Monthly Archives: August 2013

Tom Hickman: The High Court Rides to the Aid of Richard III

TomWhilst cases often raise issues of constitutional importance, seldom has the subject matter of a legal claim related to matters of such constitutional moment as that concerning the discovery of the mortal remains of Richard III.

Richard III died in Bosworth Field in 1485, fighting for his life and his Kingdom. He was the last English King to die on the battlefield. His death marked the end of the Wars of the Roses and drew the Plantagenet era to a close. It was succeeded by the House of Tudor, which ruled England for 118 years. Richard III’s death is often taken to mark the end of the Middle Ages themselves. It was on any view a turning point in English history.

Richard had become King of England in highly controversial circumstances. His brother, Edward IV, had secured the throne with Richard’s support in April 1471, at the battle of Barnet. Upon Edward’s death in 1483 Richard was appointed Lord Protector: Edward’s eldest son, Edward V, was aged twelve and his younger brother nine. The two boys, however, were taken to the Tower of London and, after a time, were never seen again. The children were declared to be illegitimate and Richard assumed the throne.

Historians have divided over whether Richard was the deformed arch villain portrayed by Shakespeare, or an upright and generous King who was the victim of Tudor propaganda. It has meant that Richard III is one of the most controversial figures in English history.

His death and burial themselves have not escaped controversy. One view of the matter was that his body was taken to Leicester (because it was nearby the battlefield) where Henry Tudor put his body on display and had it buried without any of the pomp or circumstance normally afforded to Kings, albeit in consecrated ground at the church of Grey Friars. However, the site of the Church was lost along with any remains that might have been there.

It was thus utterly extraordinary when, last year, the site of the church together with the remains of Richard III were found under a car park in Leicester.

As Mr Justice Haddon-Cave stated in a judgment given on 15 August 2013: “The archeological discovery of the mortal remains of a former King of England after 500 years is without precedent.” It was all the more important given the historical significance of Richard III’s death and the uncertainty surrounding it.

The skeleton found was a man in his early thirties who suffered from scoliosis: not a hunchback and no withered arm, but a condition that would have reduced Richard III’s height, twisted his spine and led to one shoulder being higher than the other. He had, indeed, been killed by fatal blows to the head in battle and had been roughly placed, without a coffin, under the Choir: see David Baldwin, Richard III (Amberley 2013) pp. 230-232.

On 4th February 2013 following DNA tests and other investigations, the University of Leicester announced that the remains were beyond reasonable doubt those of Richard III. The discovery had been due to remarkable collaborative detective work by the University and private individuals with an amateur interest in the reign of Richard III.

Leicester University had applied for and been granted an exhumation licence from the Secretary of State for Justice relating to any remains found at the site. At that stage the prospect of actually finding the body of Richard III was regarded by the University as remote: the license application itself described the prospect as an “unlikely event”. It proposed that if such remains were found they should be reinterred at Leicester Cathedral. Precisely why this location was chosen is not known (it is close to the site of Grey Friars).  The Secretary of State for Justice granted the licence on these terms and refused to reconsider it once the remarkable archeological discovery was confirmed.

In May 2013, and following pre-action correspondence, judicial review proceedings were issued against the University of Leicester and the Secretary of State for Justice challenging the decision to reinter the body at Leicester Cathedral. The claim was formally brought by the Plantagenet Alliance Limited, a campaign organisation incorporated to represent the views of persons who share two objectives. The first is to secure full consideration of decision as to where the remains should be reinterred. The second is to persuade the Government that the body should be placed in York Minister – York befitting a Plantagenet King. The claim was funded by public donations. The claim itself only relates to the first of these goals: the need for a public consultation before any final decision is made as to where Richard III should finally be laid to rest.

The Secretary of State and the University of Leicester sought to have the claim dismissed at the permission stage. They claimed that there was no duty to consult anyone at all before making a decision as to where Richard III should be reinterred. Absent any statutory duty to consult and absent any legitimate expectation that a consultation exercise would be carried out, they argued, it was “wholly unarguable” that there was any requirement to consult.

There is case law that supports the view that a duty to consult requires a statutory or legitimate expectation hook (e.g. In Re Westminister City Council [1986] AC 668, 692-693). But the two overriding duties that must be complied with are the duty of fairness and the duty to take into account all relevant considerations and a requirement to consult can arise from either. It is very difficult to see how these requirements, particularly the latter, could be complied with in the context of this decision on the basis of the views of the Ministry of Justice and Leicester University alone. And as we know, in public law especially, context is everything.

The decision gives rise to complex and competing issues of religious, historical, constitutional, academic and even commercial nature. There are a number of people and organisations that have a legitimate  interest in making represetations. One need only think for a moment of relevant questions that fall to be answered: What are the constitutional conventions relating to the burial of English Monarchs? Were Richard III’s wishes known and what significance should be accorded to them? What would be the most fitting historical location for the remains – York Minister, Westminster Abbey, Barnard Castle, Fotheringhay and other locations have all been suggested? What are the views of the Catholic and Anglican Churches (Richard III was, of course, a Catholic)? What descendants does he have and what are their views? What weight should be afforded to the fact that Leicester University was instrumental in finding the remains? And what are the views of those others who assisted in their recovery? What are the educational and tourism benefits to Leicester compared with other locations and what weight should these be afforded?

The list could be lengthened without difficulty. Put shortly, the decision as to where to reinter the remains of Richard III following their extraordinary discovery last year raises issues of such significance and of such diverse nature that a consultation is necessary if an informed and sound decision is to be made. As the Claimant put it, the approach that had been taken was essentially that of “finders keepers”.

Haddon-Cave J was even more forthright. In an unusual fully reasoned judgment granting permission, he carefully and in my view convincingly exposed the infirmity of the Defendants’ position. The case, he said, “involves the remarkable, and unprecedented, discovery of a King of England of considerable historical significance, who died fighting a battle which brought to an end a civil war which divided this country.” It is “obvious” he said, that there is a duty to “consult widely” arising “from this singular fact alone.” As he eloquently put it, the discovery, “touches upon our history, heritage and dignity.” (at [34])

In other words, the Judge held that the decision as to what to do with the exhumed remains of Richard III is of such national significance that, legally and constitutionally, there must be a full opportunity for the views of interested persons and bodies to be made known and then taken into account.

If a legitimate expectation hook had to be found on which to hang a duty to consult, one is in any event available, as the Judge also held. Applicable guidance issued by a panel of experts, including Home Office Representatives, expressly refers to the need for decisions about the treatment of human remains being made “via appropriate consultation” in order to ascertain the views of all of those persons with legitimate interests in the question.

The Defendants also resisted the claim on grounds of standing and delay. In the light of the importance of the claim Haddon-Cave J easily rejected the arguments. Those who supported the claim had a genuine interest in the decision about where to reinter Richard III and had acted with reasonable promptness after the DNA results were announced in February 2013 (There also does not appear to have been any prejudice identified by the Defendants.) The fact that a company was incorporated to facilitate the claim was neither here nor there.

Just as significant, however, were two orders that the Judge made. First, he made an order requiring the University and the Secretary of State to disclose all documents relating to their decision to reinter Richard III, and who had been included in the process of decision-making and what their views were. The Defendants had argued that they had no duty of disclosure on the surprising ground that the claim was “weak” and had not been granted permission. But it was not contended that the claim was vexatious and it is incumbent on Defendants to provide full and accurate information, and if necessary and proportionate also documentation, showing how a decision was reached and what was taken into account, even before the permission stage. This is central to the practical effectiveness of judicial review. Public authorities and those exercising public functions are not permitted to keep their cards close to their chests, as the Defendants in this case apparently sought to do.

One matter that will become clear from the disclosure will be whether any, limited, consultation took place. If a limited consultation did take place then the Claimant will have an additional ground of challenge: that having conducted a consultation the consultation failed to comply with the so-called Sedley principles for lawful consultation.

The second order made by the Judge was a protective costs order preventing recovery of costs against the Claimant in the event of the Defendants prevailing. This also reflected the general public importance of the challenge. Given the ‘costs follow the event’ approach of English law, the development of the jurisdiction to grant protective costs orders is also vital to the effectiveness of judicial review as a means of holding public authorities to the law. The Claimant had barely sufficient resources to pay the costs of issuing the proceedings. The Secretary of State had not only resisted the grant of a protective costs order but had asked the court to require the Claimant to give security for the Government’s costs, something that would no doubt have brought the litigation to an abrupt end. By necessary implication, this request was refused by the grant of a protective costs order.

The judgment of Haddon-Cave J represents—if you will excuse a metaphor from a different historical epoch—the writing on the wall for Defendants. He concluded his judgment with some final comments and a recommendation that leave one in no doubt what he made of the Defendants’ position. He noted the irony that the Wars of the Roses are reputed to have started when John Beaufort and Richard Plantagenet plucked red and white roses from the gardens in the Temple, and now, in a final unexpected Act, they have returned to the Temple in the form of an argument about the final resting place of Richard III. But he said it would be “undignified and unedifying” for the issue of such constitutional significance and sensitivity to be argued about further in the courts. The Judge “strongly” recommended that the Defendants refer the issue to an independent advisory panel made up of suitable experts and Privy Counsellors, who can consult and receive representations from all interested persons and bodies.

It is greatly to be hoped that the suggested advisory panel is established. It would ensure the issue is properly and fully considered, free of any entrenched positions and potential for vested interests.  The Judge was entitled to make such a suggestion given his wide powers under the Civil Procedure Rules and given his views of the merits of the case. Indeed, it may be that it is only through such a procedure that a lawful decision can be made in this unique case.

As a permission decision, the judgment of Haddon-Cave J may be of little standing as a legal precedent, but it will be a worthy footnote to the historical record if, as may be, it is the final word in this litigation. But whatever happens, Haddon-Cave’s judgment will not be the last word on the question of what should be done with the bones of the ever-controversial King Richard III.

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

Suggested Citation: T. Hickman, ‘The High Court Rides to the Aid of Richard III.’ (29 August 2013)  (available at http://ukconstitutionallaw.org).

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Stephen Tierney: Towards a Fair and Democratic Process? Regulating the Referendum on Scottish Independence

stierneyThe referendum on independence is still a year away and already attention is focused on major substantive issues such as economic relations between an independent Scotland and the United Kingdom, and the ease or difficulty with which an independent Scotland would achieve membership of the European Union. What is often overlooked is that the credibility of the outcome of the vote on 18 September 2014, whatever that might be, will depend greatly on the legitimacy of the referendum process itself.

Already the procedural rules for the referendum have been taking shape, with one bill now enacted and the other before the Scottish Parliament. The franchise rules for the referendum are set out in the Scottish Independence Referendum (Franchise) Act (‘the Franchise Act’), introduced into the Scottish Parliament on 11 March, and enacted on 7 August. This Bill required to pass through the Scottish Parliament quickly to facilitate the registration of voters, particularly new voters since the franchise for the referendum is extended to 16 and 17 year olds. The Scottish Independence Referendum Bill (‘the Referendum Bill’) was introduced into the Parliament on 21 March 2013 and is expected to be passed in November.

The legislation was preceded by the Edinburgh Agreement signed by the United Kingdom and Scottish Governments on 15 October 2012. This, and the associated ‘memorandum of agreement’, provided that the referendum should have a clear legal base; be legislated for by the Scottish Parliament; be conducted so as to command the confidence of parliaments, governments and people; and deliver a fair test and a decisive expression of the views of people in Scotland and a result that everyone will respect. This has been formalised by an Order in Council (per section 30 Scotland Act 1998) which devolves to the Scottish Parliament the competence to legislate for a referendum on independence which must be held before the end of 2014 (Order in Council, para 3).

In this post I will summarise some of the main points to come out of this legislation: the franchise rules for the referendum, the question that will be asked, the role for the Electoral Commission, the Referendum Period, and the parameters for other important process issues, in particular, the funding and expenditure rules.

Franchise

The general franchise demarcation set out in the Franchise Act is uncontroversial. The franchise for the referendum is to be the same as for Scottish Parliament elections and local government elections (Franchise Act, section 2), mirroring the franchise used in the Scottish devolution referendum in 1997. One consequence is that EU citizens who are resident in Scotland will be able to vote in the independence referendum.

One major difference from the 1997 franchise, however, is the provision in the Franchise Act extending the vote to those aged 16 and 17 (Franchise Act, section 2(1)(a)). This is a radical departure; never before have people under the age of 18 been entitled to vote in a major British election or referendum (the age of 18 as the threshold for UK elections is set out in the Representation of the People Act 1983, section 1(d)). Another notable provision of the Franchise Act excludes convicted persons from voting in the referendum if they are detained in a penal institution (Franchise Act, Section 3). This exclusion will apply even if the current ban on prisoners voting is modified in relation to elections prior to the date of the referendum. This has been a controversial topic in the United Kingdom ever since the European Court of Human Rights ruled that the blanket ban on prisoner voting in UK elections violated Article 3 of Protocol 1 of the European Convention on Human Rights (Hirst v the United Kingdom (No 2) [2005] ECHR 681). It would seem, however, that section 3 of the Franchise Act does not violate the Convention since A3P1 guarantees ‘the free expression of the opinion of the people in the choice of the legislature’ (emphasis added), which is generally taken to refer exclusively to parliamentary elections and to exclude referendums.

 The Question

The Referendum Bill contains a raft of important provisions which, inter alia, frame the question to be put to voters. The question as originally proposed by the Scottish Government has been changed. The formulation set out in the White Paper ‘Your Scotland, Your Referendum’, published in January 2012, was: ‘Do you agree that Scotland should be an independent country?’ Following conclusion of the Edinburgh Agreement, the Scottish Government decided to send its proposed question for review to the Electoral Commission. The Commission in its subsequent report took issue with the phrase ‘do you agree’, suggesting it could lead people to vote Yes. It therefore suggested a change to the question. This has been accepted by the Scottish Government and the new question is now contained in the Referendum Bill: ‘Should Scotland be an independent country?’ (Referendum Bill, section 1(2)).

Electoral Commission

The Referendum Bill also formalises a more general oversight role for the Electoral Commission. Among a number of statutory duties the Commission is given the task of promoting public awareness and understanding in Scotland about the referendum, the referendum question, and voting in the referendum (Referendum Bill, section 21). This is likely to be a challenging role, particularly in explaining the referendum question. There is already a heated debate between the UK and Scottish Governments as to what ‘independence’ will mean for Scotland. It is hard to see how the Electoral Commission can attempt to produce an objective account of a number of highly technical and fiercely contested issues, concerning not only international relations but also defence, economic relations, the question of a currency union, the disentanglement of the welfare state, national debt etc., particularly when so many features of the post-referendum landscape would be contingent upon negotiations between the two governments in the event of a majority Yes vote. And indeed in evidence to the Committee in May John McCormick, the Electoral Commissioner for Scotland, said that the Commission would ‘not seek to explain to voters what independence means’ but would offer information ‘aimed at ensuring that all eligible electors are registered and know how to cast their vote.’

Referendum Period

The Referendum Bill sets a regulated period of 16 weeks before the referendum within which the statutory regime of campaign regulation will take effect, including for example, limits on campaign expenditure (Referendum Bill, Schedule 4, Part 3). Since the referendum will still be the best part of a year away by the time the Referendum Bill is passed, this leaves a lengthy period within which the two main referendum campaigns will not be subject to these detailed provisions. Another set of regulations introduce what is known as a ‘purdah’ period. This is common in UK elections. Under PPERA there is to be no promotional activity by government, local authorities or public bodies during the 28 day ‘relevant period’ prior to an election poll. This provision is largely replicated in the Referendum Bill (section 10 and Schedule 4, para 25) in relation to the Scottish Government and a wide range of other public bodies which must not engage in promotional activity in the four weeks prior to the referendum. The UK Government also committed to be bound by equivalent restrictions in the Edinburgh Agreement (for comment on this by Deputy First Minister Nicola Sturgeon see Scottish Parliament Referendum (Scotland) Bill Committee, 13 June 2013, Official Report, cols 554 and 560).

Funding and Spending Rules

Efforts are made within the Referendum Bill to ensure equality of arms between the two campaign groups. Each side in the campaign can apply to the Electoral Commission to be appointed as one of two ‘Designated Organisations’, and both the Yes Scotland and Better Together campaign groups have intimated their respective intention to do so. One notable feature of the Referendum Bill is that there is to be no public funding for any designated organisation. This is a conscious departure from PPERA which does offer public funding for referendums. The decision not to fund the 2014 referendum was a political one taken by the Scottish Government. It has not resulted in any significant disagreement, presumably because both campaigns expect to be amply funded by private donors.

The Edinburgh Agreement (paras 24-29) also covers funding and expenditure issues. Building on this, the Referendum Bill contains detailed provisions on a range of funding issues. A ‘Campaign Rules’ provision creates a regulatory regime through which funding, spending and reporting will be administered (section 10 and Schedule 4). This is generally in line with standard PPERA rules. A ‘Control of Donations’ provision (Schedule 4, Part 5) indicates what types of donations are allowed and what constitutes a ‘permissible donor’ (Schedule 4, para 1(2)). Under these provisions an application must be made for this status. There are also reporting requirements which mean that reports on donations received will require to be prepared every four  weeks during the referendum period (Schedule 4, para 41). These rules will all be overseen by the Electoral Commission.

Spending Limits

Within the Referendum Bill there are four categories of actor entitled to spend money during the campaign period: Designated Organisations (which can each spend up to £1,500,000) (Schedule 4, para 18(1)); political parties as ‘permitted participants’ (see below) (Schedule 4, para 18(1)); other ‘permitted participants’ who may spend up to £150,000 (Schedule 4, para 18(1)); and any other participants spending less than £10,000, which means they do not require to register as permitted participants.

Political parties as ‘permitted participants’  have a spending limit of either £3,000,000 multiplied by their percentage share of the vote in the Scottish Parliament election of 2011, or £150,000 (whichever is greater). By this formula the spending limits for political parties represented in the Scottish Parliament is as follows:

Scottish National Party: £1,344,000
Scottish Labour Party: £834,000
Scottish Conservative & Unionist Party: £396,000
Scottish Liberal Democrats: £201,000
Scottish Green Party: £150,000

The Referendum Bill also defines ‘campaign expenses’. These include campaign broadcasts, advertising, material addressed to voters, market research or canvassing, press conferences or media relations, transport, rallies, public meetings or other events. This also extends to notional expenses such as use of/sum of property, services or facilities etc. ( Schedule 4, paras 9 &10). There are also detailed rules on reporting of expenditure (Referendum Bill, Schedule 4, paras. 20-24. The Electoral Commission has a power to issue guidance on the different kinds of expenses that qualify as campaign expenses: Schedule 4, para 10).

It seems that these rules will lead to a generally level playing field in terms of expenditure within the Regulatory Period. For example, the total spending limit for the two pro-independence parties (SNP and Greens) is almost equal to that for the three unionist parties – Labour, Conservative and Liberal Democrat. But given that these spending limits only apply in the 16 weeks before the referendum, this does leave the possibility of spending differentials between the two campaigns before this period begins. It should be observed, however, that these rules reflect the spending limits recommended by the independent Electoral Commission.

Finally, the Referendum Bill provides for civil sanctions (Schedule 6) and criminal offences (Schedule 7) in relation to various categories of electoral malpractice; and the Electoral Commission is given an important role in enforcing the former.

The Referendum Bill is approaching the end of its Stage 1 process and still has some way to go in its passage through the Scottish Parliament. But it is an instrument which, in building upon the Edinburgh Agreement principles, should set the conditions for a fair, lawful and democratic referendum. A significant task for the Electoral Commission, and for academic and other observers over the next year, will be to monitor how well the legislation in the Referendum Bill and Franchise Act is implemented and how responsibly all of those engaged in referendum campaigning behave. Compliance with the letter and the spirit of the legislation will be essential if the voting public is to have the best chance to participate in the referendum in an informed way and if the process as a whole is to live up to the aspirations of the Edinburgh Agreement.

Stephen Tierney is Professor of Constitutional Theory and Director of the Edinburgh Centre for Constitutional Law, University of Edinburgh. The author also acts as Constitutional Adviser to the Scottish Parliament Referendum Bill Committee. This paper is written in a personal capacity.

Suggested citation: S.Tierney, ‘Towards a Fair and Democratic Process? Regulating the Referendum on Scottish Independence.’  (27th August 2013) (available at http://ukconstitutionallaw.org).

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Jeff King: Miranda’s Rights: A Guide for the Perplexed Citizen

UCL Profile PhotoDavid Miranda, the partner of the Guardian journalist Glenn Greenwald, was detained at London Heathrow airport on 18 August 2013 under Schedule 7 of the Terrorism Act 2000.  He was in transit between Berlin and Rio de Janeiro, carrying what appears to have been leaked classified material used for journalistic purposes.  He was questioned without a lawyer, searched in person and his possessions (computer, phone, video games, other items), and his possessions were retained for a period that may not exceed seven days.

His detention raises an important point for the public about what rights a citizen or foreign national would have in such a situation, and whether and how such rights might be enforced in the courts.   To answer that general, to some extent abstract question, I have made some factual assumptions that would cast the government’s actions in Miranda’s case in a dark light. The relevant question for many is about the legality and constitutionality of taking predatory action against someone assisting a journalist to publish leaked information about surveillance that is highly embarrassing for the government. The following discussion provides a set of answers to basic questions the concerned citizen might ask, and while it can at times get technical and lengthy, it is meant especially for the lay reader or junior lawyer who wants more nuance than what is available in the mainstream press.

1.     Can the Government really do that?

If by ‘that’ we mean just crack down on a reporter or his partner/assistant, using powers that seem manifestly conferred for other uses, the answer is ‘no, it can’t.’ Miranda’s rights were interfered with under a number of provisions of Schedule 7, but the main power of detention, questioning, searching, and retention of belongings, all revolve around the authorization granted in paragraph 2(1), which provides as follows: ‘An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b).’  And section 40(1)(b) deems as a ‘terrorist’ any person who ‘is or has been concerned in the commission, preparation or instigation of acts of terrorism.’  So it was only lawful under Schedule 7 to question Miranda if it was for the purpose of determining whether he was concerned in the commission, preparation or instigation of acts of terrorism.

The common law of judicial review requires that a statutory power only be used to further the purposes for which it was conferred, and not for any other purpose: Padfield v Minister of Agriculture [1968] AC 997 (HL). This substantive law thus forbids any use of the Terrorism Act 2000 to stop and detain Miranda for either the purposes of harassment, or to harvest/destroy any leaked classified information he had in his possession.

The European Convention on Human Rights also protects his rights. The rights to liberty (art.5), privacy (art.8), and freedom of conscience (art.10), had been interfered with.  If it can be shown that the Terrorism Act was not appropriately used, all these rights would also have been violated because in no case would the interference with them have been ‘in accordance with law,’ the very lowest bar any argument must be clear to justify an infringement of our rights.

So Miranda could obtain a declaration from the court that the conduct was not authorized under the statute and thus illegal, as well as a violation of Convention rights, either by way of an application for judicial review or, better still, as part of a civil action for the tort of false imprisonment. So says the constitution in ideal times.

2.     But aren’t the powers in Schedule 7 of the Terrorism Act 2000 extremely broad, effectively preventing any real judicial control?

Yes and no. The powers are extremely broad.  As is widely reported in the press, the exceptional aspect of the Schedule 7 powers is that officials do not need to have any reasonable grounds for detention, searches, and retention of belongings (para.2(4)).  But where the facts show that the power is being used to detain someone for a reason other than determining whether they are or are aiding terrorists, the courts have the power to step in. In the case of R (CC) v Commissioner of Police of the Metropolis [2011] EWHC 3316 (Admin), Justice Collins of the High Court did just that.  The case involved someone who was detained, but under circumstances where the security services and police had already come to the view that he was a terrorist. The real reason they used the Schedule 7 powers or interrogation was not to answer the question of whether he was a terrorist, but rather as a way of obtaining additional information from him (namely, that which would be untainted by torture, as previous information extracted by others in Somalia had been). The Court quashed this misuse of the power.  Of course, Miranda would make for a considerably more sympathetic claimant that CC did, and the case confirms that judicial review will lie where the facts clearly show a misuse of power.

But what exactly were the stated reasons for Miranda’s detention?  I have seen no official printed declaration, but Theresa May, the Home Secretary, said in an interview with the BBC on the evening of Tuesday, 20 August 2013, that she thought ‘that if the police believe that somebody has in their possession, highly sensitive, stolen information which could help terrorists, which could lead to a loss of lives, then it is right that the police act, and that’s what the law enables them to do.’   This statement gives crucial information relevant to the legality of the action. Possessing stolen classified information certainly does not make one ‘concerned with’ commissioning or aiding terrorism, or else some of history’s finest journalists become terrorists.  And the fact that information ‘could help terrorists’ cannot on its own be relevant, for plenty of information and even cherished laws and liberties meet that standard.

It is crucial that the powers in Schedule 7, to be regarded by the courts as ‘lawful,’[1] must be read in conjunction with the Code of Practice issued under paragraph 6(1) of Schedule 14 of the Terrorism Act 2000.   That Code affirms repeatedly that the powers must only be used for the purposes of determining whether someone is a terrorist or is helping one.  It also tells officers when and how to use Schedule 7 powers. It insists, on p.8, that any detentions and interrogation ‘should be based on informed considerations such as’ the following:

  • ‘Known and suspected sources of terrorism;
  • Individuals or groups whose current or past involvement in acts or threats of terrorism is known or suspected and supporters or sponsors of such activity who are known or suspected;
  • Any information on the origins and/or location of terrorist groups;
  • Possible current, emerging and future terrorist activity;
  • The means of travel (and documentation) that a group or individuals involved in terrorist activity could use;
  • Emerging local trends or patterns of travel through specific ports or in the wider vicinity that may be linked to terrorist activity.’

It is hard to see how Miranda’s type of case would ring alarm bells under any of these factors.   The real issue for the authorities, under our present assumptions, is not so much his link to terrorism, but rather his unauthorized possession and dissemination of classified and sensitive information. Even if that information poses a strategic threat vis-à-vis foreign nations, it would not trigger the application of Schedule 7.

3.     In any court hearing involving Miranda, could the government use  ‘secret evidence’ against him, preventing him from seeing and challenging such evidence?

Yes, it could (though might not), provided it had some type of confidential evidence supporting its decision.  If it did, the safety valves in the Justice and Security Act 2013 that aim to control abuse of this power would provide only weak protection. However, if the pretext for Miranda’s detention is as we are assuming, his may be the egregious case in which they work.

Secret evidence’ is evidence introduced in Closed Material Proceedings (CMP), in which a party is excluded from proceedings while adverse evidence against him/her is heard by the court.  In such cases, a special advocate (security cleared lawyer) is appointed by the government to represent the excluded party, but even the special advocates have protested that the procedure is ‘fundamentally unfair’ because they cannot consult with the party after seeing the closed material.[2]

Section 6 of the Justice and Security Act 2013 now provides the power that could be used in Miranda’s case. The Secretary of State (Theresa May) would apply to the court for a declaration that CMP could be used. The court ‘may’ grant the declaration if satisfied of two conditions: (a) that if the judge allowed a regular civil trial or hearing, the secretary of state would be required to disclose ‘sensitive material’ (i.e. material that ‘would be damaging to national security’ (s.6(11)); and (b) it would be in the interests of ‘fair and effective administration of justice’ to allow closed proceedings.  The first of these conditions would likely be very easily met, especially in a case like Miranda’s which revolves around national security.  The second condition is one of the few potentially effective safety valves against the exercise of the power.   If the judge concludes that it is not ‘fair and effective’ to use the procedure, the secret evidence could not be used in proceedings against Miranda, and in any litigated case there would be considerable argument on this point.  Yet there would need to be convincing evidence already in the public domain that the government is seeking to avoid stating its real reason for detention. And the judge must be confident that there is not some other good reason for detention contained in the closed evidence.

If the judge decided to allow the CMP to go ahead (i.e. the first safety valve did not assist Miranda), then the second safety valve would come into play: a special advocate would be appointed under s.9 of the Justice and Security Act 2013.  The special advocate could see all the closed evidence and probe its veracity. If it is as flimsy as it appears to be, it may be one of the few cases where the special advocate could effectively fulfill its stated function.  Special advocates are, to be fair, typically independent barristers of the very highest integrity and quality.  But the special advocate would be unable to communicate with Miranda after seeing the closed evidence.  So if the government presents a remotely coherent story about any whiff of a link between Miranda and terrorist activities, there will be little even a brilliant special advocate can do to rebut the claims.

4.     Apart from Miranda’s case, aren’t the powers in Schedule 7 too broad to be compatible with our right to privacy and liberty under the European Convention on Human Rights?

Miranda has friends as well as enemies in high places.  But what about the average Malik, detained and shaken down at Heathrow on his way home from the Hajj?  Just that person has taken a case challenging the Convention-compatibility of Schedule 7, and the European Court of Human Rights (ECtHR) has found the claim admissible:  Malik v The United Kingdom (Application No. 32968/11) (28 May 2013).  Malik argued that the broad Schedule 7 powers violated his rights to liberty under article 5(1) and to privacy under article 8(1) because Schedule 7 failed to require that the examining officer act on ‘reasonable suspicion’ that the detained person was concerned in terrorism.[3]   The case has good potential for success, because the earlier ECtHR case of Gillan & Quinton v UK (Application No. 4158/05) (28 June 2010) rejected a highly similar stop-and-search power contained in what was originally section 44 of the Terrorism Act 2000.[4]   The reasoning in Gillan confirms that both the liberty and privacy interests are engaged in Malik and Miranda’s situations.  The crucial finding in the Gillan case was that the stop and search powers were not ‘in accordance with the law’ (as required under article 8(2)) because ‘in the absence of any obligation on the part of the officer to show a reasonable suspicion, it is likely to be difficult if not impossible to prove that the power was improperly exercised’ (para.86).

The reasoning in Gillan applies quite plainly to the Schedule 7 powers as well, and thus Malik and Miranda’s cases. However, there are two distinguishing factors about Schedule 7 which complicate any straightforward application.  First, the Court in Gillan was ‘struck’ by the fact that none of the thousands of stop-and-searches under s.44 had led to a terrorism-related arrest.  The powers under Schedule 7 have, by contrast, led to 24 terrorism-related arrests.  Whether that tips the scales of proportionality is another story.  There is no significant theoretical difference between no arrests and extremely few arrests.  And we would also need to examine other data such as charges laid and successful prosecutions before coming to any conclusion on the matter. Second, however, the Government in Gillan argued unsuccessfully that judicial review or an action for damages could have provided a remedy for any abuse of power under s.44. The Court rejected the claim, finding it highly unlikely that any such claim would succeed without any ‘reasonable suspicion’ qualification (para.84).  Yet in the case of Schedule 7, there in fact has been one successful judicial review claim (again, whether that is enough is another story), and a willingness to find damages under the common law for Miranda’s case might, ironically, save this capacious power from Strasbourg’s gavel.

So the wise government lawyers, in other words, might strategically lose the battle with Miranda under the common law in order to win the Schedule 7 war with Malik under the Convention. Doing so would be politically tricky, however, because the government has admitted that No10 Downing Street knew of the detention. A flagrant and knowing misuse of executive power, which is what the court must find under the common law, would politically look no finer than an adverse judgment from a foreign court.  Indeed, adverse judgments from Strasbourg are helpful talking points for Tory politicians speaking to the tabloid press.

5.     Isn’t this a veiled assault on freedom of the press? Can the courts do anything about that?

The court could do something about this exercise of power in Miranda’s case in particular.  There is no doubt that the detention and interference with Miranda’s belongings interferes with his freedom of expression as understood by the ECtHR (see e.g. Foka v Turkey (Application No. 28940/95) (24 June 2008).  The fact that he was acting on behalf of a journalist, if not working directly for the newspaper, suggests that an interference with his rights in this respect is also an interference with media freedom. It is likely the court would or at least could so find.

But can the government interfere with press freedom in that way?  We should get one thing straight right away – the Strasbourg court has in a range of cases found that even the restraint of publication on grounds of national security is permissible and legitimate, and the House of Lords, for its part, found that article 10 gives no ‘public interest’ defence to whistleblowers who violate the Official Secrets Act 1989.[5]  But even so, any such interference with expression must be justified under article 10(2) as ‘in accordance with the law’ and ‘necessary in a democratic society.’ As we saw above, the state’s case apparently falls at that hurdle. And this is very relevant to the press freedom issue. Any exercise of the powers to restrain publication or to press charges would be carried out under the Official Secrets Act 1989 and the common law of confidence.  Those proceedings would carry the ordinary, and thus more robust, set of procedural and substantive protections for persons or media being investigated, tried or sued.   No secret evidence would be admissible in any criminal prosecution either, a fact the government would have to reckon with before pressing its claim aggressively.

When government officials met with the Guardian editor and more or less (ordered) him to destroy the GCHQ files or face prosecution, the action was bold and troubling (but also complicated given allegations that foreign governments might obtain the data).  Their legal rights to do so, however, are clear. Section 5 of the Official Secrets Act 1989 makes it a criminal offence for one to further disclose information that one knows was unlawfully disclosed by another under other (applicable) provisions of the Official Secrets Act.

Even so, the security forces went further than ‘cordial’ threats when they detained and searched Miranda. That would be, data-wise, and assuming it was unlawful, the equivalent of entering and searching the Guardian’s premises for information without lawful warrant and taking away what they found for 7 days.  Indeed, the actions taken at the Guardian were gentlemanly by comparison.

6.     What remedies could the court give?

Assuming Miranda could clear these hurdles and show in court that the Terrorism Act 2000 was misused, he would be entitled to a range of remedies.  He could obtain a declaration from the court that the authorities acted unlawfully, both under the common law and, under section 6 of the Human Rights Act 1998 in connection with the violations of the European Convention rights.  He could sue for damages, under the common law (a tort action for false imprisonment) and seek damages under section 8 of the Human Rights Act 1998 (though the former leads to higher damages awards).   No doubt the Guardian has sufficient interest to intervene in the case, and could perhaps even be joined as an interested party. It could argue that the issue of press freedom be put front and centre in the court’s judgment as well, and could conceivably obtain nominal damages if the invasion of liberty were regarded as an indirect assault on its own interests.

As this post goes to press, it has come to light that Miranda’s lawyers are also seeking an interlocutory injunction to restrain the government from harvesting or retaining any information from Miranda’s possessions.  The court must here be persuaded that there is a serious question to be tried; that there will be irreparable injury to a party if the injunction is not given; and that the balance of inconvenience between the parties favours granting the temporary injunction pending the full resolution of the matter in subsequent proceedings: American Cyanamid Co. v Ethicon Ltd. [1975] AC 396 (HL).  The law, here too, appears from a distance to be on Miranda’s side, though it is unclear whether any success in that application can unlearn what has already been learned by the security services so far.[6]

Conclusion

This discussion has sought to answer not the real question of whether Miranda will succeed in court, but the more abstract question about how a person in his situation would fair, assuming the worst, under the British legal system and constitution (which incorporates much of the European Convention on Human Rights).  Real cases are messier. Litigation risks, costs, and settlement offers bound up by confidentiality agreements always pervade the parties’ decisions (over and above the stress of it all).  The best the public can hope for is that the devil’s case scenario discussed here is not as accurate as it first appears to be.

Jeff King is a Senior Lecturer at the Faculty of Laws, University College London.

He thanks Tom Hickman, Gavin Phillipson, and Catherine Gilfedder for helpful feedback, and Alma Mozetic for excellent editorial assistance.


[1] An implication of Gillan v Commissioner of Police [2006] 2 AC 307, p.345ff (Lord Bingham).

[2] Miranda’s case is an interesting test case for the use of the CMP procedure before and after the introduction of the Justice and Security Act 2013.   In the Al Rawi and others v The Security Services [2011] UKSC 34 case, the Supreme Court held that where the CMP procedure was not provided for by statute (which is also Miranda’s case), then the courts had no power to improvise one as part of the ordinary judicial process.  Any such incursion, they held, interferes so strongly with our basic rights that only an Act of Parliament could authorize it.   So the Coalition Government authorized just that with the Justice and Security Act 2013, after a short consultation period that was subject to one of the more vigorous and lop-sided choruses of disapproval in recent memory.  See the consultation responses, and see in particular the response from the Bingham Centre on the Rule of Law and that of the Special Advocates, as well as Liberty and Reprieve).  See also the responses of the Joint Committee on Human Rights and House of Lords’ Constitution Committee, which are also quite notable for their criticism. Much of the criticism in these responses and reports was of a proposal to make CMP much more widely available than what was adopted in the bill.  However, the criticism in the JCHR report linked above takes account of the bill in its near final form.

[3] Malik did not take proceedings in the UK because damages were unavailable to him under the Human Rights Act 1998 when he challenged the convention-compatibility of Schedule 7. This was accepted by the Court as meeting the obligation to exhaust domestic remedies.

[4] This was subsequently replaced by the government with high-handed rhetoric in Part IV of the Protection of Freedoms Act 2012.

[5] Observer v UK (1992) 14 EHRR 153 (ECtHR); Sunday Times v UK (No.2) (1992) 14 EHRR 229; Brind v UK (1994) 18 EHRR CD76 ; R v Shayler [2002] UKHL 11.

[6] The Guardian reports that Miranda won his case, but the terms of the judgment (as yet unpublished) do appear to permit the continued use of the material by the authorities for reasons of national security. It is thus doubtful whether the ruling does much to tie their hands.

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Andrew Le Sueur, Sebastian Payne & Nick Barber: Next steps for the UK Constitutional Law Group

This is a consultation about the development of the UK Constitutional Law Group. Paid-up members received a similar email last month. Several helpful comments have been received and we would like now to open up consultation with people who read the group’s blog but who are not paid-up members. (For the avoidance of confusion: there are no plans to charge for access to the blog; but readers are, of course, encouraged to support the group’s work by joining — if you are not a 2013 member please consider joining here). We are especially keen to hear from people willing to take part in running the group and becoming members of the proposed executive committee.

The gist of the proposals

  • the group is placed on a more formal footing by adopting a set of simple rules and transforms itself into the UK Constitutional Law Association with an executive committee elected by members to run its affairs
  • there should be a drive to attract more members
  • the blog should continue to be developed as a central activity
  • alternative income streams are needed to sustain the group; the blog should take paid advertising by legal publishers
  • there should be an annual one-day or half-day conference (timed to coincide with an AGM) designed to explore issues and themes that have emerged on the blog during the preceding year.

These changes are evolutionary and have the support of the current co-convenors, the blog editors, and the group’s founders. If you would like to comment on these proposals, please do so either by sending an email to alesueur@essex.ac.uk (which will not be published) or leaving a “comment” at the end of blog post (some of which may be published).

History

The UKCLG was founded in 2003 by Tony Bradley (who became its first convenor), Stephen Sedley (who remains the group’s honorary president) and Mads Adeneas (the then director of BIICL). Dawn Oliver succeeded Tony Bradley as convenor in 2007; and she in turn in 2010 by me and Sebastian Payne (as co-convenors). The group has operated informally without a written constitution. A small steering group exists.

What the group does

The group has four main areas of activity. First, since November 2010, the blog edited by Nick Barber regularly publishes contributions from a large team of academic experts. Jeff King has recently joined as a co-editor. Over 1,800 people have signed-up to receive delivery of each blog post to their email inboxes; traffic is increasing, with more than 12,600 visitors in April 2013. The majority of readers are based in the UK but the blog has an international reach.

Second, the group organises meetings. Initially these were held at BIICL, then moved to UCL, and more recently the focus has been on working with other organisations (such as the Study of Parliament Group and the Italian-based Devolution Club).

Third, some larger scale conferences have been put on between 2006 and 2009. The topics included Terrorism and the policy cycle (2006), Reforming Britain’s war powers (2009, in conjunction with RUSI) and Surveillance and the information society (2010), organised by Sebastian Payne. Dawn Oliver organised a roundtable on Constitutional implications of the regulatory state (2008). Clifford Chance LLP kindly provided sponsorship to help fund some of these events.

Fourth: there is a link between the group and the International Association of Constitutional Law. Tony Bradley was a member of the IACL executive committee from 1999 to 2007 and the group was partly formed in order to become an affiliated institutional member of the IACL. Dawn Oliver (2007-2010) and I (2010 to date) have subsequently been elected to the IALC executive committee, ensuring British representation on this body. The IACL’s main event is a world congress, held every four years – Athens in 2007, Mexico in 2010, Oslo in 2014 – with smaller scale round-tables two or three times a year to coincide with executive committee meetings.

Proposals for evolution of the group

Adopting a constitution. For so long as the group was essentially a small group of academics, well known to each other, meeting in London for discussions from time to time, an informal association worked well. As the group’s activities grow and more members are sought we believe that there are benefits in adopting a set of simple rules and restyle the group as the “UK Constitutional Law Association”, with an executive committee elected by members to run its affairs. A draft set of rules can be downloaded here 2013.07.10 Draft Rules for UKCLA  and will, if there is sufficient support, be adopted at an AGM held later in the year. Enthusiastic people willing and able to help lead the association will be needed to offer themselves for election to the executive committee.

Membership drive. There is a need to attract more subscribing members and new people willing and able to be involved in the group’s activities. This growth is partly to put the group on a more sustainable financial footing but is equally important to ensure that the group remains a lively, relevant and respected body adding something to the British constitutional law scene. Under the draft rules, three categories of membership are proposed. The main kind is “ordinary membership”, which is intended to be similar to that of the Society of Legal Scholars, ensuring that the Association is a scholarly led by academics (broadly defined), with other people welcome to join as associate members.

Finances. So far in 2013, 70 people have paid a £15 annual subscriptions (mostly bought online). This brings in just sufficient income to meet the group’s running costs, which fall under the following heads:

  • the annual affiliation fee to the IACL is €750 (roughly £635)
  • travel and accommodation costs for a member attending IACL executive committee meetings are considerable: like previous representatives, Andrew Le Sueur has mostly funded these personally or through his research budget (thanks are especially due to his previous employer, Queen Mary, University of London) but he claimed the cost of an economy air ticket to attend a IACL meeting in Rio de Janeiro earlier this year.
  • there are various costs associated with keeping the blog online; as readership increases, it would be prudent to find a webmaster able to ensure security and to develop some more sophisticated features of the site (such as hosting audio and video recordings), which will involve some further expense
  • when meetings are held, modest refreshments are provided afterward.

Financial reserves built up from surpluses generated by conferences a few years ago act as a buffer but clearly it is prudent to seek growth in the number of members or alternative income streams, to ensure that longer-term future of the group. We propose that blog should take paid advertising by legal publishers to generate a new income stream; whenever possible, members will be offered discounts on selected publications.

The blog. Building on its considerable success, the blog should continue to be developed as a central activity for the group. The editorial team has recently been enlarged, with Jeff King of UCL joining Nick Barber as a co-editor. The blog has given the group a reach beyond London and (though posts and comments) enables participation in the group’s activities. In the run-up to the 2014 IACL Oslo world congress, the blog provides a way of informing people about the work of the IACL. There are a number of ideas for the creative development of the blog, while maintaining its high academic standards. There is no proposal to make the blog accessible to members only; it will continue to be free to read.

Events. In its early years, the group’s main activity was to hold evening seminars (first at BIICL then at UCL), which attracted a loyal, but sometimes quite small following. Over the years, a wide range of topics has been discussed, attracting audiences of between single figures and 50 plus. The evening meetings have taken place in London, which makes them inaccessible to some members and would-be members. As outlined above, Sebastian Payne organised several larger scale events. We propose a new type of event – an annual one-day or half-day conference (and AGM) built around themes and issues explored in the preceding year on the blog. Efforts will be made to attract sponsorship for this. Other ad hoc events, some in conjunction with other organisations, would continue to be held from time to time.

Please let us have your views.

 Andrew Le Sueur and Sebastian Payne are the co-convenors of the UK Constitutional Law Group. Andrew serves on the executive committee of the IACL. Nick Barber is the founding editor of the blog.

Suggested citation: A. Le Sueur, S. Payne and N. Barber, ‘Next steps for the UK Constitutional Law Group’ (21 August 2013) (available at http://ukconstitutionallaw.org).

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Greg Weeks: Proposed changes to Australia’s Migration Act

gregAustralia is in the midst of an election campaign and, as has been the norm over recent years, both major parties have taken an aggressive line on asylum seekers who enter Australia by boat.  Both parties have released new, unashamedly harsher policies.  They have also drawn distressed responses from those who advocate a more humane approach to dealing with the issue of those who undertake the arduous journey to reach Australia by boat in order to claim refugee status.  While smaller parties, such as the Greens, lament the major parties’ policies for their inhumanity, the same policies appear to be welcome to a large number of Australians, particularly in the marginal electorates of Western Sydney.

The policy of the governing Australian Labor Party (ALP) is new, but can nonetheless be seen as an extension of its recent policy of offshore assessment.  This policy was damaged by successive High Court judgments in regard to assessment of asylum seekers in the Australian territory of Christmas Island and in Malaysia, the latter provoking a furious response from then-Prime Minister Julia Gillard.  The new policy seeks to avoid the scrutiny of the High Court by making it clear that people who arrive in Australia by boat will not be settled in Australia, regardless of whether they are owed obligations as refugees.  Instead, they can expect to have their claims for asylum processed in Papua New Guinea and, if it is found that they are in fact refugees, can expect also to be resettled in PNG.  The government has controversially advertised the ALP’s new policy throughout the election campaign so far, supposedly for the information of potential asylum seekers.

The coalition of Liberal and National parties (LNP) has made a rather more radical set of proposals, although LNP policy is still largely similar to the policy of the ruling ALP.  However, last week the Leader of the Opposition, Tony Abbott, announced changes to the LNP policy on asylum seekers which have drawn immediate, heartfelt opposition.  The point over which they have raised the greatest amount of disquiet is the LNP’s stated intention to prevent asylum seekers from obtaining access to courts.  Indeed, the LNP has proposed that it will also abolish the Refugee Review Tribunal (RRT), which has existed since amendments to the Migration Act made in 1989 to provide merits review of decisions regarding refugee status made by the Minister for Immigration’s department.  Rather, the LNP policy proposes that asylum seekers’ claims will now be assessed “by a single caseworker”.  Seemingly, amending legislation will be introduced which states explicitly that the process of assessing refugee status is to be conducted entirely by the executive.  It seems that the LNP believes that such an approach would limit the scope of any claim for judicial review to claims that there had been a breach of procedural fairness.  The content of procedural fairness in a non-statutory context is unlikely to be great.

A number of commentators have stated categorically that if, as expected, the LNP wins the election on 7 September, the new government can expected to see its asylum seeker policy reduced to dust in short order by the High Court.  They may be right, although there are aspects of the LNP proposals which have the potential to confound such expectations.  Much has been made of the fact that the High Court, in a landmark 2003 decision of Plaintiff S157, rendered useless the Howard government’s immigration policy by holding that a privative clause could not be used to prevent a party from seeking relief from the High Court for jurisdictional error.  This does not automatically mean that the proposed LNP policy will suffer the same fate, particularly if it does not hinge on the application of a privative clause.

Other warnings are more likely to come to pass.  In particular, concerns that the High Court will be overwhelmed by asylum seekers whose applications have been rejected by the departmental decision-makers may be well founded.  Because the High Court has original jurisdiction to grant certain remedies where a jurisdictional error has been made by an officer of the Commonwealth, it follows that legislation cannot validly prevent people from seeking remedies on that basis.  However, the Federal Circuit Court and Federal Court of Australia are creatures of statute and it is within the competence of the legislature to prevent those courts from hearing matters seeking review of decisions made in relation to the refugee status of asylum seekers.  It is possible on this basis that the entire weight of hearing judicial review matters challenging refugee status decisions would fall on the seven members of the High Court.

Moreover, there is precedent for this concern.  The Howard government’s legislative attempts over the course of a decade to keep asylum seekers out of the court system succeeded only in creating a massive spike in judicial review applications from asylum seekers.  The government was not always unsuccessful in these matters, although there are several prominent examples of cases which the government won but felt like it had lost, such as Plaintiff S157.  After that case, limitations on the jurisdiction of the Federal Court continued to apply in a way that increased the workload of the High Court.

While not likely, a third possibility presents itself.  The High Court is a conservative body by international standards, as I have commented before.  However, it can be provoked into disobedience on occasions.  A salutary example is that, in Plaintiff S157, the High Court held that the legislature had not intended to prevent access to the High Court in the event of jurisdictional error.  A decision affected by jurisdictional error was not a “decision” to which the relevant privative clause applied.  Of course, the legislature ‘intended’ no such thing and the government of the day felt that it had a strong argument for its privative clause being read such that it prevented access to the High Court.

More recently, the High Court’s decision in the Malaysian Solution Case provoked such outrage from leading members of the government (and indeed from Heydon J in dissent) because the majority judges were prepared to demonstrate a level of judicial creativity that few outside the court had predicted.  There, asylum seekers were able to be sent legally to Malaysia to have their applications for refugee status processed only if the Minister had first made a declaration that Malaysia met four statutory criteria.  The first three hinged on whether Malaysia is a country which “provides” certain protections and procedures.  The majority of the High Court was prepared to read these legislative criteria as amounting to a requirement that certain jurisdictional facts exist.  In other words, it held that the Minister could not validly make the declaration if there was no domestic Malaysian law on point, which the Minister conceded there was not.  This issue has now been dealt with by more explicit legislative drafting but it points to the fact that the High Court is prepared, on occasion, to entertain strained approaches to statutory interpretation where important issues are at stake.

Another possibility is that the High Court will start to apply a more probing level of review to matters concerning asylum seekers, if their cases have not (as now) been through two stages of consideration on the merits and either two or three judicial review hearings before reaching the High Court.  It may be more explicit about what it expects of decision makers in terms of procedural fairness, or require a certain thoroughness in the decision making process that has in the past been left largely to the discretion of the decision maker.

However, there is one thing which the High Court can never do and that is to grant a substantive remedy based upon a review the merits of a matter.  The Court’s remedies are procedural only.  For this reason, if for no other, independent scrutiny of the decision making regarding asylum seekers will inevitably be poorer if the RRT is abolished.

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

 Suggested citation: G. Weeks, ‘Proposed changes to Australia’s Migration Act’   UK Const. L. Blog (19th August 2013) (available at http://ukconstitutionallaw.org)

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Barry Winetrobe: The Bagehot Memorial Fund – commemorating Walter Bagehot

Dear fellow readers of the UKCLG Blog,

My name is Barry K Winetrobe, and I chair the steering committee of the Bagehot Memorial Fund, which is based in Langport, Somerset, where my wife, Janet Seaton, and I now live.

Birthplace image for UKCLG blogTo give you some background: the aim of the Fund is to commemorate our small town’s most famous citizen, Walter Bagehot, the great Victorian writer and editor.  Sadly, Bagehot is little-known or marked in his own home town, and we are determined to rectify this.   Both Janet & I come from a parliamentary background, having worked at Westminster and Holyrood, and I have taught and written on public law and politics at a number of UK universities over the past 2 decades.  So we were both very familiar with Bagehot and his work, especially on the constitution and government, and were delighted to move to his home town almost 6 years ago.

The Fund was established in 2011 under the auspices of the Langport Town Trust, a registered charity, and is run by a steering committee of interested local people.  Our Fund has already commissioned and unveiled a splendid interpretation board in the newly renamed Walter Bagehot Town Garden in Langport.  We have arranged the repair and regular maintenance of the neglected Bagehot gravesite in the local churchyard, and we organise the annual Bagehot Memorial Debate during the Langport Festival (this year’s motion was ‘Scotland & the Union’, featuring the politics professor and former senior Labour MP, Tony Wright, and Chic Brodie, an SNP MSP for South Scotland, as well as two students from our local Academy’s Sixth Form Debating Society).

BIB image for UKCLG blogWe are also gathering a Bagehot Collection – initially from generous donations from the estate of Lord St John of Fawsley (who, as Norman St John-Stevas, the senior Conservative MP and Cabinet Minister, was Bagehot’s modern chronicler and biographer) and from The Economist (which Bagehot edited for 16 years) – and plan to make this available for public display and use in the town and on-line to the wider world.  We run Twitter (@bagehotlangport) and Facebook accounts, and are constantly expanding our website on ‘all things Bagehot’: www.bagehotlangport.co.uk.

We have an impressive list of founding supporters including University College London (where he was an outstanding student), the political historian Prof Lord (Peter) Hennessy, Sir Antony Jay (co-writer of Yes Minister and Yes Prime Minister), the writer and journalist Ruth Dudley Edwards and Sir Graham Watson MEP, and have had invaluable support from the likes of Robert Peston, the BBC’s Business Editor, and the Woodrow Wilson Presidential Library (Wilson was a huge admirer of Bagehot and made a pilgrimage to his grave in 1896).

We have launched a public appeal to continue and expand our work, details of which are in the documents which can be read on the Fund’s website www.bagehotlangport.co.uk, in the ‘Public Appeal’ and ‘How to Donate’ sections.  Please support our efforts to commemorate one of our most important and influential constitutional writers, by making a donation to the Fund, and by spreading the word of the Bagehot Memorial Fund among your colleagues, friends and family, and through your organisations.

The Fund can be contacted via its Administrator, Robin Williams, at Clerk@langport-tc.gov.uk, or 01458 259700, or directly to me at barry@seatrobe.co.uk or bagehot@seatrobe.co.uk.  Robin and I are happy to provide any further information or answer any queries about the Bagehot Memorial Fund.

Please help us preserve the memory of Walter Bagehot.

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Andrew Le Sueur: IACL newsletter and 2014 Oslo world congress

The latest issue of the International Association of Constitutional Law (IACL) newsletter has just been published, including information about the 2014 World Congress in Oslo. UK Constitutional Law Group members and blog readers are encouraged to submit papers to the wide array of workshop sessions.

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