Monthly Archives: July 2013

Aileen McHarg: Access To Judicial Review In Scotland

aileenReaders of this blog will be familiar with the controversial reforms to the judicial review procedure in England and Wales (discussed by Elliott and by Bondy & Sunkin), premised on the need to reduce the burden it imposes on public services by reducing the time limit for certain types of cases, reforming the permission stage, and increasing the fees charged, and recently implemented by Civil Procedure (Amendment No. 4) Rules 2013, SI 2013/1412.  Judicial review procedure in Scotland currently differs from England and Wales in having no equivalent of the permission stage, nor any fixed time limit within which to bring an application.  However, notwithstanding that the rate of applications for judicial review per capita in Scotland is only around a third of that south of the border – 342 cases in 2010-11 (Scottish Government, Civil Judicial Statistics 2010-11) as against 11,200 cases in England and Wales in 2011 (Ministry of Justice, Judicial and Court Statistics 2011) – the 2009 Report of the Scottish Civil Courts Review (the ‘Gill Review’) noted that there had been a steady increase in the numbers of judicial review petitions and considered that these cases took up a disproportionate amount of court time.  It therefore recommended following England and Wales by introducing a leave requirement and a three month time limit.

These recommendations have now been taken forward by the Scottish Government in its consultation  on the Draft Courts Reform (Scotland) Bill.  Section 84 of the Draft Bill amends the Court of Session Act 1988 to provide that:

  1. An application to the supervisory jurisdiction of the Court of Session must be made before the end of (a) the period of three months beginning with the date on which the grounds arose or (b) such longer period as the Court considers equitable having regard to all the circumstances (section 27A).  In view of the decision in the Buglife case, the Scottish Government decided not to include any overriding requirement that petitions should be brought promptly.
  2. No proceedings may be taken in respect of an application to the supervisory jurisdiction unless the Court has granted leave for the application to proceed.  Leave may be granted only if the Court is satisfied that (a) the applicant can demonstrate a sufficient interest in the subject matter of the application and (b) the application has a real prospect of success.  There is no requirement for an oral hearing at the leave stage, but if leave is refused without an oral hearing the petitioner may within seven days request a review of the decision at an oral hearing before a different judge.  There is also provision for appeal to the Inner House (sections 27B-D).

The proposals have been welcomed by some of the respondents to the consultation  – particularly, unsurprisingly, by public authorities.  However, they clearly create additional barriers to access to judicial review in Scotland, and are open to criticism on two grounds.  First, as with the recent English and Welsh reforms, they are based on inadequate evidence of their necessity.  Secondly, there is a risk of producing unintended consequences that may increase rather than reduce the burden on court time.

Leave

The Gill Review’s rationale for recommending the introduction of a leave requirement was that it would assist in encouraging early concessions by respondents in well-founded cases and provide a means of filtering out unmeritorious applications, thereby freeing up court time to deal more expeditiously with cases in which leave is granted.  A striking feature of both the Gill Review and the Scottish Government’s consultation paper, however, is the complete absence of hard evidence put forward to support the proposition that there is a significant problem in Scotland with unmeritorious cases being brought.  No statistics are given as to the outcomes of judicial review applications, while the disproportionality of the amount of court time devoted to such cases is inferred purely from the fact that they take up a higher proportion of sitting days than the total number of petitions would suggest, without any analysis of the importance or complexity of judicial review applications compared with other types of cases.  The only extended empirical study of judicial review in Scotland (Mullen, Pick & Prosser, Judicial Review in Scotland, 1996), which concluded that neither leave nor a time limit was necessary, is not cited in either paper, and the more extensive English empirical literature is used highly selectively.  Bondy & Sunkin’s research for the Public Law Project, which found a high refusal rate at the permission stage, is relied upon to support the conclusion that the English procedures work well in filtering out unmeritorious claims and prompting early settlement.  But there is little or no discussion of the nuances of that research, nor consideration of its applicability in Scotland.

Bondy & Sunkin themselves are reluctant to conclude that a high rate of refusal of permission is evidence of a high number of unmeritorious applications.  For instance, they note that the refusal rate is significantly higher where cases are decided on the papers rather than at an oral hearing.  They also note the impact of tight time limits in increasing the likelihood of weak claims and artificially inflating the caseload by reducing the time available for settlement.  In addition, neither Gill nor the Scottish Government considers the potential impact of the introduction of a leave stage – and consequent applications for reviews and appeals – on both court time and litigation costs.  Murray Stable, in their response  to the consultation, point out that the English system is both slower and more expensive than the current Scottish process, and that legal aid is not currently available for leave proceedings in Scotland.  Finally, there is no mention of the objection in principle to the introduction of a leave requirement, i.e., that it makes access to judicial review dependent upon the exercise of judicial discretion.  Bondy & Sunkin’s research confirms earlier findings of a high variation in the rate at which permission is granted by different judges.  They attribute this to the subjective nature of the ‘sufficiently arguable’ criterion applied south of the border, and report a widespread perception that judges take account of factors other than the legal merits of cases.  The ‘real prospect of success’ test proposed by the draft Courts Reform (Scotland) Bill would appear to set an even higher hurdle for Scottish applicants to overcome, without being any less subjective.

As the Faculty of Advocates has stated in its response to the consultation, the real problem with judicial review in Scotland is arguably not that there are too many cases, but that there are too few, especially outwith the immigration and asylum field which, as in England and Wales, dominates the judicial review caseload.  Insofar as there is thought to be a problem in that particular area (and again there is no evidence), reforms have already been introduced to try to promote early settlement by requiring prior notification of applications for judicial review to the UK Border Agency.  Moreover, the Court of Session could follow the English lead by transferring more of the immigration and asylum caseload to the Upper Tribunal, but so far has not done so, other than in relation to cases challenging procedural rulings or procedural decisions of the First Tier Tribunal (Act of Sederunt (Transfer of Judicial Review Applications from the Court of Session) 2008, SSI 2008/357).

Time Limits

Although the introduction of a leave requirement seems to impose an unnecessary additional hurdle in the path of applicants for judicial review, the three month time limit would appear to be the more significant change and the greater barrier to access to justice.

As noted above, there is presently no specific time within which an application must be brought in Scotland, but applications can be dismissed for undue delay under the common law doctrine of mora, taciturnity and acquiescence.  Until recently, this was a relatively rare plea in judicial review cases but there has been a marked increase (the reasons for which are not clear) in its use in the past couple of years: a Westlaw search reveals sixteen cases in which the issue was raised since 1 January 2011, compared with only four in the previous two years.  However, mora works quite differently to a statutory time bar.  For one thing, the delay in bringing proceedings must be unreasonable, which is judged in all the circumstances of the case.  Secondly, there must be taciturnity and acquiescence as well as delay – essentially failure to object to the impugned decision and passive acceptance of its consequences.  The plea is therefore successful relatively infrequently, although there is clearly scope for inconsistency in its application.  For example, in McGinty v Scottish Ministers [2011] CSOH 163, a mora plea was upheld in relation to a challenge to the legality of the Scottish Ministers’ conduct of the strategic environmental assessment of their second National Planning Framework brought a year after notice of the assessment was published in the Edinburgh Gazette.  Although the petitioner claimed that he did not become aware of the proposal until seven weeks before he lodged his petition for judicial review, the court held that he ought to have been aware of it earlier.  By contrast, in OWA v Secretary of State for the Home Department [2013] CSOH 52, a mora plea was rejected in relation to a challenge to an immigration decision taken four years earlier.  The petitioner had understandably failed to appreciate the significance of a stamp in her passport, and hence could not be said to have acquiesced in the decision.  As in England and Wales, there can also be considerable uncertainty as to when time begins to run in relation to multi-stage or continuing decisions, and differing judicial attitudes as to the reasonableness of delaying resort to litigation (compare, e.g., Packard Ptnr [2011] CSOH 93  and Portobello Park Action Group Association v City of Edinburgh Council  [2012] CSIH 69.

The Gill Review took the view that mora was undesirably vague and not well-suited to a procedure designed to provide a speedy and effective remedy to challenge the decisions of public bodies.  In such cases, it argued, there was a public interest in challenges being made promptly and resolved quickly, hence it recommended the introduction of a fixed time limit.  Once again, however, there was a dearth of hard evidence offered in support of this proposal.  In fact, the only evidence provided as to the existence of a problem of undue delay was an anecdotal claim by one respondent government agency that it was still being served with applications in relation to immigration and asylum decisions several years after the they had been taken.  This, though, is an area in which the case for fixed time limits is particularly weak because decisions rarely have implications beyond the immediate parties.  Similarly, in response to empirically-based arguments that the three month time limit in England and Wales causes problems, particularly for vulnerable applicants, Gill preferred the viewed expressed by ‘a number of our respondents … that the time limit in England and Wales does not seem to unduly inhibit well-founded claims.’ (para 37).

Of course, the draft Bill does contain provision for the time limit to be waived in appropriate cases.  Nevertheless, a statutory time bar shifts the burden of proof from the respondent to establish that the delay was unreasonable to the petitioner to prove that it was not.  Moreover, there is a worrying suggestion in the Scottish Legal Aid Board’s response to the consultation on the draft Bill that petitions brought after three months are unlikely to obtain legal aid.  Accordingly, the probable consequence of the introduction of a time limit is that, in future, applications which would be heard at the moment will not be brought, or will be refused leave.  In addition, it is bound to produce more litigation concerning whether the time limit has been breached or ought to be waived.

Procedural Exclusivity

Another unintended consequence of the reforms is likely to be increased litigation over choice of procedure.  In Scotland, judicial review is an exclusive procedure for cases invoking the supervisory jurisdiction of the Court of Session.  However, the Supreme Court has recently confirmed in Ruddy v Chief Constable, Strathclyde Police [2012] UKSC 57 that it does not have to be used when the questioning of a public law decision is only ancillary to the establishment of some other form of action.  According to Lord Hope, the test is whether or not the decision complained about has to be reviewed and set aside in order to provide the litigant with a basis for his or her claim.

The danger that cases might be time-barred because they are erroneously brought via the wrong procedure is partially addressed via the proposal in the Consultation Paper to abolish the distinction between ordinary and petition procedure in the Court of Session (and in any case provision already exists for transferring cases into and out of the judicial review procedure – chapter 58.12 of the Rules of the Court).  However, it is likely that there will be an increase in deliberate attempts to circumvent the judicial review procedure and so to avoid the imposition of the time limit.  Since the test laid down in Ruddy appears easier to state than to apply (see, e.g., Shehadeh v Advocate-General for Scotland [2012] CSOH 196), it seems inevitable that more sterile procedural disputes of the type that caused such difficulties in England and Wales in the wake of O’Reilly v Mackman [1983] 2 AC 237 will arise.

Conclusion

It is disappointing to see such an important change to judicial review in Scotland being undertaken on such a flimsy evidential basis, and particularly surprising to see a government ostensibly committed to preserving the distinctiveness of Scots law so willing to follow the English approach, especially in a case where Scottish difference genuinely seems to be worth preserving.  It is probably unlikely that the Scottish Government will be persuaded to change its mind – not least because, as Justice Scotland points out in its consultation response, it will be one of the major beneficiaries of the proposed change.  One can only hope, therefore, that the Scottish Parliament will oblige it to do so.

Aileen McHarg is Professor of Public Law at the  University of Strathclyde.

Suggested citation: A. McHarg, ‘Access To Judicial Review In Scotland’  UK Const. L. Blog (30th July 2013) (available at http://ukconstitutionallaw.org)

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Christopher Forsyth: Principle or Pragmatism: Closed Material Procedure in the Supreme Court

forsyth1 In Al Rawi & Ors v The Security Service & Ors [2011] UKSC 34; [2012] 1 AC 531 the claimants (respondents in the Supreme Court) were bringing civil claims for damages against the defendants (appellants in the Supreme Court) alleging complicity by the defendants in their mistreatment by foreign powers (including detention at Guantanamo Bay). The defendants as part of their defence wished to place before the court “security sensitive material” – presumably the evidence of intelligence agents, or similar, denying the complicity – which for security reasons could not be disclosed to the claimants. Thus the defendants submitted that the court hold a “closed material procedure”. They envisaged that the evidence would be placed before the courts in closed session, i.e. a session from which the claimants and their representatives (and the public) were excluded. In the closed session the claimants would be represented by “special advocates” appointed by the court who would have access to the evidence but would not be able to take instructions from the claimants. Such procedures are controversial since they threaten the fundamental principles of open justice and natural justice. On the other hand, the national interest would doubtless be impaired, in some cases, if intelligence agents gave evidence and their methods and secrets were exposed in open court.

Statute makes express provision for such “closed material procedure” to be adopted by judicial bodies in several cases (for instance, the Terrorism Prevention and Investigation Measures Act 2011, Schedule 4, or the Counter-Terrorism Act 2008, Part 6); but there was no specific statutory provision applicable to civil actions for damages.  Thus the question arose whether the court had power at common law (or under its inherent jurisdiction) to craft such a procedure.  Lord Dyson, giving the lead judgment in which Lords Hope, Brown and Kerr concurred, was clear. He said:

“Closed material procedures and the use of special advocates continue to be controversial. In my view, it is not for the courts to extend such a controversial procedure beyond the boundaries which Parliament has chosen to draw for its use thus far. It is controversial precisely because it involves an invasion of the fundamental common law principles to which I have referred [viz, open justice and natural justice particularly the right to know the case to be answered]. I would echo what Lord Phillips said in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28; [2010]2 AC 269. ‘How [the] conflict [between full disclosure of the allegations against a party and other aspects of the public interest] is to be resolved is a matter for Parliament and for government, subject to the law laid down by Parliament’.”

That one might have thought was that. In the absence of clear Parliamentary warrant there could be no “closed material procedure” or its concomitant “special advocate”.  But what then is to be made of Bank Mellat v Her Majesty’s Treasury (No. 1) [2013] UKSC 38? Here the Supreme Court, in the absence of an express statutory warrant, held that it had the power to order a “closed material procedure” and indeed went on to hold such a procedure!

What had happened here was that the Treasury had made the Financial Restrictions (Iran) Order 2009 which in effect closed down the UK operations of Bank Mellat, an Iranian Bank, and its subsidiary. The Order was made under section 62 and Schedule 7 of the Counter-Terrorism Act 2008 which provides that amongst many other things if “the Treasury reasonably believes” that “the development or production of nuclear …. weapons in [a] country … poses a significant risk to the national interests of the United Kingdom”  it might give directions which had the effect mentioned. The directions had to be (and were) approved by affirmative resolution of Parliament within 28 days.

This decision could be challenged and was challenged by Bank Mellat by way of a statutory form of judicial review provided for in section 63 of the 2008 Act. The 2008 Act, in Part 6, provided for a “closed material procedure” in such proceedings. And the Treasury “took the view” (which was accepted by Mitting J at first instance) “that some of the evidence relied on by the Treasury to justify the 2009 Order was of such sensitivity that it could not be shown to the Bank or its representatives”; consequently that evidence was dealt before Mitting J by a closed material procedure (and there was a short closed judgment). On appeal to the Court of Appeal that material was dealt in a short closed session.  But now the matter had come before the Supreme Court. Part 6, and in particular section 73 of the 2008 Act, made provision for “closed material procedures” to be adopted in the High Court, the Court of Appeal and the Court of Session. But no mention was made of the Supreme Court. Where was the Parliamentary warrant for “closed material procedures” before the Supreme Court?

Lord Neuberger (with Lady Hale, Lord Clarke, Lord Sumption, and Lord Carnwath concurring), however, held that the Supreme Court had the power to conduct a “closed material procedure”. (Lord Dyson agreed with this outcome.) But here is the interesting part: the Supreme Court (or at any rate the majority) was not, in its view, disregarding or departing from Al-Rawi.  The statutory warrant to hold a “closed material procedure” was found or implied from section 40(2) and 40(5) of the Constitutional Reform Act 2005. Section 40(2) provides that “An appeal lies to the [Supreme] Court from any order or judgment of the Court of Appeal in England and Wales in civil proceedings” (emphasis added) and section 40(5) provides that “The [Supreme] Court has power to determine any question necessary to be determined for the purposes of doing justice in an appeal to it under any enactment.” Thus the majority reasoned: since “section 40(2) provides that an appeal lies to the Supreme Court against ‘any’ judgment of the Court of Appeal… that must extend to a judgment which is wholly or partially closed…[and] in order for an appeal against a wholly or partially closed judgment to be effective, the hearing would have to involve… a closed material procedure;.. such a conclusion is reinforced by the power accorded to the Court by section 40(5) to ‘determine any question necessary … for the purposes of doing justice’, as justice will not be able to be done in some such cases if the appellate court cannot consider the closed material” (Lord Neuberger, para 37). This is a powerful argument. How could the Supreme Court do justice in a case where there had been a “closed material procedure” in the Court of Appeal or at first instance, without looking at that material itself? And, ignoring the closed material, or revealing it before the Supreme Court, were not attractive alternatives.

But the dissenting judges (Lord Hope, Lord Kerr and Lord Reed) took a different view. Naturally much was made of Lord Hoffmann’s canonical words in R v Home Secretary, ex parte Simms [2000] 2 AC 115 at 131: “…the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.” Whatever else might be the case there had been no careful consideration by Parliament in enacting the 2005 Act whether the right to open justice should be overridden (in 2008!).

And Lord Kerr (paras. 124-5) explained why he was not persuaded by the claims of the pragmatic considerations of the majority. He said:

“Pragmatic considerations can – and, where appropriate, should – play their part in influencing the correct interpretation to be placed on a particular statutory provision. But pragmatism has its limits in this context and we do well to recognise them. As a driver for the interpretation of section 40(5) for which the respondent contends, pragmatism might seem, at first blush, to have much to commend it. After all, this is an appeal from courts where closed material procedures took place. How, it is asked, can justice be done to an appeal if the court hearing the appeal does not have equal access to a closed material procedure as was available to the courts whose decision is under challenge? And if one proceeds on the premise that the court will be more fully informed and better placed to make a more reliable decision, why should the Supreme Court not give a purposive interpretation to section 40(5)?

The answer to this deceptively attractive presentation is that this was never the purpose of section 40(5). It was not even a possible, theoretical purpose at the time that it was enacted. It was never considered that it would be put to this use. The plain fact is that Parliament introduced a closed material procedure for the High Court, the Court of Session and the Court of Appeal and did not introduce such a procedure for the Supreme Court. This court has said in Al-Rawi that it does not have the inherent power to introduce a closed material procedure. Only Parliament could do that. Parliament has not done that. And to attempt to graft on to a statutory provision a purpose which Parliament plainly never had in order to achieve what is considered to be a satisfactory pragmatic outcome is as objectionable as expanding the concept of inherent power beyond its proper limits.

“Closed material procedure” and “Special Advocates” will never be popular with lawyers bred, as they should be, with natural justice in their bones. So the courts, and particularly the Supreme Court, will be rightly sceptical of such devices. But Parliament has ordained that such procedures are lawful in certain circumstances. The inevitable tensions and discontinuities between what Parliament has ordained and the instincts of the courts are difficult to resolve. In this fallen world there will never be an easy resolution to this clash between pragmatism and principle. The clash between the protection of fundamental rights and the protection of national security (as well as loyalty to Parliament’s will) will always be acute.  Bank Mellat shows that the pragmatists are, on this issue, in the ascendency. But the issue is still contested and we have not heard the last of it.

In one respect the tension is resolved. Part 2 of the Justice and Security Act 2013 enacted in response to Al-Rawi provides for closed material procedures in civil proceedings; and section 6(11) provides that “relevant civil proceedings” means “any proceedings (other than proceedings in a criminal cause or matter) before (a) the High Court,  (b) the Court of Appeal, (c) the Court of Session, or (d) the Supreme Court” (emphasis added).  Alas, in enacting the Terrorism Prevention and Investigation Measures Act 2011, Schedule 4 (dealing with closed material procedures for TPIM) Parliament was presumably not mindful of Al-Rawi and refers only to the High Court,  the Court of Appeal and  the Court of Session! Presumably in TPIM cases the power to hold closed material procedures will be vouchsafed by section 40(2) & (5) of the 2005 Act.

Bank Mellat prompts a final reflection based on something that is not mentioned in any of the judgments. In R v The Lord Chancellor, ex parte Witham [1998] QB 575 Laws LJ suggested that common law constitutional rights – he had in mind the right of access to the courts but the right to open justice would serve as well –  could only be removed by express words in legislation.  He said: “I find great difficulty in conceiving a form of words capable of making it plain beyond doubt to the statute’s reader that the provision in question prevents him from going to court (for that is what would be required), save in a case where that is expressly stated. The class of cases where it could be done by necessary implication is, I venture to think, a class with no members”. But the bold approach by the majority in Bank Mellat suggests that limitations on constitutional rights may established by necessary implications from the relevant statute.

Christopher Forsyth is Professor of Public Law and Private International Law at the University of Cambridge.

Suggested citation:  C. Forsyth, ‘Principle or Pragmatism: Closed Material Procedure in the Supreme Court’  UK Const. L. Blog (29th July 2013) (available at http://ukconstitutionallaw.org)

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John Stanton: The General Power of Competence and Reshaping Local Public Service Provision

johnI wrote back in March about the way in which, despite efforts to decentralise autonomy to the local level and to inspire and empower citizens to get involved in local politics, Central Government seems reluctant to ‘let go’ and to give local authorities a free rein in relation to the exercise of local powers. New neighbourhood planning measures provided suitable example.

On a slightly different aspect of local autonomy, news comes this week that Communities and Local Government Secretary of State, Eric Pickles, has been catching up on the way in which councils are using the General Power of Competence (GPC), introduced by the Localism Act 2011 as a replacement to the well-being power.

The Chairman of the Local Government Association (LGA), Sir Merrick Cockell, notes that “the GPC is giving councils greater freedom and confidence to think outside the box, be innovative and develop new services and partnerships … However, despite the impressive examples of GPC use … it remains limited by constraints set by central government. Easing those restrictions would certainly help encourage others to unlocking the potential of using it.” Such restrictions include a limitation on the number of company structures permitted; charges made under the GPC only being made for discretionary services which recover costs but which do not generate profit or surplus; and a restriction to the effect that the GPC does not extend the ability of councils to create byelaws or undertake enforcement.

In a sense, then, it’s the same story – the government trying its utmost to push power down to the local level and to encourage councils to take the initiative and lead forward change and improvements through innovative use of local powers; but in reality, due to excessive restrictions, local government is only able to act innovatively and responsively within parameters set by centralised authorities, far removed from local problems and issues.

Consideration of the way in which the GPC has been used, however, comes at a time when the relationship between Central and Local Government, particularly within the context of local council funding, is very much at the fore.

With the Coalition recently announcing that local councils would suffer a 10% cut in funding from Central Government, serious consideration needs to be given to the way in which local government can operate effectively. Whilst such cuts are inevitable during these financially constrained times, coupled with over prescriptive and centralised supervision, there is perhaps a danger that local authorities could reach a point where they are too reliant on central government telling them what to do within the financial limits also set by Whitehall.

One solution, discussed at the recent LGA Conference, would be to merge key government departments that provide public services, predominantly through local councils, and give local authorities the power to decide issues of funding and public service provision for themselves. This would shift the emphasis away from Ministers and a large number of civil servants, currently controlling local public service provision, and ensure that such power is directed and controlled at a more appropriate level, jointly by those at Whitehall and the local governmental level. Whilst creating what has been termed ‘an office for England’ would be a dramatic change with far reaching consequences, the key objective of giving local authorities greater power and more say over their funding could more realistically be achieved. It would relieve decision and policy makers of the ‘one size fits all’ approach and empower councils to allocate money appropriate for a particular policy area.

There is, as was noted at the LGA Conference, an awful lot of waste generated by the relationship between Central and Local Government which comes as a result of wanting to push power down to the local level at the same time as ensuring that Whitehall retains directing control over the broad framework of public service provision. Eradication of such waste would be a further by-product of Sir Merrick’s proposal, which could lead more widely to a much-needed redrafting of the constitutional relationship between Central and Local Government and perhaps finally give effect to what many recent governments have promised – power to the people.

John Stanton is a lecturer in law at City University, London.

Suggested citation:  J. Stanton ‘The General Power of Competence and reshaping local public service provision’ UK Const. L. Blog (27th July 2013) (available at http://ukconstitutionallaw.org).

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Nick Barber: The Constitutional Inheritance of the Royal Baby: A Speculation.

Nick1It might be thought that there would be little need for a post on this blog about the arrival of the royal baby.  The new Prince of Cambridge – Your Highness, to his friends – is unlikely to play a significant constitutional role for sometime to come.  I found myself wondering, though, what the constitutional situation will be when, and if, he finally comes to the throne.  So, here is the post I plan to write in 2075 – and the way academic pensions are going, I will probably still be working then.

To some, it may come as a surprise that Britain continues to be a monarchy.  We escaped, or missed, the tide of republican constitutional reform that followed the death of Queen Elizabeth in the middle third of the century.  Australia and Jamaica were the first to go, followed, like a line of falling dominos, by Canada, and then by New Zealand.  Other territories followed suit, with most adopting an elected head of state or – more simply still – combining the role of head of state with that of prime minister.  However, it is still the case that the sun never fully sets on our new King’s realms: some small territories decided, for economic and foreign policy reasons, to retain the royal connection.  And the Privy Council, acting as their highest court, still provides a useful guarantee of legal certainty to the owners of the many corporations nominally residing on these islands.  Like these micro-realms, we in the United Kingdom have retained our monarchy.  This is only partly through choice: the moment has never seemed quite right for a public discussion of the wider issues raised by an hereditary head of state, there always seems to have been more important matters to worry about.  It could well be said that it is apathy, rather than a commitment to royalism, than has allowed the institution to last this long.

Within the United Kingdom, the King inherits a fractious and diverse realm.  Scotland will undertake its 10th vote on independence from the Union this coming autumn, and the low-levels of likely voter turn out make it hard to predict the outcome.  For many years, the royal family has worked hard to maintain the Union – without, of course, ever stating this position publically – and conferral of the title of ‘Duke of Edinburgh’ on the heir apparent reflects this commitment.  A popular argument in favour of the monarchy is that it serves this unifying function, bringing the United Kingdom together.  However, it has been hard to avoid the impression in the last fifty years or so that the royal family is tied to England, and based in London.  The former monarch regularly attended the openings of the English Parliament and, of course, of our federal, British, Parliament, but was less commonly seen in the Scottish and Welsh Parliaments.  Whilst the nationalist movement in Scotland remains formally committed to the monarchy, it is hard to believe this commitment is very deep.  If – or, perhaps, when – Scotland finally votes for independence, it is likely to reassess its connection with royalty.

The King takes the throne following the abdication of his father.  It might reasonably be asked if we now have enough evidence to talk of a ‘convention’ of abdication.  Queen Elizabeth was the last monarch to reign until her death – though for the last ten years or so of her life Prince Charles acted as regent in all but name.  He abdicated shortly afterwards, having reigned for only a year, citing old age and a passionate desire to express his opinions about a wide range of matters more openly.  The new King’s father, the former Prince William, has just stepped down at the ripe old age of 91, having served for about 40 years.  Abdication seems to have become the standard way for the Crown to pass between generations.

The need for abdication as a regular feature of constitutional monarchies became apparent in the first half of this century.  The monarchies of the Netherlands and Belgium began this trend.  The ever-improving standards of healthcare – and the healthy lives led by the privileged sections of society from which monarchs are drawn – necessitated abdication as a standard constitutional device.  It became evident that without abdication states risked a succession of extremely elderly kings and queens, as the crown was passed from centenarian to octogenarian.  Can we now say that there is a convention in the United Kingdom that the Monarch will step down on reaching old age?  If this is a convention, there is a substantial amount of uncertainty involved in it.  It does seems that the Monarch will step aside when he or she feels that age is inhibiting her work, but whether that is 85 – as with Charles – or 91 – as with William – depends on the holder of the office and the pressure they are subjected to by the wider political community.  Perhaps a better – and more humane – approach would be to set a statutory retirement age for the monarch.  He or she would be compelled to stand aside, even if still capable of undertaking the duties of the office.

It might be objected, though, that the capacity to choose the date of their retirement is pretty much the last constitutional power that the Monarch possesses.  Removing this choice would leave the Monarch completely powerless, little more than a national mascot.  A clear trend of the twenty-first century has been the steady reduction in the political power and influence of the Monarch.  Most of the Monarch’s legal powers were lost by the start of the century – the prerogatives of the Crown were and still are exercised by those accountable to the Parliaments of the United Kingdom – but the Monarch’s political influence has also declined.  This is partly due to the holders of the office.  Queen Elizabeth – it subsequently transpired – had been able to exercise a small, but significant, influence on government policy.  Her weekly meetings with the Prime Minister combined with her understanding of politics and wide public popularity enabled her to shape some aspects of public policy under some prime ministers.  Her successors had far less clout.  The emergence of Prince Charles’ letters to Ministers – after many court battles – did not present him in an attractive light.  His views on farming, hunting, and – most damningly – homoeopathy did not enhance his public position.  For the short period he was monarch, he had little influence; ministers were keen to distance themselves from his views.  And when Prince William then took the throne it seems he had little interest in the detail of public affairs, content to leave matters entirely to the elected part of the constitution.  Perhaps wisely, he may have concluded that to exercise influence, or even to seek to exercise influence, was – first – likely to be leaked to the public, and – second – likely to harm the institution of the monarchy.

A further reason for the decline in royal power, and one that was not predicted at the time, was the shift of the United Kingdom to a formal federal structure in the middle part of the century.  The Prime Minister of the United Kingdom still has regular meetings with the Monarch, but many of the important day-to-day decisions are made by the first ministers of England, Scotland, Wales, and Northern Ireland.  It could easily be argued that the Prime Minister exercises substantially less power that any of these other four.  Indeed, the United Kingdom Parliament, and government at the United Kingdom level, is often very weak.  When the first ministers collectively decide on a policy, the United Kingdom Prime Minister is almost always compelled to accept their decision.  Even in matters of foreign policy, England and Scotland have – through offices overseas that are embassies in all but name – often as much influence as the formal representatives of the United Kingdom.

A possible corollary of this decline in power has been a decline in the heir apparent’s willingness to avoid making politically controversial statements.  Whilst his father was noted for his public restraint, our new King has spoken out on many issues – feeling, perhaps, that if he will be denied influence whilst in office, he should at least be allowed to express his views like any other citizen.  It has even been argued that along with the decline in royal power should come the right to vote: if our new King lacks special constitutional powers, why shouldn’t he at least enjoy the ordinary constitutional power the rest of us exercise?

In conclusion, as we start to look forward to the invigorating spectacle of the coming coronation – and turn our eyes away from the un-inspiring stories of the scandals surrounding the next generation of royalty – it might now be time to ask whether monarchy is really a fit institution for the coming twenty-second century.  True, some of the oddities have ended.  The Monarch is no longer the head of the Church of England – a divorce that brought great relief to each party – and no longer has any real political power.  But we might still worry about the symbolism of having a head of state who is always drawn from the most privileged part of our society.  More pressingly, perhaps, we might also worry about the unfair and unhealthy pressure that this puts on holders of this office.  Our new King has had to put up with 62 years of relentless scrutiny, and his capacity to choose his own path in life has been radically constrained.  Maybe, in 2075, it is time to think – cautiously – about change.

Nick Barber is a Fellow of Trinity College, Oxford, and University Lecturer in Constitutional Law. 

Suggested citation: N. W. Barber, ‘The Constitutional Inheritance of the Royal Baby: A Speculation’ UK Const. L. Blog (24th July 2013) (available at http://ukconstitutionallaw.org).

Readers are invited to submit, through the comments section, their own predictions for the state of the constitution when the royal baby takes the throne.  A prize will be awarded – in 2075 – for the most accurate.

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Mike Gordon: Prince Charles’ Correspondence Back in Court – Reflections on R. (Evans) v. Attorney General

mike-gordon-pictureThe Administrative Court is the latest body to become involved in the on-going saga related to disclosure of the Prince of Wales’ correspondence with government departments.  In the recent case of R. (Evans) v. Attorney General [2013] EWHC 1960 (Admin), the Guardian journalist Rob Evans challenged the legality of the government’s decision to veto disclosure of the relevant correspondence between Prince Charles and a range of government ministers.  Disclosure of most of this material had been ordered under the Freedom of Information Act 2000 (FOIA) by the Upper Tribunal, allowing an appeal from Evans against the earlier decision of the Information Commissioner that the correspondence sought could be withheld.

In particular, the Upper Tribunal ruled that what it called ‘advocacy correspondence’ – communication with government departments in which the Prince of Wales sought to advance a specific view or promote a particular cause – ought to be disclosed because ‘it will generally be in the overall public interest for there to be transparency as to how and when Prince Charles seeks to influence the government’, [2012] UKUT 313 (AAC), [4].  Such advocacy correspondence was not, in the view of the Upper Tribunal, covered by the constitutional convention that the heir to the throne can be (confidentially) instructed in the business of government in preparation for rule.  Nor was the general public interest in transparency outweighed by other factors advanced as cautioning against disclosure, which included a general desire to maintain confidentiality between correspondents, the protection of the Prince of Wales’ political neutrality, or the potential for a ‘chilling effect’ on the frequency or frankness of communication between the government and the heir to the throne.

After the appeal of Evans was allowed by the Upper Tribunal, the government moved to exercise its power under s.53(2) of FOIA to veto the disclosure of Prince Charles’ advocacy correspondence.  The Attorney General, on 16th October 2012, issued a certificate that he had, as required by the FOIA, on ‘reasonable grounds’ formed the opinion that there has been no failure to comply with the government’s general duty to provide access to information on request (set out in s.1(1)(b) FOIA).  The certificate was also laid before both Houses of Parliament, and set out the reasons for the decision, as explicitly required by s.53(3)(a) and s.53(6) FOIA respectively.  The government’s published policy on the use of the s.53 veto, carried over from previous Labour administrations, was also said to have been complied with, the Attorney General confirming that this was considered to be an ‘exceptional’ case.

In the most recent case, Evans sought to challenge the legality of the Attorney General’s certificate by judicial review.  The Administrative Court rejected his arguments that (i) the decision to exercise the veto was generally unreasonable; and (ii) the very availability of the veto in relation to the ‘significant’ elements of the correspondence classed as ‘environmental information’, and therefore subject to the Environmental Information Regulations 2004, was unlawful, due to its incompatibility with the EU Directive (2003/4/EC) the 2004 Regulations sought to implement, and Article 47 of the EU Charter of Fundamental Rights.  Leaving aside discussion of argument (ii) – a narrower issue which related only to part of the advocacy correspondence ordered to be disclosed by the Upper Tribunal – three points seem especially worthy of consideration in this post.

First, the Administrative Court sought to make it explicitly clear that the exercise of the veto was to be subject to ‘close judicial scrutiny’ because of the very nature of the power in question.  Davis LJ, giving the main judgment of the court, noted that the veto was ‘a remarkable provision’, in so far as it enabled an executive override of judicial decisions, [79].  Judge LCJ was perhaps even more strident, describing s.53 as a ‘constitutional aberration’, [2].   Both judges rejected the government’s attempt to invoke the classic notion of Wednesbury unreasonableness ‘so as to introduce some lesser… requirement’ of review (Davis LJ at [89], Judge LCJ at [14]).  Yet the standard of review ultimately employed did not seem as intrusive as might have been expected from the way it was advertised by the judges.

The substantive quality and coherence of the reasons advanced by the government were not interrogated in significant detail, with much argument dedicated instead to the question of whether a minister could exercise the veto simply because they disagreed with a previous decision.  Davis LJ rejected this argument, holding that it would ‘greatly narrow the ostensible ambit of s.53’ if it were accepted that the veto could only be used where a previous decision had been based on an error of fact or law, [110].  Indeed, Davis LJ held that ‘disagreement with the prior decision (be it of Information Commissioner, tribunal or court) is precisely what s.53 contemplates, without any explicit or implicit requirement for the existence of fresh evidence or irrationality etc. in the original decision which the certificate is designed to override’, [111].  Evidently influenced by the fact that the Information Commissioner and the Upper Tribunal had both previously, albeit to varying degrees, accepted the cogency of the arguments for non-disclosure (see e.g. [113]), and the fact that the Attorney General’s reasoning ‘had regard to and has engaged with the decision of the Upper Tribunal’, [73], Davis LJ held that the government had demonstrated reasonable grounds for its decision to veto.  The reasons expressed were ‘proper and rational’; indeed, in basic terms ‘[t]hey make sense’, [113].

This decision is likely to be disappointing for many, especially those who believe that transparency as to royal influence over government business is a matter of the utmost democratic importance.  Indeed, the Court of Appeal’s decision was (unsurprisingly) the subject of critical comment in an editorial in The Guardian: ‘having painted the veto as indefensible, the judges then elected to uphold it’.  Yet while political dissatisfaction with the government’s decision to exercise the veto is very well founded – to conceal the contents of letters which are not politically neutral to protect the perceived political neutrality of the Prince of Wales seems circular at best – the Court of Appeal’s judgment that the government’s action was legally reasonable seems sound.

To ask courts to go further and overturn a decision which we may find politically unreasonable would be to distort the legislative scheme created by Parliament.  While the Court of Appeal felt that the power of veto granted to the government was a profound one, Davis LJ also noted that this ‘seems to have been appreciated by Parliament in enacting s.53’, with a number of conditions therefore placed upon its exercise, [81].  Indeed, noting that ‘part of the scheme of the FOIA is to construct a series of available exemptions – whether absolute or qualified – to modify the general requirement of disclosure’, Davis LJ recognised that s.53 itself, understood with respect to the broader purpose of this legislative regime, could be conceived as one of the ‘checks and balances which Parliament has thought necessary to provide’, [83].  We may agree or disagree about whether the FOIA creates the best balance between disclosure and exemption of official information, yet to encourage courts to depart freely from this framework is hardly a democratic solution to what is, undoubtedly, a democratic problem.

Secondly, with particular respect to the judgment of the Lord Chief Justice, the invocation of the ‘constitutionality principle’ in this context is striking, [11].  What precisely this means is unclear, but Judge LCJ argued that only judicial oversight of the exercise of this veto power – a power effectively for a government minister to override a judicial decision – could offer ‘the necessary safeguard for the constitutionality of the process’, [14].  What precisely the notion of ‘constitutionality’ adds to the discussion in this context is also unclear, and Davies LJ’s leading judgment does not seek to rely on this principle, opting more straightforwardly to seek to interpret the meaning of s.53 both literally, and as part of the broader legislative scheme.

What is clear is that some judges are becoming much more comfortable in making appeals to such abstract public law principles when deciding specific cases, whether calling upon those principles is strictly necessary to resolve the case before them or not.  And, with this ‘principle of constitutionality’ a prime example, these principles are often utilised without their contestable nature being recognised.  In Evans, the notion of constitutionality seems to be employed to demonstrate that government activity must be inherently limited and strictly controlled by law.  Yet the limitation of government is not the predetermined purpose of constitutional law and practice (as Martin Loughlin, to offer just one leading example, has persuasively argued).  Judicial appeals to the notion of constitutionality which are based on this background assumption are therefore liable to continue to be greeted sceptically – especially when unnecessary to dispose of the case before them – by those concerned about the rhetoric and reality of judicial supremacism.

Thirdly, although the outcome of Evans is that Prince Charles’ advocacy correspondence is not to be disclosed (The Guardian has, however, confirmed it will appeal the decision), the FOIA has still produce some limited degree of transparency.  In having to explain and justify its exercise of the veto to a legally reasonable standard, as the FOIA explicitly requires, the government was forced to reveal a number of compelling facts about the nature of the Prince of Wales’ correspondence with government departments.  The letters reflected Prince Charles’ ‘most deeply held views and beliefs’, were ‘in many cases particularly frank’, and ‘contain remarks about public affairs which would… potentially have undermined his position of political neutrality’ (see [12] of the Statement of Reasons, appended to the Court of Appeal’s judgment as Annex A).

As the FOIA was amended in the final days of the previous government to make such future correspondence absolutely exempt from disclosure (by s.46 and Schedule 7 of the Constitutional Reform and Governance Act 2010), these somewhat cryptic insights into the nature of the relationship between the heir to the throne and the government may be the last made public for some time.  Yet while the details of how the Prince of Wales sought to influence government policy may remain concealed, as do whatever consequences may have been the result, the government itself has conceded, in exercising and justifying the veto, that such attempts have been made.  Having this established officially and beyond doubt, in such intriguing terms, is no small achievement.  Those who find the level of continued support for the (‘constitutional’) monarchy difficult to understand may simply have to draw on this to console themselves that the political neutrality of the heir to the throne has been exposed as a fiction, and hope that constitutional practice can evolve in such a way as to minimise future royal influence over the government.

Dr Mike Gordon is a Lecturer in Public Law at Liverpool Law School, University of Liverpool.

 Suggested citation: M. Gordon, ‘Prince Charles’ Correspondence Back in Court – Reflections on R. (Evans) v. Attorney General’   UK Const. L. Blog (22nd July 2013) (available at http://ukconstitutionallaw.org)

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Event by BPP Law School: After the Leveson Report – where next for Press Regulation?

UKCLG members and readers of this blog are invited by Chris Monaghan and Tom Bennett, Convenors of “Fresh Perspectives on Law” at BPP Law School, to the following event :

31 July 2013, 6pm, BPP Waterloo More details here

A discussion panel on the aftermath of the Leveson Inquiry into the Culture, Practice and Ethics of the Press.

The Leveson Inquiry and its subsequent report has provoked much debate and controversy surrounding the future of the press and the extent of any regulation of its activities. At the same time, it has re-opened the debate about the adequacy of current legal protections for individual privacy. Lord Leveson’s report proposed the establishment of a system of press self-regulation underpinned by statute. The response of the Government has been to propose self-regulation underpinned by Royal Charter. All the while, elements of the media decry proposals for greater regulation as unacceptable infringements upon free speech, whilst victims of press intrusion worry the proposals will be ineffective in ensuring sufficient protection for privacy. Can an effective balance be struck between privacy and press freedom? And, if so, what is that balance to be?

Panellists include:

  • Professor Lorna Woods, City University
  • Jonathan Coad, Partner at Lewis Silkin LLP
  • Jane Winter, Former Director of British Irish Rights Watch
  • Tom Bennett, Lecturer in Media Law, BPP Law School

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UK Constitutional Law Group: IACL IXth Congress, Oslo, 16 to 20 June 2014

IACL logoThe International Association of Constitutional Law and The Department of Public and International Law at the University of Oslo invite you to participate at the IXth World Congress “Constitutional Challenges: Global and Local”.

The IACL holds a World Congress every 3-4 years. The IXth Congress will take place in Oslo from 16 to 20 June 2014 and is organised by the Department of Public Law at the University of Oslo in collaboration with the Executive Committee of the IACL. The venue for the Congress is the historic Main Building of the University of Oslo, which is in the centre of the city.

The Congress will take place just one month after the 200th anniversary of the Norwegian Constitution which today stands as the second-oldest written Constitution in the world. It is expected that between 300 and 500 participants will attend the Congress, from all regions of the world.

The working languages of the Congress are French and English and simultaneous translation will be provided in plenary sessions.

The IACL uses two principal formats for the scholarly programme of a World Congress: plenary sessions and workshops. Plenary sessions are open to all participants while workshops are smaller and discussion-based. There will be four plenary sessions in this Congress, each of which lasts for 3½ hours.

Details of the workshops can be found here.

1: Constitutional responses to terrorism
2: Sub-national constitutions in federal and quasi-federal constitutional states
3: Constitutional studies of free trade and political economy
4: Social Rights and the challenges of economic crisis
5: Judicial and extra-judicial conversation on the Constitution
6: The constitutional challenges of immigration
7: Sexual and reproductive rights : liberty, dignity and equality
8: The Citizen and the State in the Digital Age
9: Constitutional identity and constitutionalism beyond the nation state
10: The constitution and illiberal democracies
11: The new spring of constitution-making
12: Constitutions and financial crisis
13: Constitutional dimensions of political parties and elections
14: New challenges to the freedom of the media
15: The transformation of the principle of the separation of powers
16: Direct democracy
17: Federalism, community identity and distributive justice

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