on the ground that it was a “private matter’. The Court found a violation of Article 8 due to the failure of the state to adopt the measures necessary to punish and control the violent behaviour of her husband. A somewhat similar situation arose in Hajduova v Slovakia the applicant’s husband had been detained in hospital for psychiatric treatment after he attacked her in public and threatened to kill her. She moved to a refuge with her children. Her ex-husband was released, without having undergone the required treatment, and renewed his threats. Reiterating that Slovakia has a duty to protect the physical and psychological integrity of individuals, particularly vulnerable victims of domestic violence, the Court found a violation of Article 8 in that, although the applicant’s ex-husband had not assaulted her following his release from hospital, her fear that his threats might be carried out was well-founded and the authorities had failed in their duty to ensure his detention for psychiatric treatment. A similar outcome was reached in Kalucza v. Hungary which concerned Hungary’s failure to protect Ms Kalucza from her violent former partner. The Court found a violation of Article 8 since the Hungarian authorities had not taken sufficient measures to provide her with effective protection against him, despite criminal complaints lodged against him for assault, repeated requests for a restraining order against him and civil proceedings to order his eviction from their flat.

These cases succeeded under Article 8, although it is readily arguable that some cases of domestic violence should rather raise issues under Articles 2 and 3, as in Opuz v Turkey which concerned the ‘honour’ murder of the applicant’s mother, who had tried to support the applicant, and repeated ‘honour’ crimes in the form of serious assaults and death threats against the applicant. The Court noted that the national authorities were reluctant to interfere in what they perceived to be a “family matter”. Turkey was found to have violated Article 2 due to its lack of due diligence in taking preventive operational measures to protect the life of the mother and therefore in failing in their positive obligation to protect the right to life of the applicant’s mother within the meaning of Article 2. Turkey was also found to have violated Article 3 due to its failure to take protective measures in the form of effective deterrence against serious breaches of the applicant’s personal integrity by her husband.

A number of highly significant findings were made in this context in the very recent case of Eremia and Others v Moldova. The judgment found that while the authorities took some steps to protect the first applicant from her violent husband, A, a police officer, over a period of time, the steps were not effective and there was reluctance to take the matter seriously enough. In other words, the failures in the case were redolent of the familiar failings in the previous domestic violence cases considered. But not only were breaches of Articles 8 and 3 (on the basis of the state’s positive obligation to protect persons from inhuman treatment) found, but the Equal Rights Trust, intervening, persuaded the Court to treat domestic violence as a form of gender-based discrimination under Article 14 read with Article 3.  The second and third applicants were the daughters of the first applicant; they complained successfully under Article 8 of the psychological effects of witnessing their mother being physically and verbally abused at their home, while being unable to help, and of verbal abuse on the part of A. The decision represents an important breakthrough in this jurisprudence since the gendered nature of domestic violence – its disproportionate and particular impact on women – was recognised under Article 14, as was the impact of such violence on children forced to witness it, under Article 8.

Recently in the UK the IPCC reported adversely on the police investigation into the murder of Maria Stubbings who was strangled in Chelmsford, Essex, in December 2008 by her former boyfriend Marc Chivers (see main findings here). Essex police knew he had killed before, and that he had served time in prison for assaulting Stubbings, but the IPCC found that they had failed to recognise the seriousness of the danger to her. As a number of journalists have recently pointed out, the Macpherson inquiry found that the police had failed “to provide an appropriate and professional service” with “processes, attitudes and behaviour” harmful to the minority ethnic community when it reported on the murder of Stephen Lawrence (see eg this recent report in the Guardian). Maria Stubbings’ family have called for a similar inquiry into failings in police investigations into domestic violence. The threat and actuality of a possible action under Articles 8,2,3 domestically or at Strasbourg, based on the jurisprudence cited, would be likely to aid campaigns focussing on this issue.

Conclusions

This blog has suggested that limiting the effects of a guarantee of respect for private and family life in a BoR, combined with seeking to create departure from relevant Strasbourg jurisprudence, could in future stifle the impact of nascent developments in human rights principles under Article 8 ECHR that reduce gender-based harm to women. So doing could also potentially derail the effect of Article 8 in domestic Constitutional terms, given that the UK has a good record on procedural propriety but traditionally a poor one on privacy. Clearly, such an attempt might fail: the fact that judges were operating under an instrument termed a BoR might encourage an activist approach that sought to circumvent attempts at giving the ‘public interest’ the opportunity to negate a right in certain circumstances – the converse of the Strasbourg approach. Nevertheless, it is worth drawing attention to Howe’s proposed clause, and to the general interest shown by senior Conservatives in minimising the guarantee of respect for private life.

 Helen Fenwick is Professor of Law at The University of Durham.

 

Suggested citation: H. Fenwick, ‘Article 8 ECHR, the ‘Feminist Article’, Women and a Conservative Bill of Rights ‘  UK Const. L. Blog (5th June 2013) (available at http://ukconstitutionallaw.org)

1 Comment

Filed under Human rights, UK Parliament

Mark Aronson: Statutory Interpretation or Judicial Disobedience?

MarkIn Australia as in England, courts began “reading down” legislative grants of broad and seemingly unfettered discretionary power long before the currently fashionable “principle of legality” entered the public lawyer’s lexicon. Judges typically explained themselves as merely engaging in an exercise of statutory interpretation, saying that in the absence of express words or an absolutely necessary implication to the contrary, they could not believe that Parliament intended to override fundamental principles, rights, or freedoms. Legislative drafters, they reasoned, were well aware of this interpretive approach, and could always respond with clearer language.

The only real novelty of the principle of legality was to add a “democratic” justification to the judicial claim of disbelief; any government seeking such an untoward power should be forced to ‘fess up to the Parliament, and face the political music. But if the actual intentions of the legislators were determinative, then both the curial expression of disbelief and the more recent democracy-forcing justification would be entirely unconvincing. Government can state its intention with absolute clarity and transparency, but to no avail if the statutory text itself leaves any loophole; what counts is statutory meaning, not legislative intent. In every case considered below, the government’s actual intentions could not have been clearer, nor more clearly stated during the Bill stages.

None of this would strike English readers as particularly noteworthy, although they might consider it further grist to the mill of the perennial debates about the limits (if any) to Parliamentary supremacy. The UK Supreme Court and its predecessor have occasionally suggested the possibility of outright disobedience to legislation threatening the rule of law itself, the usual instance being a privative clause so clearly drafted as to leave no wriggle-room whatsoever. For the moment, however, the UK Parliament has not tested the judicial mettle. Australian parliaments pushed the issue considerably further, but they have surprisingly little to show for their efforts. Indeed, they may well be playing with fire. Australia’s judicial review jurisdictions are constitutionally entrenched, and legislative attempts to get around that might end up nudging the courts beyond a judicial review jurisprudence focused primarily on good process, to a review that is overtly more substantive.

The story starts with privative clauses, which in Australia have long gone much further than the Anisminic Act’s exclusion of certiorari. Working around “no certiorari” clauses was always easy, because they could be read down to apply only to certiorari for non-jurisdictional errors of law, a work-around that English courts might now find slightly more difficult in light of their decision that all errors of law are reviewable for invalidity. However, Australian privative clauses went further, banning judicial review remedies (such as prohibition and mandamus) that were only ever available to overturn decisions or conduct that were invalid. For more than 60 years, the High Court adopted a convoluted, interpretive approach to privative clauses (see R v Hickman; Ex parte Fox and Clinton (1945) ).  As an exercise in interpretation, it was scarcely convincing, but at least it applied to both federal and State Acts, in an era when everyone had assumed that the judicial review powers of the State courts were not entrenched. That assumption has now been overturned by a decision with a dubious historical premise that nevertheless led to a result that everyone has welcomed.  Now that the interpretive approach to privative clauses is no longer needed, the High Court’s approach is much more straight forward – they can never diminish judicial review for “jurisdictional error”.

Shortly after the High Court had gutted a federal privative clause, it did the same to a limitation clause that had failed to allow the court the discretion to extend a strict statutory deadline for seeking judicial review.

With privative clauses and limitations clauses now being a waste of ink, attention is now turned to whether legislatures can use other methods to exclude some, or even all, of the basic tenets of judicial review. In all probability, the fight is still in its infancy, but it is producing some surprising results.

The common law’s procedural fairness requirements are famously indeterminate, but they did not start causing serious problems for the immigration bureaucracy until the mid-1980s. That was when the High Court expanded the protective reach of natural justice beyond legal rights to “legitimate expectations”, an expansion designed to accord fair process to migrants with no legal rights whatsoever to stay in the country. Natural justice challenges flourished, and immigration ministers responded by trying to replace the common law rules of procedural fairness with a statutory code of procedure. Their first attempt was to insert into the Act a very detailed set of procedures, supplemented by two novel features. The new procedures themselves came with a new sub-heading, namely:

Code of procedure for dealing fairly, efficiently and quickly with visa applications.

Further, they included a provision that a Minister who

deals with a visa application in a way that complies with [the new procedures] … is not required to take any other action in dealing with it.

The court acknowledged that the Minister had told parliament that his amendments would replace the common law’s natural justice requirements, but what counted was the meaning of the statutory text itself, which in this case did not actually say that it supplanted the common law.

The parliament responded by adding sections declaring that various procedural provisions were to be

taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters .. [dealt] with.

The High Court found two loopholes in that one. In 2010, the court said that the new procedures did not deal with visa applications made from abroad, with the surprising result that even though foreign-based applicants had no access to tribunal reviews, they did get some procedural protections denied to applications made within Australia.

The court went even further this year, in Minister for Immigration v Li. It struck down a migration decision because the tribunal had given no good reason for refusing to delay the hearing to give the appellant time to organise proper evidence of her work qualifications. The tribunal had forced on a hearing when it appeared fairly clear that a gap in the appellant’s documentation had been the fault of another government agency, and was in the process of being remedied.

The Li tribunal had a specific power to grant the adjournment request, but because the Act was silent on how to treat (ie, “deal with”) such requests, French CJ said that it had no procedure to supplant the common law’s natural justice requirements for dealing fairly with adjournment applications. That loophole might have been a step too far for the other judges; in any event, they chose not to explore it. Instead, they said that requirements of natural justice, “reasonableness”, and “rationality” overlap, and that even if (although this was not decided) the Act supplanted the common law’s natural justice, the tribunal had nevertheless to act reasonably or rationally in everything it did (French CJ also gave this as a reason for granting judicial review).

By itself, Li‘s manipulation of the labels was no great surprise, because the court has form in outflanking a statutory ban of one ground of review by using another ground in its stead. But in a decision that will have government lawyers pondering for some time, Li did much more than that.

Wednesbury unreasonableness was until Li the last card in an Australian lawyer’s pack – a plea for desparate counsel. In stark contrast to the English position, the Australian version of Wednesbury unreasonableness virtually required the challenged decision to have been so unreasonable that it was almost lunatic. Until Li, the fear was that anything less demanding would see Wednesbury slide inexorably into “merits in drag” (The epithet comes from New Zealand (Powerco Ltd v Commerce Commission at [24], but it has resonated in Australia, eg: Real Estate and Business Agents Supervisory Board v Carey at [58]). The court had been comfortable with the “process” grounds of judicial review, but distinctly uncomfortable with anything verging on a substantive, or qualitative, review ground.

Li now tells us that a decision need not be totally mad to be reviewable for unreasonableness, and without deciding whether “disproportionality” might become an acceptable review ground in its own right, it added that disproportionality is a good indicator of unreasonableness (at [30] and [72]-[74]). Just how unreasonable or irrational a decision must be before it will be reviewable for Wednesbury unreasonableness will vary between statutory contexts (at [67]), but it need not be mad:

The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it … (at [68])

The paradox is that this latest round of tightening the migration legislation’s procedural requirements has pushed the High Court into frankly substantive review. This might be only at the margins, but it was something the court had previously denied doing. Even Kirby J had once claimed (at [132]) that a court reviewing for serious irrationality or illogicality was looking only at process (namely, a reasoning process), rather than assessing the quality of the impugned decision.

Less than a month after the Li decision, Hayne J hinted at even further difficulties for governments seeking to limit judicial review of migration decisions (at [85]-[88]).  His Honour revived an opaque warning that the court had delivered more than a decade before (at [101]), in response to a government argument that the Act could be amended to grant the Minister plenary power over all non-citizens. The argument was that the parliament could stipulate that no breach of its requirements, nor any breach of common law requirements, would result in invalidity – in effect, that the entire Act was comprised of merely “directory” provisions. The odds of parliament actually doing that must be fairly remote, because governments themselves sometimes apply for judicial review, seeking to bring tribunals or agencies back into line. But the court’s warning is to the effect that this might not even be a “law”, because laws need to have some determinate content.

How things have changed. One can well understand a judicial distaste for the idea of an Act granting the Minister plenary discretionary power over aliens, but it is quite remarkable to threaten to strike down such an Act on the basis that it would not really be a law. Canberra’s first immigration Act ran for a mere 7 pages, which gave the Minister sufficient discretionary power to sustain the administration of a racist White Australia Policy. Almost 60 years later, and the replacement Act was still only 36 pages long, and its core was still a small group of sections granting virtually plenary power to the Minister. The Act’s first massive expansion did not occur until 1989 (when it grew by slightly more than 100 pages). It is now in two volumes totalling nearly 850 pages, and there is no sign of it getting any shorter. Is the court really suggesting that an Act without this level of detail is not a real law?

Mark Aronson is Emeritus Professor at the Law Faculty, University of New South Wales.

Suggested citation: M. Aronson, ‘Statutory Interpretation or Judicial Disobedience?’  UK Const. L. Blog (1st June 2013) (available at http://ukconstitutionallaw.org).

1 Comment

Filed under Comparative law, Judicial review