Tom Hickman on the DRIP Bill: Plugging Gaps in Surveillance Laws or Authorising the Unlawful?

tomThe unveiling last Thursday of a a draft bill on surveillance powers that is to be rushed through Parliament brought to mind the story of the Dutch boy who finds a hole in a dyke on his way to school and puts his finger in it to plug the leak until help arrives to shore it up. The legislation is said to be necessary to plug what the Government regards as holes in the regime of surveillance and investigatory powers pending a full review. The fact that the bill is titled the Data Retention and Investigatory Powers Bill – the “DRIP” bill – may mean I am not the first person to draw the analogy. But the analogy may not be entirely apt. An examination of the DRIP Bill reveals that it is not addressing little holes in the regime but in fact profoundly important and substantial issues.

The DRIP Bill will be law by the end of the week. Its unveiling in draft form on Thursday came out of the blue. The use of emergency parliamentary procedure means that there is no time for any significant consultation or lobbying and parliamentary scrutiny will be minimal.

The use of emergency procedure to enact laws that are controversial and have significant impacts on individual rights is becoming a regrettably frequent occurrence. Just over a year ago, when the Government was fast-tracking through Parliament legislation overruling a court judgment that found that thousands of benefits sanctions had been unlawfully imposed, the House of Lords Constitution Committee lamented that it was the latest in “an undesirably long line of recent fast-track legislation” and registered its concerns with the House (a strong thing for that Committee to do – see 12th Report Session 2012-13 HL 155 §6).

As on the last occasion, the Government had already secured behind-closed doors support from the Labour Party to ensure the Bill would pass without hitch or significant scrutiny. A few key Labour members have been briefed on Privy Council terms about the DRIP Bill and the reasons for it. This means that they can’t tell anyone what they were told. The consequence is that the full reasons for the measure will not be made known to Parliament or the public. The Parliamentary process will be little more than a rubber-stamping exercise.

In a statement made to Parliament on Thursday the Home Secretary identified two issue that the Bill is intended to address. She said,

we now face two significant and urgent problems relating to both communications data and interception: first, the recent judgment by the European Court of Justice, which calls into question the legal basis upon which we require communication service providers in the UK to retain communications data; and secondly, the increasingly pressing need to put beyond doubt the application of our laws on interception, so that communication service providers have to comply with their legal obligations irrespective of where they are based. (Hansard, 10/07/14 Col 456)

In other words, two holes have appeared or been identified in UK’s surveillance and investigation capabilities and the DRIP Bill is intended to plug them.

The first relates to retention by private companies of communications data (the hole is: they don’t have to retain it), the second relates to the desire to require foreign companies to co-operate with interception warrants (the hole is: foreign companies say they don’t have to comply).

Before turning to examine the contents of the Bill let me make three initial points.

First, it is said that the content of the Bill is not intended to expand the UK’s surveillance capabilities at least as they have been understood and operated by government agencies. It is intended to ensure that there is a legal basis for what is already going on. Of course, this gives rise to serious questions as to whether everything that law enforcement and intelligence agencies have been doing has had a lawful basis. One view of the DRIP Bill is that it seeking to provide a lawful basis for the unlawful exercise of power by UK agencies.

Secondly, the legislation is presented as a temporary gap-plugging measure. It has a sunset clause of 31 December 2016. The intention is that a review of surveillance capabilities and powers will be conducted and published before the 2015 General election and Parliament will legislate on the issue in the next Parliament. David Anderson QC the Independent Reviewer of Terrorism Legislation has been announced as the person who will conduct the review. Such a review is overdue and David Anderson’s appointment is welcome. But it does mean that the big issue about the adequacy of legal safeguards under the current regime is being shelved for the time being. It must be hoped that this will result in a more thorough and wide-ranging review and that will look not only at interception and data retention but also obtaining intercept material from foreign liaison partners (which is not currently within the scope of the review as it is not addressed by the Regulation of Investigatory Powers Act 2000 (“RIPA”)).

Thirdly, in an attempt to off-set the inevitable concerns raised by stop-gap legislation in such a sensitive area, the Government announced several initiatives to increase scrutiny and oversight of surveillance powers. These include (i) publication of an “annual transparency report”; (ii) the appointment of a former diplomat to review intelligence sharing with foreign governments, (iii) the establishment of a “privacy and civil liberties board” to “build on the role of the independent reviewer” of terrorism legislation. These proposals currently remain sketchy and the degree to which they will provide meaningful transparency and oversight cannot yet be judged.

Let us then turn to the content of the DRIP Bill.

The first hole: retention of Communications Data

The first hole identified by the Home Secretary arises from the judgment of the CJEU on 8 April 2014 in Digital Rights Ireland Ltd v Minister for Communications (Joined Cases C 293/12 and C 594/12) in which the court ruled that the Data Retention Directive was invalid. That ruling held the consequence (although the Government has not openly accepted this) that the implementing regulations– the The Data Retention (EC Directive Regulations) 2009 SI 859/2009- are ultra vires as the absence of an obligation under the Directive deprives them of their legal basis in domestic law.

The Directive and the Regulations were the means by which the Government required telephone and internet companies to retain “communications data” on individuals for up to a year. The information could then be obtained and used in criminal investigations and for intelligence purposes.

Communications data is information about when, where and by whom communications have been made. It is well known that communications data, although it does not include the content or terms of the actual communications, is extremely revealing about a persons’ activities and usually much more interesting to law enforcement and intelligence agencies than the content of communications.

Communications data includes information about internet services used, the user ID and time and duration of use. In the case of mobile telephones it includes when they were used, the name and address of persons who used them and the duration and destination of the communication. It also includes the location where a mobile telephone was used and even information identifying the movement, direction of travel and location from time to time of mobile devices. It was stressed in Parliament that this type of information has been instrumental in obtaining criminal convictions in cases such as that of Ian Huntley, by placing his victims Holly Wells and Jessica Chapman close to his house, even though their mobile phone had been switched off.

But this undoubted utility also shows that this type of data is enormously revealing about a person’s movements, activities, interests and associations. It in principle enables a degree of surveillance of a person of interest that totalitarian regimes infamous for the extent and depth of their surveillance could only have dreamt of. It therefore requires the strongest possible safeguards.

The invalidity of the Data Retention Directive does not affect the powers of the Government to require companies to provide it with communications data as this power is set out in Chapter II of Part I of RIPA. But the Government says that it is concerned that there is now no requirement that companies must continue to retain such data and they will begin to destroy it unless a new law is put in place.

Clause 1 of the DRIP Bill therefore provides that the Secretary of State may by notice require a communications service provider to retain data for purposes connected with protecting national security, public health, economic well being of the country and other purposes. A notice cannot require data to be retained for more than one year.

In practice it is likely that such notices would operate in a blanket fashion requiring telecommunications and internet companies to retain all data they possess or all data within certain broad categories.

There is no doubt that the legislation in this respect addresses a genuine problem that requires primary legislation to fix. It is much less clear that it is appropriate for government to be addressing the issue by fast-track legislation which avoids Parliamentary scrutiny. It was not lost on the opposition that the Government has had several months to introduce legislation to Parliament. Yvette Cooper the Shadow Home Secretary stated:

there will be serious concern, in Parliament and throughout the country, about the lateness of this legislative proposal, and about the short time that we have in which to consider something so important (Hansard, Col. 459)

Quite. Connected to this lack of opportunity for Parliamentary scrutiny is the fact that the legislation does not seek to remedy the serious problems with the regime of data retention which led the CJEU to find that it breached basic human rights.

The court said for example that the Data Retention Directive failed to restrict data retention to data pertaining to a particular time period, area or group of persons likely to be involved in serious crime and it did not specify any objective criterion by which to determine the limits of the access of the competent national authorities to the data and their subsequent use for the purposes of fighting crime. Furthermore in paragraph 62 it held:

Above all, the access by the competent national authorities to the data retained is not made dependent on a prior review carried out by a court or by an independent administrative body whose decision seeks to limit access to the data and their use to what is strictly necessary for the purpose of attaining the objective pursued and which intervenes following a reasoned request of those authorities submitted within the framework of procedures of prevention, detection or criminal prosecutions.

It concluded that there was a violation of the right of respect for private life and the right to protection of personal data as protected by Articles 7 and 8 of the Charter of Fundamental Rights of the EU.

The DRIP Bill does not attempt to meet the requirements articulated by the CJEU. (nor do the draft regulations, now available, which will be made under the Act when passed). The Government has suggested that the protections under domestic law, for example as provided by the Data Protection Act 1998, provide adequate safeguards. But apart from the fact that the Data Protection Act itself implements EU law and such data protection rules were no answer in Digital Rights Ireland, the new powers essentially derogate from data protection laws. There is therefore no reason to think that the Charter of Fundamental Rights of the EU would not be just as much violated by the DRIP Bill after it becomes law as by the Data Retention Directive. Even if the new legislation falls outside the scope of EU law (which is doubtful as data protection is generally speaking within the scope of EU law: e.g. RFU v Viagogo Ltd [2012] 1 WLR 3333) Article 8 of the European Convention on Human Rights imposes analogous requirements to those under the Charter of Fundamental Rights of the EU.

It is remarkable that the Government has not attempted to address the issues raised by the CJEU in Digital Rights Ireland and is introducing a law which appears straightforwardly incompatible with the right to privacy and contrary to a court judgment which is binding on the UK Parliament.

The second hole: interception of communications in other countries

The second hole that DRIP Bill is seeking to plug is entirely unconnected with the ruling of the CJEU and with the Data Protection Directive.

Under Chapter I of Part I of RIPA government agencies can obtain and serve interception warrants allowing them to intercept communications between private individuals. The Home Secretary informed Parliament that technological changes have meant that increasingly internet and telephone companies which provide services accessible to persons in the UK are based outside the UK and she referred to “growing uncertainty among communication service providers about our interception powers” and that service providers “based overseas need legal clarity about what we can access”.

Implicit in these statements is the fact that government agencies have been requiring companies based overseas to intercept communications or facilitate the interception of communications on behalf of UK government agencies. It seems that these foreign companies have begun to doubt that the UK government has any power to do this.

These doubts are understandable. It is a basic principle that legislation must expressly provide for extraterritorial effect if such effect is intended, more especially where the effect is to establish criminal offences on the part of persons who reside abroad, and RIPA includes no such express provision. On the contrary, various provisions of RIPA make clear that it was designed to operate alongside mutual assistance agreements which provide a specific mechanism for government agencies to obtain information through foreign authorities under mutual assistance laws. It seems that government agencies have been going direct to foreign private companies, without the need for involvement or even knowledge of foreign governments.

Clause 4 of the DRIP Bill makes express provision for service of interception warrants on companies abroad imposing on them an obligation, backed by criminal sanctions, to secure the interception of communications.

The DRIP Bill also provides that in determining whether a company or person has a defence under RIPA of having taken all steps which were “reasonably practicable” to take to facilitate the interception, regard is to be had to whether what they were being required to do by the UK agency was unlawful under the law of the foreign state (Clause 4(4)). However it falls short of stating that a person or company based overseas can refuse to cooperate if cooperation with a UK agency will involve the company or its employees breaking the law of a foreign country.

The scope of these powers should not be underestimated. It is most likely that the power to require interception by a foreign company would arise in tandem with what is called an external communications warrant issued under section 8(5) of RIPA. This applies where the sender or one or more recipient of a communication is overseas. In such cases none of the protections relating to the need for warrants to be targeted at certain people or premises apply. The Government can obtain a warrant for blanket interception of external communications on the basis that this is necessary in the interests of national security. Conditions on the search of such material should be imposed under the warrant, but these are not set out in law and the scope and nature of any such protections are unknown.

The breadth of the power under section 8(5) has been highlighted by the Snowden disclosures which have suggested that GCHQ taps into transatlantic cables containing internet and other communications traffic under a warrant issued under section 8(5) and a program known as TEMPORA. In theory at least, if RIPA has extra territorial scope, UK government agencies could obtain internet and email traffic in other parts of the world, without even the limitation that it passes through the UK, simply by requiring a foreign company to intercept the communications on their behalf by the Secretary of State issuing a warrant to this effect. That would give the UK authorities enormously wide scope for interception of communications and for obtaining internet and telecommunications traffic around the world.

The foreign company will be put in a very difficult position if, as seems likely, providing the information would be contrary to civil or criminal laws of the foreign country. The DRIP Bill perhaps gives them more comfort than previously but   as I have noted it falls short of providing them with a defence that the company or it’s employees would be acting contrary to the laws of the foreign state. What is a foreign company to do? Foreign companies could not even reveal the fact that they had been served with a warrant without committing another offence: RIPA s.19.

The full consequences of the power have not been explained and given the fast-track procedure, they will not be the subject of parliamentary scrutiny before the bill becomes law. It will be apparent from my description of the provisions of the DRIP Bill relating to extra-territorial effect that they raise big issues, and complex issues, both of law and policy, including potentially issues of foreign policy.

These provisions have not been triggered by an event or judgment such as the decision in the Digital Rights Ireland case. No doubt the Government is very concerned about loss of information currently supplied to it by companies based in foreign countries but this is hardly persuasive if it had no right to be obtaining this information in the first place. It is highly unsatisfactory that these powers should be introduced without debate and without Parliament having a clear understanding of what laws it is enacting or a full appreciation of the consequences that the laws could have.

A third hole: creating, managing and storing messages online

It also appears that the Government fears that at present certain forms of internet use to which it wishes to have access–and probably has been gaining access–fall outside the ambit of the interception powers in Chapter I of Part I of RIPA.

This was not one of the problems identified by the Home Secretary in her statement to Parliament; but included within the DRIP Bill is a new definition of telecommunication service. Let me first of all explain the relevance of this definition. Under Chapter I of Part I of RIPA the Secretary of State may authorise the interception of communications which are being transmitted by a telecommunications system (or those which have been transmitted and are being stored by a telecommunications system). The definition of telecommunications system is therefore central to the scheme of the Act. It identifies the scope of the services that can be required to allow covert access to content data by government agencies under interception warrants.

The current definition of telecommunications service contained in section 2 of RIPA states that:

“telecommunications service” means any service that consists in the provision of access to, and of facilities for making use of, any telecommunication system (whether or not one provided by the person providing the service)

A telecommunications system is defined broadly as any system for facilitating communications electronically.

Clause 5 of the DRIP Bill provides that a telecommunications service shall henceforth include services, “facilitating the creation, management or storage of communications transmitted, or that may be transmitted” by means of a telecommunications system.

The purpose and effect of this change is not self-evident. It will include within the ambit of Chapter I of Part I of RIPA web-based services that enable the creation, management and storage of messages on the internet but where the actual transmission of the message is separate service. The Explanatory Notes say that it is intended to “ensure that internet-based services, such as webmail, are included in the definition” of telecommunications services. It seems rather doubtful however that ordinary webmail services are the intended objects of this change given that such services ordinarily consist in the provision of access to and facilitates for making use of a system for transmitting electronic mail. One rather suspects that something else is going on here and it is very troubling that such a potentially significant change is being made without properly explaining the purpose behind it.

Concluding thoughts

When RIPA was enacted internet use was still in its infancy. The technological changes which now enable government agencies to obtain enormous quantities of data on the personal lives of individuals were not anticipated.

The holes in the legal regime that are sought to be plugged by the DRIP Bill are just the latest to have appeared. This month the Investigatory Powers Tribunal will hear cases challenging (i) the scope of external communications warrants under section 8(4) of RIPA in respect of the TEMPORA program (explained above) and (ii) the absence of legal rules governing the receipt of material from foreign governments which has been obtained by those governments from their own interception programs (often without safeguards). A comparable case before the Strasbourg Court has been stayed pending these hearings.

It is clear that the RIPA regime is not fit for its current purpose. That now appears to be recognised on all sides. But it does not bode well for the review of the legislation that the Government is so apparently unwilling to facilitate informed debate and understanding, even at a general level, of very intrusive powers that it asks society in general, and Parliament in particular, to grant it.

 

         Tom Hickman is a Reader in public law at University College London and a barrister at Blackstone Chambers.

Suggested citation: T. Hickman,  ‘Plugging Gaps in Surveillance Laws or Authorising the Unlawful? Concerns about the DRIP Bill. ‘ U.K. Const. L. Blog (14th July 2014) (available at  http://ukconstitutionallaw.org/).

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Comment on India: Chintan Chandrachud: Dance Bars, Dialogue, and the Indian Supreme Court

ChintanAn interesting constitutional narrative, involving the government of the Indian state of Maharashtra and India’s Supreme Court, is developing. In 2005, the state legislature enacted primary legislation imposing a ban on dance performances in bars, except in certain establishments such as hotels rated three-stars and above. The rationale provided for the ban was that many such dance performances were obscene, promoted prostitution and the exploitation of women, undermined the dignity of the dancers and corrupted public morals. This statutory ban was challenged by affected parties before the Bombay High Court. The High Court struck down the statutory provisions on the basis that they violated the right to equality and the freedom to carry on any occupation, trade or business. The state government appealed to the Indian Supreme Court.

In a detailed judgment in July 2013 (reported as State of Maharashtra v Indian Hotel and Restaurants Association), the Indian Supreme Court affirmed the High Court’s decision. It pursued two lines of reasoning. First, it was impermissible for the state to distinguish between posh hotels and other establishments seeking licenses for dance performances. In the Court’s view, such a distinction was unsupported by empirical evidence and smacked of elitism. Second, the existing legislation had proven to be counter-productive, resulting in the unemployment of over 75,000 women, many of whom were forced by circumstances to engage in prostitution. The Indian Supreme Court noted that the constitutionally appropriate redress would be to take measures to ensure the safety, and improve the working conditions, of the dancers.

In spite of the Indian Supreme Court’s judgment being binding with immediate effect, the state government failed to implement it and almost instantly began exploring legal options to override the judgment. The Indian Supreme Court even issued contempt notices to the state government and relevant government departments seeking explanations for the disregard of its judgment. Last month, the state legislature passed a bill confirming the solution floated by the government – imposing a blanket ban on dance performances in all bars, whether in the dark alleyways of Mumbai or the exclusive hotels frequented by the city’s elite.

Some news reports seem to suggest that this was a devious, yet ingenious, response that exploited a loophole in the Indian Supreme Court’s judgment. However, the response fails to address the issues concerning the loss of livelihood and large-scale unemployment that were raised in the Court’s judgment. The state legislation is almost certain to be challenged, and it is unlikely that it will survive judicial review given that it fails to address a significant aspect of the Supreme Court’s decision. As it stands, the only way in which the judgment may be definitively overcome is through constitutional amendment by a two-thirds majority vote (either by directly amending the relevant constitutional provisions or by inserting the statute into the Constitution’s black hole, the Ninth Schedule, which is subjected only to limited review by courts). These options are highly unlikely, not least because the amendment would need to be enacted by the Union Parliament, which is controlled by a rival political alliance to the one with a majority in the Maharashtra state legislature.

From the perspective of comparative constitutional law scholarship, these developments are noteworthy in at least two respects. They indicate that the familiar notion of ‘dialogue’ between legislatures and courts is not distinctive to systems of weak-form judicial review. As Stephen Gardbaum argues, insofar as judgments can be overridden by ordinary legislation, there is almost no ‘non-dialogic judicial review’ under any constitutional system. Even if the legislative option that is currently on the table fails to survive judicial scrutiny, it is not inconceivable that we will see a second legislative sequel seeking to adjust the law in accordance with the Indian Supreme Court’s subsequent decision.

A further point to note is that we should be cautious in drawing hasty conclusions about the difference between a power to strike down legislation, which is expected to take immediate effect, and mechanisms like the declaration of incompatibility (under section 4 of the UK Human Rights Act), which have no automatic effect on legal rights. Just as British governments have sometimes strategically delayed compliance with declarations of incompatibility, the Maharashtra state government has managed to delay compliance with a judgment striking down primary legislation. The delay in this case may be substantial, since the structural failings and the heavy caseload of the Indian Supreme Court (see commentary by Tarunabh Khaitan and Nick Robinson) render it unlikely that the second exercise of judicial review will conclude swiftly.

The exercise of the power to strike down legislation is different from legislative repeal – like any other judicial order, it leans heavily upon executive compliance. The vulnerability of the strike-down power is particularly relevant where compliance with the judgment striking down legislation requires some explicitly positive governmental action – in this case, issuing performance licenses to establishments that were previously disqualified by virtue of the statutory provisions. The burden of inertia in cases like these is not dissimilar to that which exists after a declaration of incompatibility is made – the only difference being that after section 4 is invoked, the executive is not, at least as a matter of domestic obligation, required to comply with the judgment and subjected to sanctions for failing to do so (see R (Chester) v Secretary of State).

The second round of the constitutional narrative has only just begun, and it waits to be seen how many legislative and judicial sequels will follow.

 

Chintan Chandrachud is a PhD Candidate at Sidney Sussex College, University of Cambridge and India Correspondent for the UKCLA Blog. 

Suggested citation: C. Chandrachud, ‘Dance Bars, Dialogue, and the Indian Supreme Court’ UK Const. L. Blog (13th July 2014) (available at http://ukconstitutionallaw.org)

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Craig Prescott: Conference Report: Prisoner Voting and the Constitution 18th June 2014, Faculty of Laws, UCL

Vincent_Willem_van_Gogh_037As is well known to readers of this blog, the issue of prisoner voting has been a long running and high profile saga. The Justice Secretary, Chris Grayling has argued that it is a ‘totemic issue’ that shows how the ECtHR has ‘lost democratic acceptability’ (Guardian, 20 Nov 2013). However, this issue can only be understood against the background of concern about the Convention. David Cameron captured this feeling when discussing the Bill of Rights Commission by arguing that it is ‘about time we started making sure decisions are made in this Parliament rather than in the courts’ (BBC News, 16 Feb 2011). At its broadest level, prisoner voting shows how the core principles of the UK constitution, parliamentary sovereignty and the rule of law, can collide with each other.

Given the combination of law and politics that pervades this issue, it was natural for the UK Constitutional Law Association and the Study of Parliament Group to hold a joint event to explore the issue in depth, but thankfully, one step removed from the more frenzied political debate. We were fortunate to have four speakers who have been involved in different aspects of the debate. The discussion was started by Colin Murray, Senior Lecturer at the University of Newcastle, who was the Specialist Adviser to the Joint Committee on the Draft Voting Eligibility (Prisoners) Bill. He was followed by Dr. Michael Pinto-Duschinsky, Senior Consultant on constitutional affairs to Policy Exchange, who was a member of The Commission on a Bill of Rights. Jeremy Waldron, Chichele Professor of Social and Political Theory and Fellow, University of Oxford, All Souls College and University Professor, NYU School of Law, drew on his evidence he gave to the Joint Committee on the Draft Bill. The final speaker was Aileen Kavanagh, Associate Professor, University of Oxford and Tutorial Fellow at St Edmunds Hall College, has in her research, considered one key feature of Hirst, which is what weight the courts should place on the parliamentary discussion of human rights (or lack of) when assessing legislation for compatibility with human rights.

The aim of this event was to discuss the broader questions that surround this issue. For a discussion of the specific issue of whether prisoners should receive the right to vote, the reader should direct their attention to Alison Young’s previous post on this blog, Prisoner Voting – Human or Constitutional Right? And to the exhaustive report from Joint Committee on the Draft Voting Eligibility (Prisoners) Bill).

Colin Murray

Colin Murray argued that in Hirst, the ECtHR was rather careful in its judgment, and that they toned down the decision in the Scoppolajudgment that followed Hirst. The court held that the current law went too far, and hoped that the UK would respond to remove the ‘blanket ban’. In many ways, prisoner voting flags up the rigidity of the proportionality test. It is very difficult to argue that a complete ban was proportionate and necessary to achieve a legitimate aim. In this way, the proportionality test can yield some strange decisions on moral issues. The argument from the British Government in Hirst, that this was simply a political question, to be decided through the political process and not the courts, simply did not wash with the ECtHR.

Murray then discussed the legislative response, in particular the Joint Committee on the Draft Bill that reported on 18th December 2013. Their conclusion was that those sentenced to twelve months or less and those in the last six months of their sentence should get the vote. As Jeremy Waldron stated, this seems a reasonable compromise. However, we are still waiting for the government’s response to the report. It was a notable absentee in the Queen’s Speech for the last session of this Parliament, suggesting that this has been kicked into the long grass again, perhaps until after the general election in May 2015.

This issue tells us about constitutionalism in the UK, the role of principle of parliamentary sovereignty and its counterweight the rule of law. Prisoner voting tells us where that system is creaking. Fundamentally, the government’s argument is that the right to vote is different from the “right to free elections” as contained in Art 3 of Protocol 1 to the ECHR: it is a privilege granted by Parliament; but the European Court of Human Rights (‘ECtHR’) is clear that today, voting is a right, and you tamper with it at your peril. The Government thinks it has a strong hand, and can put the ECtHR in the corner, and clip the wings of the Convention, but the Government has taken a more difficult position than they believe. The Joint Committee on the Draft Voting Eligibility (Prisoners) Bill took the view that voting is a right, and should not be removed without a good reason. Murray argued that it is the defining legitimating factor that justifies parliamentary sovereignty. Tamper with this, even slightly, at your peril.

When the Reform Act of 1867 moved the jurisdiction of hearing election petitions (the legal process by which an election result can be challenged) from Parliament to the courts, a rash of extra cases was feared. Yet, this did not happen, and cases such as Watkins v Woolas are rare. Even then, the courts are castigated for this, just read Michael White’s comment on that case in the Guardian. Generally, courts don’t want to get involved in the political process and the line of judgments from Hirst to Scoppola in many ways follow this tradition and are timid judgments from the ECtHR. The courts, rather than undermining parliamentary sovereignty, are striving to protect democracy at all costs. A constant failure to heed warnings such as this could blow parliamentary sovereignty apart as the legitimating factor of parliamentary sovereignty is compromised.

Michael Pinto-Duschinsky

Michael Pinto-Duschinsky focused on the broader issues that prisoner voting raises and discussed the architecture of human rights protection. Drawing upon his experience on the Bill of Rights Commission, when he was ‘surrounded by lawyers’ he wanted to avoid a debate about the terms of reference and categorically stated that the issue is not prisoner voting itself.

The real issue is who makes the final decision, and the interesting aspect to this debate is that people with many things in common can have polar opposite views. Pinto-Duschinsky compared himself to Lord Lester of Herne Hill, who was one of the most vociferous campaigners for the Human Rights Act. They were both shaped by the holocaust, abhor torture, have campaigned for rights and were engaged in the battle for civil rights in the Deep South during the 1960’s. However, whereas Lord Lester sees the law as being the key to achieving human rights, Pinto-Duschinsky, while acknowledging the valuable role of courts, feels that they are no more infallible than legislatures. He argues that, in a democracy, court decisions must be capable in some circumstances of a democratic override by the legislature.

Pinto-Duschinsky highlighted how for every example in favour of the courts having the final say as opposed to the political process, an example can be found that goes the other way. The example given by Sir John Laws in his celebrated article, ‘Law and Democracy’ ([1995] PL 72) of the Athenians, under direct democracy, sentencing to death eight commanders for the loss of their crews in bad weather during the battle at Arginusae, can be can be contrasted against the verdict of the US Supreme Court in Dred Scott v Sandford 60 US 393 (1857) which was a significant contributing factor to the Civil War. The idea that judges equal good, whilst democracy equals bad, is far too simplistic. Both play a role, but issues such as prisoner voting should ultimately rest with the legislature. Courts, such as the ECtHR, which have little democratic legitimacy, should be careful when stepping into political territory such as this.

Jeremy Waldron

Jeremy Waldron agreed that prisoner voting has to be settled by Parliament, it’s not an issue like abortion which could be settled by a court: it must be settled legislatively. ‘Settled legislatively’ has a specific meaning. Although a vote was taken in the House of Commons with 234 to 22 votes in favour of retaining the ban (HC Deb, 11 Feb 2011, Vol 523, Col 492-586,), that cannot settle the issue legislatively. Settling a matter legislatively requires the due process that legislation represents, the rhythms of the legislative process, of the Second Reading, Committee, Third Reading and Report Stages in both the chambers of Parliament.

However, Parliament must acknowledge that they are talking about rights. In particular, voting has been described by some, including William Cobbett as the ‘right of rights’. When rights are at stake, Parliament should proceed more carefully. There is a need to avoid knee-jerk reactions. British justice is wonderful, but not on all matters. There is no harm in having issues flagged up by the courts, in a weak system of judicial review, where the courts do not have a final word. In this sense, judicial review is a canary in the mine, a warning system to alert parliaments to problems. .

It must be emphasised that this is a right that goes to the heart of democratic legitimacy. Parliamentary sovereignty derives its legitimacy from being elected by the citizenry, which in turn, requires that citizens possess the right to vote. Parliament depends on the rights of millions to vote for its authority and legitimacy. As John Hart Ely stated in Democracy and Distrust, there is a case for a strong form of judicial review when a discrete minority has been shut out of the representative system. Arguably, the issue of prisoner voting complies with those requirements. This does not mean that courts should consider it at the expense of Parliament, but that Parliament should consider the courts’ perspective. Majorities are not incapable of resolving flaws of a majoritarian system. However, they must avoid the knee-jerk sovereignty based attack that argues that the court is overstepping its jurisdiction at the expense of national parliaments. Such issues need to be addressed in a sober deliberative spirit, and constitutional arrangements that allow that to happen should be applauded.

Pinto-Dushinsky in response, pointed out that no such reflection took place when signing up to the ECHR in the first place, and no debate took place on Protocol 1, as under the Ponsonby Rule treaties are laid before Parliament without a debate being required (although one can be requested, now see Constitutional Reform and Governance Act 2010, ss. 20-25). There is a conflicting debate about who has the final word, as a matter of law at a domestic level it’s clear that the last word remains with Parliament. Under the Human Rights Act, s 4 (6), a declaration of incompatibility does not affect the validity of the Act of Parliament in question. But politically, politicians treat a declaration as a strike down power. As a matter of international law, the final say appears to rest with the ECtHR, and the UK could be liable for damages for being in breach of the ECHR. However as Murray pointed out, the ECtHR has no power to compel those damages being paid. As is common with the UK constitution, it seems that the most appropriate answer would be restraint from all sides.

Aileen Kavanagh

Aileen Kavanagh raised an important question: why out of all the issues with the ECtHR has the Government and Parliament made such a big issue out of prisoner voting? Why has this been the issue over which to fight?

Firstly, the issue clearly fits into the ongoing concerns about the ECHR that a large section of Conservatives hold, in particular its consequences for parliamentary sovereignty. But also, politicians have seized upon this issue, because at the very least, they can make the argument that a prisoner, who by definition has not ‘obeyed the rules’ should have no role in formulating those rules and so should not be allowed to vote. In this sense a politician can take, what they perceive to be, a ‘respectable stance’ against prisoner voting, in a way that a politician simply cannot over an issue such as torture. A politician arguing against prisoner voting can claim that they are protecting fundamental principles such as the sanctity of the vote. There is also a basic disagreement over whether voting is a right or privilege, which is available to those who fulfill certain conditions. More generally the issue of prisoner voting fits into the broader narrative on criminal justice of being ‘tough on crime’ and no political party wants to be seen to be the softest on crime.

Kavanagh also highlighted how Art 3 of Protocol 1 to the ECHR does not explicitly provide for the ‘right to vote’. It can fit into the criticism that the court increasingly stretches its ‘living instrument’ doctrine too far, and finding a ‘right to vote’ is a big extrapolation from the text. However Jeremy Waldron flatly disagreed with this point, arguing that the Art 3 requires ‘free elections’, held by ‘secret ballot’, ‘under conditions which will ensure the free expression of the people’, in this context, he argues that the ‘right to vote’ is a necessary implication.

There are issues with the Hirst case itself. Its highly unfortunate that the domestic case only went to the Divisional Court, [2001] EWHC Admin 239, with leave to appeal refused by the Court of Appeal on the grounds of there being no reasonable chance of success, [2001] EWCA Civ 927. If more judicial muscle had been applied at the domestic level then the ECtHR might have responded differently. Aileen Kavanagh captured the impact of the ECtHR’s judgment by stating that the judges misjudged the politics on the issue. They simply thought that they were dealing with a thirty year old law, which drew on Victorian legislation and the judges did not appear to understand that reasonable people could and did disagree over prisoner voting. The Court drew on previous case law and assumed a right to vote, with little justification being given. They dismissed the fact that thirteen out of 47 member states have bans on prisoner voting, when this could have been a ground on which to apply the margin of appreciation. Another interesting feature is how the Court drew a negative inference from the lack of parliamentary debate on the issue, which, as Lord Sumption suggested in Chester,could in principle be an example of a ‘complete consensus’ [para 136] on the matter. Probably this aspect would be best viewed as a neutral consideration.

The Study of Parliament Group and the UK Constitutional Law Association would like to thank all four speakers for a clear and illuminating discussion and Alexander Horne for chairing the discussion. A special thanks should go to Liz Carter at UCL and Jack Simson Caird for organising the event.

Craig Prescott is a Teaching Assistant at the University of Manchester and Visiting Tutor at King’s College London.

Suggested citation: C. Prescott, ‘Conference Report: Prisoner Voting and the Constitution 18th June 2014, Faculty of Laws, UCL’ UK Const. L. Blog (9th July 2013) (available at http://ukconstitutionallaw.org)

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Comment on Hong Kong: Cora Chan: When, if ever, will Hong Kong see democracy?

CoraSeventeen years ago China resumed sovereignty over Hong Kong. China promised a high degree of autonomy and separate economic, legal and social systems for Hong Kong in an international treaty, the 1984 Sino-British Joint Declaration. These promises were concretised in Hong Kong’s post-handover constitution, the Basic Law.

Hong Kong enjoys more governance powers than many other local regions in the world. However, a crucial criterion in assessing the degree of autonomy Hong Kong has is the extent to which its people can elect their own government. The past year has seen heated discussions over how the Chief Executive of Hong Kong (CE) should be returned in 2017. In the past, the CE was selected by an Election Committee that was dominated by members who were pro- Beijing and business elites, and which electoral base had never exceeded 7% of the electorate at large. Article 45 of the Basic Law provides that the CE shall be returned by election or through consultations and appointed by Beijing, the “ultimate aim” being selection of the CE “by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures” (emphasis added). So the ideal system mandated by the Basic Law consists of three stages: nomination by a committee, election by the general public on candidates returned by the committee, and appointment by Beijing.

In 2007, the National People’s Congress Standing Committee (“NPCSC”) gave the green light for universal suffrage of the CE in 2017 (see the NPCSC’s 2007 Decision). This sparked off debates over what universal suffrage should look like in that year.

Constitutionally, changes to the current electoral system can only take place after the NPCSC determines that there is a need to introduce changes, and the proposed change is endorsed by two-thirds of legislative councillors in Hong Kong, the CE and the NPCSC (see the NPCSC’s 2004 Interpretation on Article 7 of Annex I). If these parties cannot agree on an electoral model, the status quo (i.e. CE elected by an unrepresentative Election Committee) will continue and universal suffrage will be deferred for another term. Nevertheless, the prospect of compromise is dim. Beijing and pan-democrats in Hong Kong (the latter controlling around one-third of the legislature) disagree on all pertinent issues. Under Article 158 of the Basic Law, the final power of interpreting such Law is vested with the NPCSC. But until the NPCSC issues a binding interpretation on Article 45 of the Basic Law – and this has not happened yet – courts and government institutions in Hong Kong are free to interpret the provision using the common law approach, subject to a duty to refer by the final court. So far there is still room for pan-democrats to dispute, within the framework of the Basic Law, Beijing’s understanding of Article 45 because the NPCSC has not yet formally issued an interpretation on this article.

The strife between Beijing and pan-democrats highlights some of the contrasting features between universal suffrage with Chinese characteristics and universal suffrage as popularly understood. Beijing emphasizes that a careful screening process by the Nomination Committee is needed to ensure that the CE is someone that “loves the country”. To the pan-democrats, this is just an excuse to bar them from running. Excluding them at the nomination phase or final appointment stage may not make much difference to the result, but sifting them out at the former may save Beijing the embarrassment of refusing to appoint someone that has won popular support. For Beijing, the composition of the Nomination Committee should be modelled upon that of the existing Election Committee. The argument goes that since the Basic Law described the latter as “broadly representative” and the same term was used in Article 45 to describe the former, the two committees should be composed according to the same principles. For pan-democrats, the Election Committee is not “broadly representative”, but even if it is, the Basic Law does not preclude the Nomination Committee from being more representative than the Election Committee. For Beijing, the threshold for nomination must be high; to be successfully nominated, a person must be able to obtain support from at least half of the members of the Nomination Committee (what Beijing terms “organisational nomination”, a concept that is not found in the Basic Law). For pan-democrats, such high threshold would unreasonably preclude people opposed to the mainstream political views in the Committee from entering the race.

For Beijing, it seems, the requirement of universal suffrage only applies to the stage when the general public votes on the list of candidates returned by the Nomination Committee and is irrelevant to the nomination stage. Indeed Beijing believes that although the Basic Law entrenches the International Covenant on Civil and Political Rights (ICCPR) through Article 39, the requirements on universal and equal suffrage under Article 25 ICCPR do not apply to Hong Kong. This is because when the U.K. extended the ICCPR to Hong Kong, it made a reservation which stated that Article 25 of the Covenant did not require the latter to establish an elected legislature and executive. However, according to the United Nations Human Rights Committee and the Hong Kong court in Lee Miu Ling v Attorney General (No 2) (1995) 5 HKPLR 181, once elections are introduced in Hong Kong, the election procedures must comply with Article 25 ICCPR. In March this year, the Centre for Comparative and Public Law of the University of Hong Kong organised a roundtable involving international experts to discuss what Article 25 ICCPR requires of nomination procedures in democratic elections. The experts laid down a set of “Guiding Principles on the Compatibility of Election Mechanisms and Methods with International Standards”, which stipulate, inter alia, that any Nomination Committee should reflect the will and equal representation of the people, the process for electing members of the Nomination Committee should be inclusive, participatory and transparent, the nomination procedures should include processes of public consultation or civil nominations through the Nomination Committee (to be explained below), and there should not be unreasonable restrictions on people’s right to stand for election and be nominated, bearing in mind the need to comply with the principles of equality and non-discrimination.

In the past few months, an issue has taken centre stage: whether Hong Kong citizens should be allowed to directly nominate candidates, effectively by-passing the Nomination Committee. According to Beijing, any such system of “civil nomination” is unconstitutional – the Nomination Committee’s power under Article 45 of the Basic Law is substantive and not merely symbolic. In contrast, a faction within the pan-democrats believes that the term “democratic procedures” in Article 45 is broad enough to encompass a procedure whereby the Nomination Committee would automatically endorse as candidates those who are able to obtain the support of a certain percentage of the general electorate, and that civil nomination is needed as a safeguard against the Chinese government manipulating the Nomination Committee.

In my view, purely as a matter of constitutional interpretation, Article 45 of the Basic Law can be interpreted to support either side in the debate on civil nomination, and it is possible to reach this conclusion through common law or Chinese principles of interpretation. If we use the common law purposive approach to interpret Article 45, it is possible to argue that this provision, when read in light of other provisions in the Basic Law such as Article 39 entrenching the ICCPR, and the repeated messages of separate systems and autonomy in the Basic Law and the Sino-British Joint Declaration, aims to guarantee the right of Hong Kong people to elect their own leader. “Democratic procedures” can therefore be read liberally to embrace a procedure that requires the Nomination Committee to endorse recommendations from the public. Yet, it is also possible to argue, as the Bar Association has done, that under such a procedure the Nomination Committee would not be acting on its own. This would violate Article 45, which envisages the Nomination Committee to be the only organ for making nominations. If we adopt Chinese principles of interpretation, the analysis is even more straightforward. From the Chinese legal system’s point of view, there is no impediment to giving a legal provision a meaning that is not apparent from the text. Socialist interpretations of law can clarify or add things to the law. An example of this is the NPCSC’s 2004 interpretation of Article 7 of Annex I of the Basic Law, which effectively rewrote the phrase “if there is a need to amend [the method for electing the CE” into “if the NPCSC determines that there is a need to amend [such method]”.

My point is simply that as a matter of legal interpretation, the debate on civil nomination can go either way. Although the contest over civil nomination has been couched in legal terms, the obstacle to introducing a system with civil nomination is not legal, but political. The key is whether Beijing has the political will to grant such a system. The political nature of the battle is obvious when one considers the NPCSC’s hovering, nuclear power of issuing an interpretation of Article 45 of the Basic Law. There is only so much room for law in constitutional law, when the final power of interpreting the constitution is vested with a Socialist dictatorship.

Hong Kong people are aware of this. The high-profile civil movement “Occupy Central with Love and Peace” sets out to level the bargaining power between Beijing and the people of Hong Kong. This venture, started by my colleague, Associate Professor of Law, Benny Tai, threatens to launch a large-scale civil disobedience movement (illegally occupying major roads in the central district of Hong Kong, which will presumably create a de-stabling factor for Hong Kong’s economy and attract international attention) in the event Beijing does not grant genuine universal suffrage to Hong Kong. Recently the movement organised an unofficial referendum in which nearly 800,000 Hong Kong people voted (amidst unprecedented hacking of the online polling system), with 91% supporting an electoral model with civil nomination, and 88% of the belief that the legislature should veto a model that fails to meet international standards, depriving electors of a real choice of candidates. On 1 July, the day commemorating the resumption of sovereignty, 500,000 people engaged in a lawful demonstration to express their wish for genuine universal suffrage. That night, student organisations launched a small-scale “test” civil disobedience movement and sat in peacefully on a central road. The police arrested more than 500 protestors, an arrest of the largest scale in unauthorised demonstrations since the handover.

The number of participants in these events is partly boosted by the Chinese government issuing a White Paper on its policy towards Hong Kong in June. The most controversial parts of the Paper are its emphasis that the Chinese government retains control over all aspects of Hong Kong, including those that have been designated as falling within Hong Kong’s autonomy, and that all administrators in Hong Kong, including judges, must be patriotic. The Paper is seen by many locals as a defeat of promises of autonomy and a trample on cherished values of judicial independence, and triggered, on top of all else that was happening in Hong Kong, a silent march of 1,800 lawyers on 27 June.

The next date to look out for is when the NPCSC makes a determination on whether there is a need to introduce changes to the election system. The Hong Kong government’s 5-month consultation on electoral reform ended in May and it is expected to request the NPCSC for a determination later this summer. The democrats warned that if the NPCSC, in deciding whether there is a need to reform the election system, incidentally imposes unfair constraints on the nomination method, they would commence acts of civil disobedience immediately. The confrontation will likely continue, if subsequently the Hong Kong government submits to the legislature a proposal for electoral reform that is unacceptable to the pan-democrats. Whether civil responses in Hong Kong are able to restage David and Goliath depends on whether China still perceives the city to be of utility, the position of business tycoons in Hong Kong, and the politics within the Chinese Communist Party. The destination of genuine universal suffrage can be as near as 2017 or as far as never. All that is clear now is that the road ahead in Hong Kong’s journey to democracy is far from clear.

 

Cora Chan is an Assistant Professor of the Faculty of Law, University of Hong Kong and the UKCLA Hong Kong Correspondent. 

(Suggested citation: C. Chan, ‘When, if ever, will Hong Kong see democracy?’  U.K. Const. L. Blog (7th July 2014) (available at http://ukconstitutionallaw.org/)).

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Joseph Tomlinson: Ambitions and Constraints – A Report on the Second Conference on the Teaching of Public Law (2014)

JoeFollowing on from the success of last year’s inaugural Conference on the Teaching of Public Law at the University of Manchester, City Law School ably assumed hosting duties to allow the discussions to be advanced further. The enthusiasm that was so evident at last year’s event showed no sign of waning a year on, as interesting perspectives from contributors and stimulating discussion from attendees continued throughout the day’s four panel sessions. This post briefly summarises some of the key points that were raised by contributors and during discussions.

Public Law in Changing Times: Challenges Ahead

(Panel: Nick Barber, Oxford; Prof. Martin Loughlin, LSE; Dr Alison Young, Oxford; Prof. Maurice Sunkin, Essex; Dr Javier Oliva (Chair), Manchester)

The first panel was tasked with identifying what challenges teachers of public law may face in coming years. Alison Young began with comments about the nature of public law as a subject and the effects that has on the teaching of public law. A distinction was drawn between public law and other areas of law, the former being the sum of lots of interwoven ideas and the latter capable of being comprehended in a more linear, step-by-step fashion. One problem flowing from this is the difficultly of knowing the best ‘way in’ to the subject for students. In the face of the teaching challenge presented by the nature of the subject, it was noted that care must be taken to avoid a retreat into either an overly doctrinal or overly theoretical approach – both of which can lead to students attempting to just ‘learn five things about the rule of law’ for exam purposes. Continuing with the theme of how the nature of public law affects how it is taught, Martin Loughlin offered his view that public law is, in essence, a ‘label in search of a concept.’ Britain’s historical lack of a distinct public law means that, in contrast to continental public law systems, we lack clear concepts of central features within the subject. The absence of such conceptual clarity can translate into difficulties in conveying the subject to students.

Nick Barber followed those comments about the nature of the discipline by attempting to unpack the oft-heard marker’s complaint that students struggle to ‘make arguments’ or ‘lack creativity’ in assessments. He highlighted two potential deficiencies in the teaching of public law that may contribute to this complaint being so frequently made. First, was the issue of ‘coverage’: the ‘tell them about public law cases stuff’ is largely done well but the academic interest in judicial reasoning can become ‘fetishistic’ and exist at the expense of, amongst other things, looking at how institutions work, the empowering capabilities of public law, the processes of Parliament, local government, devolution and perhaps even statutes. Second, it was suggested that more could be done to equip students with the ‘tools’ to make arguments. Providing students with training on understanding and deploying statistics was suggested as one way to achieve this sort of argumentative creativity. As could the introduction of more political theory to public law courses. Overall, more could be done to give students a holistic view of the stuff that public law is made of and to provide students with the ability to criticise the content of the law.

Maurice Sunkin concluded the first panel by placing the teaching of public law in the broader contexts of legal education and university education – both of which are landscapes that are seemingly ever changing. Whilst it is likely to remain the case that all students of law will require a grasp of the fundamentals of public law, it will be of interest to see how this fits into broader institutional demands and the demands of the ‘consumer’ student. To that end, it was suggested that in the future there may be greater diversity in what is taught and how.

In discussion, it was suggested, in relation to the problems stemming from teaching a subject that can be more confusing than most on a law degree, that complexity may be a good thing when that complexity is harnessed and made constructive instead of destructive. We were also reminded of the need to be realistic about what can be covered in a first year public law course. Aside from time constraints, public law may be the first substantive law subject that students tackle and public law’s core concepts are more difficult to grasp than many of the other concepts encountered in the rest of a typical first year’s academic diet. These sort of pragmatic considerations naturally pose challenges in relation to how much of a role such things as normative political philosophy and statistics can play in a foundational undergraduate public law course public law, though such things may justify a place as part of the broader law curriculum.

Research-led Teaching

(Panel: Prof. Paul Craig, Oxford; Merris Amos, QMUL; Prof. Roger Masterman, Durham; Dr Kirsty Hughes, Cambridge; Dr Ioannis Kalpouzos (Chair), City)

The second panel saw contributors traverse the relationship between research and teaching. Paul Craig commenced the panel’s contributions on the same realistic note upon which the first panel concluded by observing that how much research-led teaching can occur depends primarily upon how much choice one has in what and how one teaches. If the opportunity exists, there is the possibility of translating a specialisation into a course – students may even recognise and appreciate the genuine interest of the teacher and feel inclined to embrace the subject more than they otherwise would. However, courses built on specialisations may be time-consuming to assemble, tricky to get approved and may only be a short-term fixture if centred on an individual’s particular interests and expertise. The solution may be found in building individual research interests into existing modules.

Merris Amos, considering the ways in which teaching can assist research, noted how gaps in teaching materials can provide a fruitful source of research ideas. Bringing research interests into the classroom can also allow for genuinely valuable student input, with a diverse student body drawing upon experiences and offering perspectives the public law teacher/researcher will not necessarily have considered. Using research activities to curate events-led teaching can also be useful but there is, of course, always the risk that events can overtake during teaching. Roger Masterman followed up with a contribution that focused on how providing students with opportunities to be autonomous researchers themselves possesses the virtue of creating more independent and critical students. Making the student the researcher also often leads to the student assuming increased ownership of their work. It may, therefore, ultimately have the effect of producing better skilled and more-employable graduates. Providing the student with opportunities to undertake research can be achieved through dissertations or other modules that place research at their core.

Kirsty Hughes, in a neat conclusion to the contributions from panel two, highlighted how research and teaching can often interact to the benefit of both. Transmitting the ideas involved in your research to students can be a good means of understanding how to transmit those same ideas effectively in your research. It may also be worthwhile – without having to circulate any drafts or other similar material – to introduce parts of your research into small group discussions. A key point was also made on the value of (teaching) textbooks as research. Such textbooks can heavily influence the shape and structure of the field yet the current REF approach to textbooks does not incentivize their production (and could even be seen to discourage their production).

In discussion, the assumption that teaching necessarily takes an academic away from their research was squarely challenged – research and teaching in public law can, in many ways, be made to work in tandem. It was noted that the interaction between the two may even become more of a necessity as student fees start to play a larger role in funding research, and students might start to ask what benefit they gain from this activity.

Assessment and Ph.D Students in Public Law

(Prof. Robert Thomas, Manchester; Dr Javier Oliva, Manchester; Ann Lyon, Plymouth; Jack Simson Caird, QMUL; Craig Prescott, KCL; Dr John Stanton (Chair), City)

Ann Lyon began panel three with a general overview of the range of assessment methods in public law – which often fit into a part of a wider assessment regime at institutions – and the familiar pros and cons of each assessment method.

Robert Thomas and Javier Oliva jointly tackled the topic of PhDs in public law. Robert started by noting the importance of PhDs in public law. Public law PhDs, of course, possess inherent importance in contributing to public law scholarship, but they also serve to launch the careers of the next generation of public law scholars (a PhD now being seen as highly desirable or necessary for most academic posts). As an academic community we must, therefore, facilitate and encourage the undertaking of public law PhDs. To achieve this we ought to cultivate an interest in both the topic of public law and the process of writing a PhD. Dissertations, workshops and one-to-one discussions can all be helpful in this endeavour. Support should also be offered in designing a PhD that is innovative but achievable. Perhaps most significantly, institutions must find ways of providing financial backing for those seeking to undertake a PhD in public law.

Javier Oliva followed on by discussing the public law PhD process. The central aim of the supervisor ought to be to guide the student to completion whilst attempting to ensure the student has a good general experience throughout their degree. Supervisors also need to be aware of the personal challenges facing students during their PhD and be aware of particular challenges facing international and part-time students. One interesting topic that was raised was whether the supervisors should be experts in the particular area of the PhD – though it is not strictly necessary, it would seem to be a good idea that at least one member of the supervisory team possesses expertise in the area of the research. On an important last note, it was suggested that universities should be honest and rigorous when reviewing students’ progress.

It was, then, the turn of the PhD students themselves to have their say. Craig Prescott astutely noted the paucity of public law-specific PhD events in the UK. As an interesting side-note, it was observed how formulating a PhD proposal is particularly difficult for those who are outside of an academic institution at the time of application, due either to a lack of guidance or a lack of access to materials. Craig also endorsed the utility of the Graduate Teaching Assistant (GTA) method of funding research as it allows a PhD to feel part of the academic community at their institution (though research time ought to be protected from excessive teaching demands). Jack Simson Caird continued by similarly endorsing the utility of the GTA model of funding and similarly endorsing its ability to bring students into closer contact with the academic community. The paucity of public law PhD events and the distinct lack of any sort of network between public law PhDs at different institutions was again flagged as a serious deficiency.

Resources and Technology in the Teaching of Public Law

(Dr Mike Gordon, Liverpool; Prof. Andrew Le Sueur, Essex; Dr Mark Elliott, Cambridge; Brian Thompson, Liverpool; Ann Lyon (Chair), Plymouth)

Brian Thompson started the fourth session by highlighting how technology has been embraced in public law teaching and how this has been both a good and bad development. His main concern was that whilst technology may be convenient we may be deskilling students of valuable research skills through its use.

Mark Elliot, the author of the Public Law for Everyone blog, focused on the use of the blog in public law scholarship and teaching (Mark’s own full blog post on the use of blogging in public law can be found here.  There appear to be good reasons for public lawyers to get involved in blogging. It can be a good method of producing brief comment pieces, particularly on topical issues. It can also be a useful platform for posting short, abstract-like pieces about early-stage research ideas. Online discussions on blog posts can also prove fruitful (once the occasional offensive, libelous or otherwise generally unhelpful comments are deleted). Entering the blogosphere can also be a means of extending impact (not in the REF sense!) as blogs are perhaps more likely to be accessed by (and found to be intellectually accessible to) non-law colleagues than the more traditional channels of academic output. A blog may also be a useful way of reaching and assisting students studying public law. The blog, therefore, can be a useful tool for the public law academic but it has to be used appropriately. For instance, one cannot hope to be a perfectionist or seek comprehensiveness when blogging. A blog is instead a place more suited for formative ideas and is (naturally) distinct from a peer-reviewed article and should be seen as such by readers. Blogging can also become – but does not have to be – a distraction from research.

Mike Gordon then discussed (with some interactive demonstrations) how technology – particularly twitter and interacting polling technology – may be useful in engaging students in traditionally passive learning environments, such as lectures. The key task is, however, finding the appropriate role for technology in teaching. Andrew Le Sueur followed up by suggesting that some of the common use of technology in public law teaching is indeedinappropriate. In what may be a surprising turn from one of the conference’s two tech-savvy ‘live tweeters’, Andrew concluded the day by attempting to ‘roll back’ the enthusiasm for the use of technology in teaching by presenting a ‘six-point plan for recovery.’ That plan, in brief, encouraged teachers of pubic law to:

      1. Recognise the value of handwriting;
      2. Enforce the value of going to the library;
      3. Encourage students to buy books;
      4. Make tutorials and small group sessions computer-free zones;
      5. Shut down all VLE discussion forums; and
      6. Stop using PowerPoint in teaching.

Some suggestions were, unsurprisingly, more controversial than others (the idea that the use of PowerPoint facilitates ‘the trivialization of the rule of law in three bullet points’ had both its supporters and it detractors). The core of the message was, however, much like what each of the contributors suggested: technology has its place in the teaching of public law and though we should seek to embrace it for its benefits, we should be equally cautious of embracing it at the expense of the virtues of other, more traditional means.

Concluding Remarks: Ambition and Constraints

The discussions throughout the day were, like last year, very lively and the conference continues to meet a clear desire to discuss the teaching of public law. Whilst this year’s exchanges, again like last year, showed a widely-held ambition to improve the teaching of public law, there was an acute awareness this year of the potential constraints teachers of public law operate within. These constraints may flow from, amongst other things, institutional configurations, what can be expected of first year law students and even the nature of public law itself. How public law teaching can be improved within these various constraints is the continuing challenge. 

 

Joseph Tomlinson is a Ph.D Candidate at the University of Manchester.

(Suggested citation: J. Tomlinson, ‘Ambitions and Constraints – A Report on the Second Conference on the Teaching of Public Law (2014)’  U.K. Const. L. Blog (2nd July 2014) (available at http://ukconstitutionallaw.org/)).

 

 

 

 

 

 

 

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David Mead: PUBLIC LAW CURRENT SURVEY

davidmead

The Public Law Current Survey was originally published in Public Law and is reprinted with the generous permission of that journal.

(This survey covers the three-month period 1st February to 30 April 2014)

 

Administration of Justice

See also Devolved nations; Human rights; Policing

Anonymity orders

A court order prohibiting the publication of any identifying particulars in relation to those aged under 18 “against or in respect of whom the proceedings are taken” (made under s.39 of the Children & Young Persons Act 1933) cannot last longer than, and so automatically expired on, the subject’s 18th birthday. It thus extended only to reports of the proceedings before that date (JC and RT v Central Criminal Court [2014] EWHC 1041 (QB)).

Legal Aid

The changes effected by the Criminal Aid (General) (Amendment) Regulations 2013, SI 2013, No 2790 were not unlawful. These removed from the scope of criminal legal aid in prison law cases seven areas including pre-tariff reviews before the Parole Board, category A reviews, eligibility of women prisoners for mother and baby units, segregation and access to offending behaviour courses. There was no case that they had been introduced without proper consultation. The claim that removal in these seven cases was bound to lead to unfair decision making in breach of the common law right of fairness, as was submitted, was premature addressing the situation which would operate, as the applicants saw it, once criminal legal aid for prison law was withdrawn. The claim that the changes constituted an unacceptable risk of interference with their rights of access to justice was unarguable and neither could the claimant overcome the high hurdle inherent in a claim founded on irrationality. Last, the submission that the Lord Chancellor’s decision to remove areas of prison law from criminal legal aid as a result of the Regulations was ultra vires his statutory and constitutional role under the Constitutional Reform Act 2005 to uphold the rule of law went nowhere. As the Court noted, whatever concerns the claimants might have had, for the time being the forum for advancing them remained the political (R (oao Howard League for Penal Reform) v Lord Chancellor [2014] EWHC 709 (Admin)).

 

Armed forces

Reports

The Defence Select Committee 14th report “Intervention: Why, When and How?” (HC 952) was published on 28 April. Its 12th report (HC 931, 2 April) was “UK Armed forces personnel and the legal framework for future operations” and its 10th (HC 772, 25 March) “Remote Control: Remotely Piloted Air Systems – current and future UK use”. Its 9th report was “Future Army 2020” (HC 576, 6 March). The House of Commons Political and Constitutional Reform Committee 12th report (HC 892, 27 March) was “Parliament’s role in conflict decisions: a way forward”.

 

Confidentiality (and data protection)

Data Retention

The CJEU upheld the opinion of A-G Pedro Cruz Villalón and declared that the Data Retention Directive (Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks) was invalid as being a breach of the rights to privacy and protection of personal data contained in Articles 7 and 8 of the Charter. By requiring the retention of those data and by allowing the competent national authorities to access those data, the directive interfered in a particularly serious manner with those fundamental rights. While retaining data for the purpose of their possible transmission to the competent national authorities genuinely satisfied an objective of general interest, namely the fight against serious crime and, ultimately, public security, in adopting the Directive, the EU legislature had exceeded the limits imposed by the principle of proportionality: the wide-ranging and particularly serious interference was not sufficiently circumscribed to ensure that the interference was actually limited to what was strictly necessary; its generalised scope meant that there was no differentiation, limitation or exception made in light of the objective of fighting against serious crime; the Directive failed to lay down any objective criterion which would ensure that the competent national authorities had access to the data and could use them only for the purposes of prevention, detection or criminal prosecutions concerning offences that, in view of the extent and seriousness of the interference with the fundamental rights in question, might be considered to be sufficiently serious to justify such an interference. The period for which data had to be retained was arbitrary and uniform, and there were too few safeguards to ensure effective protection of the data against the risk of abuse and guard against any unlawful access and use (Joined Cases C-293/12 and C-594/12, Digital Rights Ireland and Seitlinger and Others, 8 April).

Information Commissioner

The Ministry of Justice announced the reappointment of Christopher Graham as the Information Commissioner for another two years (from 28 June), making his total tenure at its conclusion seven years. The Information Commissioner’s Office (ICO) launched its latest corporate plan “Looking Ahead, Staying Ahead” on 25 March with the Information Commissioner promising a fresh approach to the handling of issues raised by the public around data protection concerns. The plan marks a shift in focus, and identifies various strategic outcomes such as a high proportion of individuals having a basic awareness of their information rights, coupled with ready access to information on how to exercise those rights; development of people’s understanding of information rights and risks embedded as an output of the formal education system; and good information rights practice and the upholding of information rights being demonstrably driven by ICO’s casework and secured and underpinned by the use of the ICO’s regulatory tools.

Privacy

On 25 February, the ICO published an updated Privacy Impacts Assessments Code of Practice, to help organisations respect people’s privacy when changing the way they handle people’s information. The code explains the privacy issues that organisations should consider when planning projects that use personal information, including the need to consult with stakeholders, identify privacy risks and address these risks in the final project plan.

 

Constitution

See Government; Judicial Review; Judiciary

 

Crown

The House of Commons Political and Constitutional Reform Committee 11th report (HC 784, 26 March) was “The Impact of Queen’s and Prince’s Consent on the Legislative Process”.

 

Devolved nations

Devolved powers

On 3 March, the Commission on Devolution in Wales / Comisiwn ar Ddatganoli yng Nghymru (the Silk Commission) published its report on Part II of its remit on the wider powers of the National Assembly for Wales “Empowerment and Responsibility: Legislative Powers to Strengthen Wales”.

Judgment is awaited from the Supreme Court in the case of the Agricultural Sector (Wales) Bill Reference by the Attorney General for England and Wales (a reference under s.112 of the Government of Wales Act 2006) while the hearing in the case Recovery of Medical Costs for Asbestos Diseases (Wales) Bill – Reference by the Counsel General for Wales was scheduled for 14 and 15 May.

Legislation

On 13 March, Westminster passed the Northern Ireland (Miscellaneous Provisions) Act 2014. This makes provision about donations, loans and related transactions for political purposes in connection with Northern Ireland; amends the Northern Ireland Assembly Disqualification Act 1975 and the Northern Ireland Act 1998; and makes provision about the registration of electors and the administration of elections in Northern Ireland.

In Scotland, the Budget (Scotland) Act 2014 was passed on 5 February and received Royal Assent on 12 March. The Children and Young People (Scotland) Act 2014 was passed on 19 February and received Royal Assent on 27 March. It makes provision inter alia about the rights of children and young people and about investigations by the Commissioner for Children and Young People in Scotland; and about the provision of services and support for or in relation to children and young people. The Tribunals (Scotland) Act 2014was passed on 11 March and received Royal Assent on 15 April, establishing the First-tier Tribunal for Scotland and the Upper Tribunal for Scotland. The Public Bodies (Joint Working) (Scotland) Act 2014 was passed on 25 February and received Royal Assent on 1 April. It provides for the carrying out of functions of local authorities and Health Boards, requiring a jointly prepared integration scheme where a local authority and a Health Board cover the same geographical area, and makes further provision about certain functions of public bodies including under the National Health Service (Scotland) Act 1978.

On 28 February, the Welsh Affairs Committee at Westminster published its “Pre-legislative scrutiny of the draft Wales Bill” (4th report HC 962). The draft Wales Bill itself was presented to Parliament on 20 March, and an impact assessment published on 17 March. 2014 The Bill makes provision about elections to and membership of the National Assembly for Wales and about the Welsh Assembly Government. It also makes provisions about the setting by the Assembly of a rate of income tax to be paid by Welsh taxpayers and about the devolution of taxation powers to the Assembly (this requires related amendments to Part 4A of the Scotland Act 1998). It makes provision about borrowing by the Welsh Ministers and miscellaneous amendments in the law relating to Wales. The Bill had its second reading on 31 March 2014. The Bill will next be considered in a Committee of the whole House of Commons on 30 April 2014. Welsh legislation that was passed in the period includes the Social Services and Well-being (Wales) Bill/ Bil Gwasanaethau Cymdeithasol a Llesiant (Cymru) – 18 March – and The Education (Wales) Bill – Bil Addysg (Cymru) – 25 March. The four-week intimation period has ended for both without challenge and both Bills have therefore been submitted for Royal Assent. The former covers inter alia improving the well-being outcomes for people who need care and support, and carers who need support; and co-ordination and partnership by public authorities with a view to improving the well-being of people. The latter covers inter alia the appointment of HM Chief Inspector and HM Inspectors of education and training in Wales under section 19 of the Education Act 2005.

Scottish Referendum

The Scottish Affairs Select Committee 7th report was “The Referendum On Separation For Scotland: The Impact On Higher Education, Research And Tuition Fees” (HC 1444, 16 March) and also published  “The Referendum on Separation for Scotland, Session 2013–14 – Oral and written evidence – Volume IV” (HC 140, 24 March). The Scottish Government published “Higher Education Research in an Independent Scotland” (30 April) setting out its vision for the future of university research in an independent Scotland.

Westminster

On 6 March, MPs at Westminster took part in a general debate on Welsh affairs, a debate scheduled by the Backbench Business Committee following representation from Albert Owen, Elfyn Llywd, Roger Williams and Glyn Davies.

The Scottish Affairs Select Committee produced various reports in the period including:- “The Crown Estate in Scotland: follow-up” (5th report, HC 889, 7 March), “Blacklisting in Employment” (6th report HC 543, 14 March) and interim reports on zero hours contracts and land reform.

 

Discrimination and equality

See Ecclesiastical; Free speech; Judicial Review

 

Ecclesiastical

The applicant church was denied exemption from business rates in respect of its temple at Preston, an exemption that was reserved for buildings used for public religious worship contained within the Local Government Finance Act 1988. This did not give rise to violations of the Church’s rights under Article 9 of the Convention and Article 1 of Protocol No. 1, both taken alone and in conjunction with Article 14. So held the European Court of Human Rights in an application by the Mormon Church, with a worldwide membership of over 12 million people and approximately 180,000 adherents in the UK or the Republic of Ireland. While all the applicant’s places of worship that were open to the public, such as its chapels and stake centres, had the benefit of the full exemption from rates– as indeed did Church of England churches – its two temples were open only to the most devout of members who held what is called a “recommend”. Contracting States have a certain margin of appreciation in deciding whether and to what extent any interference is necessary. A wide margin is usually allowed to the State when it comes to general measures of economic or social strategy. This is because, given their direct knowledge of their society and its needs, the national authorities were in principle better placed than an international judge to appreciate what is “in the public interest”. The legislation was neutral, in that it is the same for all religious groups as regards the manifestation of religious beliefs in private; and indeed produces exactly the same negative consequences for the officially established Christian Church in England (the Church of England) as far as private chapels were concerned. Insofar as any difference of treatment between religious groups in comparable situations can be said to have been established in relation to tax exemption of places of worship, such difference of treatment had a reasonable and objective justification. In particular, the contested measure pursued a legitimate aim in the public interest and there was a reasonable relationship of proportionality between that aim and the means used to achieve it. The domestic authorities cannot be considered as having exceeded the margin of appreciation available to them in this context, even having due regard to the duties incumbent on the State by virtue of Article 9 of the Convention in relation to its exercise of its regulatory powers in the sphere of religious freedom (Church of the Latter-Day Saints v UK App 7552/09, ECtHR, 4 March).

 

Elections

See Devolved nations

 

Environment

 See EU

 

European Union

 See also Confidentiality; Extradition; Judiciary

 Opt-out

The Government’s response to the European Scrutiny, Home Affairs and Justice Committees’ joint Reports on the 2014 block opt-out decision was published on 26 March (HC 1177).

Charter

The CJEU confirmed that Art 51 of the Charter meant that fundamental rights contained in the Charter were as applicable in resolving disputes relating to a Member State’s implementation of national derogations from EU Law as to the implementation of EU Law itself. So held the CJEU in a preliminary reference arising from the attempted regulation by the Austrian authorities of the unauthorised operation of games of chance machines, by imposing administrative penalties. In so doing, the CJEU clarified the interpretation offered last year in Fransson (Case C‑617/10) on the scope of Art 51. Under the Court’s settled case-law, the fundamental rights guaranteed in the legal order of the EU are applicable in all situations governed by EU law, but not outside such situations. In this respect the Court had already previously observed that it had no power to examine the compatibility with the Charter of national legislation lying outside the scope of EU law. On the other hand, if such legislation fell within the scope of EU law, the Court, when requested to give a preliminary ruling, was duty-bound to provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation was compatible with the fundamental rights the observance of which the Court ensures. Where a Member State relied on overriding requirements in the public interest in order to justify rules which were liable to obstruct the exercise of a freedom e.g. to provide services, such justification, provided for by EU law, must be interpreted in the light of the general principles of EU law, in particular the fundamental rights guaranteed by the Charter. Thus, national rules can fall under the exceptions provided for only if they are compatible with the fundamental rights the observance of which is ensured by the Court. Were it is apparent that national legislation is such as to obstruct the exercise of one or more fundamental freedoms guaranteed by the Treaty, it may benefit from the exceptions provided for by EU law in order to justify that fact only in so far as that complies with the fundamental rights enforced by the Court. That obligation to comply with fundamental rights manifestly comes within the scope of EU law and, consequently, within that of the Charter. The use by a Member State of exceptions provided for by EU law in order to justify an obstruction of a fundamental freedom guaranteed by the Treaty must, therefore, be regarded as ‘implementing Union law’ within the meaning of Art 51 (Pfleger Case C‑390/12, 30 April).

Financial Transaction Tax

The CJEU dismissed as premature the UK’s action to annul the Council decision (Council Decision 2013/52/EU of 22 January 2013) authorising eleven Member States to use the enhanced cooperation procedure to set up a financial transaction tax (FTT). The UK’s claim was based on the grounds (i) that it produced extraterritorial effects and (ii) when read together with other directives on mutual assistance and administrative cooperation in the area of tax (such as Council Directive 2010/24/EU of 16 March 2010 concerning mutual assistance for the recovery of claims relating to taxes, duties and other measures (OJ 2010 L84, p.1) and Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation) would impose costs on non-participating States. The Court found that in the context of an action for the annulment of a decision which authorised enhanced cooperation, the Court’s review was related to the issue of whether the granting of such authorisation was valid. That review must not be confused with the review which may be undertaken, in the context of a subsequent action for annulment, of a measure adopted for the purposes of the implementation of the authorised enhanced cooperation. In this case, the Court found that the contested decision did no more than authorise the establishment of enhanced cooperation, but did not contain any substantive element on the FTT itself (UK v Council Case C-209/13, 30 April).

Copyright and duties of ISPs

A person who makes protected subject-matter available to the public on a website without the agreement of the rightholder is using the services of the business which provides internet access to persons accessing that subject-matter. Thus, an ISP which allows its customers to access protected subject-matter made available to the public on the internet by a third party is an intermediary whose services are used to infringe a copyright. The CJEU so held in a preliminary reference from the Austrian Oberster Gerichtshof seeking an interpretation of the Copyright Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L167, p.10). Two film companies had become aware that copyrighted films of theirs were being made available to view and to download without their consent on a website hosted by U, an ISP. The Austrian courts had granted an injunction against U prohibiting its customers from having access to the site. The Court held that the directive, which seeks to guarantee a high level of protection of rightholders, did not require a specific relationship between the person infringing copyright and the intermediary against whom an injunction may be issued. Nor was it necessary to prove that the customers of the ISP actually access the protected subject-matter made accessible on the third party’s website, because the directive required that the measures which the Member States must take in order to conform to that directive were aimed not only at bringing infringements of copyright and of related rights to an end, but also at preventing them. Given the conflict, in the context of an injunction, between copyrights and related rights (which are intellectual property) with the freedom to conduct a business, which economic agents (such as ISPs) enjoy, Member States must ensure that they rely on an interpretation of EU law and their national law which allows a fair balance to be struck between those fundamental rights. The injunction sought here did not seem to infringe the very substance of that right. In general, the fundamental rights concerned did not preclude such injunctions on two conditions: (i) that the measures taken by the ISP did not unnecessarily deprive users of the possibility of lawfully accessing the information available and (ii) that those measures had the effect of preventing unauthorised access to the protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging users from accessing it (UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft mbH Case C-314/12, 27 March).

Parliamentary activity

The House of Lords EU Select Committee 9th report “The Role of National Parliaments in the European Union” (HL 151) was published on 24 March.   The House of Commons European Scrutiny Committee 43rd report “The application of the EU Charter of Fundamental Rights in the UK: a state of confusion” (HC 979) was published on 2 April, in part prompted by the reported comments made by Mostyn J in R (aoa AB) v Secretary of State for the Home Department [2013] EWHC 3453 (Admin) – that the Charter of Fundamental Rights, which included rights that go beyond rights protected in the ECHR, was now legally binding in the UK. This itself was derived from an interpretation of NS (Joined cases C-411/10 and C-493/10 [2013] QB 102). At its meeting on 5 February, the European Scrutiny Committee considered Commission Communication: Towards the elimination of female genital mutilation (COM(13) 883 (see 34th report, HC 83-xxxi 18 February) and at its 26 February meeting, Commission Communication: A policy framework for climate and energy in the period from 2020 to 2030 (COM(14) 15) and High volume hydraulic fracturing (fracking) in the EU (Commission Communication COM(14) 23 and Commission recommendation C(2014) 267): see 37th report HC 83-xxxiv. At its 12 March meeting, it considered a Draft Directive on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services (COM(12) 131): see 39th report, HC 83-xxxvi, 26 March.

 

Extradition, deportation and immigration 

Immigration Bill

The JCHR published its 12th report “Legislative Scrutiny: Immigration Bill Second report” (HL 142/HC 1120, 3 March) looking specifically at the possible use of new powers contained in Clause 60 of the Immigration Bill to deprive naturalised UK citizens of their UK citizenship and leave them stateless. The Committee expressed significant concerns and recommended that the Bill be amended to make it a precondition of the making of an order by the Secretary of State that the deprivation be compatible with the UK’s obligations under international law. While the JCHR accepted that enacting the power in clause 60 did not in strict legal terms involve any breach by the UK of its obligations under the UN Conventions on Statelessness, it believed that it would lead to an increase in statelessness.  This would represent a significant change of position in the human rights policy of the UK, which had historically been a champion of global efforts to reduce statelessness. The report also returned to some of the issues set out in its first Report on the Bill such as notification of family members if they are facing removal; removal of appeal rights; best interests of the child; and legal aid for deportation and removal decisions.

The House of Lords Select Committee on the Constitution also published a report on the Bill (HL 148, 7 March) raising three concerns: deprivation of nationality (clause 60); the reduction in the grounds on which appeals can be made against decisions of the Secretary of State (clause 11) and the definition of the public interest factors in immigration decisions that engage Article 8, a “constitutional innovation” (clause 14).

Asylum

In EU Law, the interpretation to be given to the concept of ‘internal armed conflict’ within Directive 2004/83/EC of 29 April 2004 (OJ 2004 L 304, p.12, and – corrigendum – OJ 2005 L 204, p.24) on minimum standards for the qualification and status of third country nationals or stateless persons as refugees must be independent of the definition used in international humanitarian law. An internal armed conflict must be found to exist where a State’s armed forces confront one or more armed groups or where two or more armed groups confront each other, regardless of the intensity of the confrontations, the level of organisation of the armed forces involved or the duration of the conflict (Diakité v Commissaire général aux réfugiés et aux apatrides Case C-285/12, 30 January).

Where an asylum seeker in the UK claims that if they are returned to the country in which they first claimed asylum (here Italy) they would face ill-treatment in breach of Article 3, they did not have to show a systemic breach in the receiving country. So held the Supreme Court unanimously, overturning the Court of Appeal, and allowing appeals by four asylum seekers’ (one from Iran and three from Eritrea) and remitting all four to the administrative court to determine on the facts whether in each case it was established that there was a real possibility that, if returned to Italy, the claimant would be subject to treatment in violation of the Convention. All four had argued they would either be destitute and homeless or would face risk of repeated rape in Italy, a country on the UK’s presumed safe list. The Court of Appeal had been wrong to follow the systemic breach case law of the CJEU (such as in NS (Afghanistan) v Secretary of State for the Home Department[2013] QB 102) in the context of Council Regulation 343/2003 on the processing of asylum applications (commonly known as Dublin II), rather than the established case law of the ECHR which required only a breach. The CJEU’s focus was not on the sort of breach that had to be established, but rather on EU member states’ awareness of such a breach. There was therefore no warrant for concluding that the CJEU’s judgment was that there had to be a systemic breach; it only meant that a systemic breach would be enough. The CJEU was not calling into question the well-established test applied in human rights law, which is that the removal of a person from a member state of the Council of Europe to another country is forbidden, if it is shown that there is a real risk that the person transferred will suffer treatment contrary to Article 3 of the ECHR. Indeed, the EU required its laws to be interpreted in accordance with fundamental rights, such as those guaranteed by the ECHR. Article 4 of the EU Charter of Fundamental Rights contained a human rights protection in equivalent language to Article 3. The UK, as an EU member state, was obliged to observe and promote the application of the Charter whenever implementing an instrument of EU law. There was no dispute that the positive obligations under Article 3 included the duty to protect asylum seekers from deliberate harm by being exposed to living conditions which cause ill treatment, and for which the state bore responsibility. Where, therefore, it can be shown that the conditions in which an asylum seeker will be required to live if returned under Dublin II are such that there is a real risk that he will be subjected to inhuman or degrading treatment, his or her removal to that state is forbidden (R (oao EM (Eritrea) v Secretary of State for the Home Department [2014] UKSC 12).

Extradition

It did not violate the specialty principle – that an individual extradited to the UK to face trial may only be tried for crimes allegedly committed before the extradition if those crimes formed the basis of the extradition request – to seek to commit O’B for contempt (O’B having violated a previous court order imposed before he fled from the UK) where O’B had been extradited from the USA to face fraud charges. So held the Supreme Court in an appeal by O’B arising from the reinstitution of contempt proceedings that followed from his breach of a restraint order imposed under s.41 of the Proceeds of Crime Act 2002 (POCA), rejecting his claim that the court lacked jurisdiction. Disobedience to the Common Serjeant’s POCA order constituted civil not criminal contempt. The primary purpose of civil contempt was to ensure that court orders were observed, and the contemnor did not acquire a criminal record. It thus could not and did not constitute an extradition offence and so did not and could not fall foul of the specialty principle. In any event, a proper reading of s.148 and s.151 of the Extradition Act 2003 was to limit extradition offences and requests to those offences that constituted criminal offences in the requesting state, here the UK (R v O’Brien [2014] UKSC 23).

 

Freedom of Information

 Exemptions

As a matter of ordinary statutory construction, the absolute exemption from disclosure contained in s.32(2) of the Freedom of Information Act 2000 (FoIA) continued after the end of an inquiry. The words “for the purposes of the inquiry or arbitration” qualify the immediately preceding words in s.32(2)(a) and s.(32)(2)(b) and referred to the original purpose for which the relevant documents were placed in the custody of, or were created by, a person conducting an inquiry. They did not refer to the purpose for which a public authority held the documents at the time of a request for information. So held the Supreme Court by a majority (5:2) in an appeal brought by K, a journalist who had made requests for information in relation to three inquiries conducted by the Charity Commission between 2003 and 2005 into the ‘Mariam Appeal’, launched by George Galloway in connection with the sanctions imposed on Iraq following the first Gulf War. K was not assisted by appeals to Article 10 of the ECHR. Had it been necessary for the resolution of the appeal, the Supreme Court would have concluded that article 10 did not contain a freestanding right to receive information from public authorities. Recent developments in the case law of the European Court of Human Rights were not sufficient to justify a departure from the principle clearly established in a series of Grand Chamber decisions on Article 10 such as Leander v Sweden(1987) 9 EHRR 433, Gaskin v United Kingdom(1990) 12 EHRR 36, Guerra v Italy(1998) 26 EHRR 357 and Roche v United Kingdom(2006) 42 EHRR 30. There remained in the Charity Commissioners the power to disclose information outside the FoIA and the exercise of that would be subject to judicial review. (Per Lord Mance) given the importance of the principles of openness and transparency, courts would apply a very high standard of review to any decision not to disclose information in answer to questions of real public interest raised by a journalist in relation to inquiries on which the Charity Commission had published reports, and would take into account similar factors and provide a no less favourable standard of protection for a person seeking information, as any review under Article 10 of the ECHR. Lord Wilson and Lord Carnwath (dissenting) would have allowed K’s appeal on the basis that he had a right to receive the requested information under Article 10 and would have read down s.32(2) such that the absolute exemption expired at the end of the relevant inquiry. That would have preserved the FOIA as the mechanism for obtaining information, so offering a number of advantages to a person seeking information compared with a judicial review (Kennedy v The Charity Commission [2014] UKSC 20).

Note: the speeches contain further discussion of the “mirror principle” in s.2 of the HRA, and the relative roles of common law rights and those under the HRA 

Attorney-General’s certificate

It did not constitute “reasonable grounds” within s.53(2) of the FoIA for the Attorney-General to issue a certificate exempting material from disclosure simply because he disagreed with – or simply reached a different conclusion to – the Upper Tribunal in weighing the competing public interests involved. So held the Court of Appeal, overturning the decision of the High Court and quashing the A-G’s certificate. The decision of the Upper Tribunal which entitled E to have disclosure of the “advocacy correspondence”, that is correspondence in which The Prince of Wales advocated certain causes which were of particular interest to him, was reinstated. Something more was required of the A-G than simple disagreement. Examples of what would suffice were that there had been a material change of circumstances since the tribunal decision or that the decision of the tribunal was demonstrably flawed in fact or in law. The fact that a s.53(2) certificate involved making an evaluative judgment (rather than a finding of primary fact) was not material to whether the accountable person had reasonable grounds for forming a different opinion from that of the tribunal. The certificate was also unlawful as being incompatible with EU Law in so far as it related to environmental information. This in turn tainted the whole certificate, not simply those aspects relating to environmental information (R (oao Evans) v Attorney-General[2014] EWCA Civ 254).

Freedom of speech

 See also Administration of justice; EU; Parliament; Policing

It did not violate C’s rights under Article 10 of the ECHR for T to decide not to allow adverts on the sides of its London buses that said “Not Gay! Ex-gay, post-gay and proud, get over it”. So held the Court of Appeal, upholding the decision of the High Court not to grant relief to C, a non-profit Christian initiative seeking to support men and women with homosexual issues who voluntarily sought a change in sexual preference and expression. T was responsible for the provision of passenger transport services in Greater London. T’s policy included the term that advertisements would not be approved if, inter alia, in T’s reasonable opinion, the advertisement was likely to cause widespread or serious offence to members of the public or contained images or messages which related to matters of public controversy and sensitivity. The standards of “offensiveness” and “public controversy” were sufficiently precise to meet the requirement of legal certainty. Both “offence” and “controversy” were uncomplicated ordinary English words. They were both concepts that were frequently used to set regulatory standards of decency. The policy too sought to achieve the legitimate aims of respecting the dignity and private life of individuals of a particular sexual orientation and ensuring T’s compliance with its statutory duties under s.149 of the Equality Act 2010. The ban was proportionate: the restrictions imposed on C only applied to the advertisements placed on T’s network. It was not faced with a total prohibition on publishing and disseminating its message. The restrictions were justified in view of the prominence of the advertisements and the fact that they would be seen by, and cause offence to, large numbers of the public in central London. Moreover, for those who were gay, the advertisements would be liable to interfere with the right to respect for their private life under Article 8(1). The advertisements too were liable to encourage homophobic views and homophobia places gays at risk. Closely linked to this was T’s duty under s.149 which pointed strongly against allowing the advertisement to appear on its buses, since it would encourage discrimination. The fact that an earlier advert by Stonewall – “Some people are gay; get over it” – was permitted did not render the decision in respect of C unlawful. The inconsistency of the application of the policy was outweighed by other factors. The Stonewall advertisement was intended to promote tolerance of homosexuals and discourage homophobic bullying whereas C’s could be seen as encouraging homophobia and put homosexuals at risk, as well as leading to breaches of the s.149 duty. Article 9 added nothing to the case. However, the case was remitted to the judge to assess whether (i) the decision was taken on the instructions of the Mayor for London rather than T and if so (ii) it had been taken for the improper purpose of advancing the Mayor’s election campaign (R (aoa Core Issues Trust) v Transport for London [2014] EWCA Civ 34). 

Government and Civil Service

Parliamentary reports

The House of Lords Select Committee on the Constitution 5th report (HL 130, 12 February) was “Constitutional implications of coalition government” covering the formation of government, government and its programme, the operation of government, including collective responsibility, and the end of Parliament. “Government Foreign Policy towards the United States” was the topic of the Foreign Affairs Committee 8th report (HC 695, 3 April). The Public Administration Select Committee 9th report (HC 1041, 28 February) was “Latest proposals for ministerial involvement in permanent secretary appointments: PASC’s recommendations”. The Public Accounts Committee 47th report (HC 777, 14 March) was “Contracting out public services to the private sector”.

 

Human Rights

 See also Confidentiality; Ecclesiastical; EU; Extradition; Freedom of Information; Judiciary; Judicial Review; Policing; Prisoners; Terrorism

Article 2

It was premature and thus inadmissible to raise a complaint under Article 2, in respect of the UK’s alleged failure to conduct a prompt, effective and independent investigation into the deaths of family members at the Hillsborough tragedy in 1989, founded on the fact that there had not been sufficient levels of public scrutiny and family participation. Following the setting up of the Hillsborough Independent Panel in 2009 and given the pending inquests and investigations, so far the various UK authorities had taken prompt and effective measures to investigate further the deaths of the Hillsborough victims (Harrison v UK (44301/13, ECtHR admissibility decision, 25 March).

The Secretary of State did not have a duty under the Inquiries Act 2005 to establish a public inquiry into the Batang Kalir massacre in 1948 (during the Malayan emergency) when 24 civilians were allegedly executed by the British Army without any justification, and he had not erred in exercising his discretion thereunder in refusing to establish one. So held the Court of Appeal in refusing an appeal brought by the victims’ families. While it was probable that, in light of Janowiec v Russia (App 55508/07, 21 October 2013) on the issue of retrospectivity, given the limited nature of the investigation which took place before the critical date and the potential significance of the new material which had emerged since but which had never been subjected to the full rigour of independent evaluation, the ECtHR would find the “genuine connection” test satisfied (such that the applicants could claim to have at least an arguable chance of success before the Strasbourg court on the issue), the Secretary of State had nonetheless not erred in law or breached the applicant’s rights under Article 2 in failing to order an inquiry. Domestic courts still continued to be bound, on the question of retrospectivity, by Re McKerr[2004] 1 WLR 807. The Court of Appeal in the instant case did not accept that a majority of the Supreme Court in Re McCaughey[2011] 2 WLR 1279 overruled McKerr on that point or intended to do so. If they had so intended, they would have said so. Any attempt to move in that direction would now be a matter for the Supreme Court rather than for the Court of Appeal. Neither did common law require the development of a right to such an inquiry by reference to customary international law (which in any event at the relevant time did not impose such an obligation). The Human Rights Act, as properly construed in domestic law in relation to its temporal and territorial limitations, has set the parameters within which a right to an investigation can be claimed. It was not the intention of Parliament to leave open in domestic law a mandatory duty without temporal limitation by reference to customary international law. Lastly, the decision was not Wednesbury unlawful (Keyu v Secretary of State for Foreign and Commonwealth Affairs [2014] EWCA Civ 312).

Article 6

The European Court declared as inadmissible a challenge under Article 6 that despite the size, complexity and importance, neither legal aid nor any other source of funding was made available to permit the families of service personnel to pursue their claims against the Ministry of Defence for damages and loss allegedly arising from nuclear testing in the Pacific in the 1950s and thus to exercise their right of access to the courts. Applications under Article 2 – the failure to hold a public inquiry – were inadmissible on grounds of non-exhaustion of domestic remedies and incompatibility ratione temporiswith the scope of the Convention (Sinfield v UK, 61332/12, 18 February following domestic proceedings (Ministry of Defence v. A.B. and Others [2012] UKSC 9) in which the Supreme Court held that proceedings were time-barred).

Article 11

The ban on unlawful secondary union action contained in s.224 of TULRCA 1992 (exempting such action from the statutory protection against liability in tort regarding acts done “in contemplation or furtherance of a trade dispute” under s. 219 of the 1992 Act – the “golden formula”) while part of protected union activity within Article 11, was a proportionate restriction on that right. So held the ECHR in a challenge brought by R. While it was true both that the UK was one of a small group of European States to have adopted such a categorical stance on the matter and that throughout the two-decade long ban, the UK had been subject to critical comment by the ILO Committee of Experts and the ECSR, and while accepting that trade unions could find themselves severely hampered in the performance of their legitimate, normal activities in protecting their members’ interests by the ban (albeit that such far-reaching negative effects did not arise on the facts), the ban was not outside the UK’s margin of appreciation. In the sphere of social and economic policy, which must be taken to include a country’s industrial relations policy, the Court would generally respect the legislature’s policy choice unless it was “manifestly without reasonable foundation”. Moreover, the Court had long recognised the “special weight” to be accorded to the role of domestic policy-makers in matters of general policy on which opinions within a democratic society may reasonably differ widely. The ban on secondary action had remained intact for over twenty years, notwithstanding two changes of government during that time, denoting a democratic consensus in support of it, and an acceptance of the reasons for it, which span a broad spectrum of political opinion in the UK. These considerations led the Court to conclude that in its assessment of how the broader public interest was best served in any country in the often charged political, social and economic context of industrial relations, the domestic legislative authorities relied on reasons that were both relevant and sufficient for the purposes of Article 11 (RMT v UK App 31045/10, 8 April).

 

Inquiries

See also Human Rights

It was irrational at common law for the Secretary of State to refuse to set up a statutory inquiry under the Inquiries Act 2005 into the death of a man (L) who had died in London following ingestion of a radioactive substance where there was a strong suspicion it had been administered by Russian agents at the instigation of the Russian authorities. So held the Divisional Court in a judicial review challenge by L’s wife, quashing the refusal. While there was an ongoing inquest into L’s death, PII certificates in respect of many documents meant that the coroner had withdrawn from its scope many issues going to Russia’s culpability and preventability. This effectively meant that a wider inquest encompassing the clear public interest in establishing or denying Russia’s role in the alleged state-sponsored assassination would not be possible or would be at least very much compromised. Consequently, the notion entertained by the Secretary of State that an inquest could allay public concerns in relation to the issue was plainly unsustainable and so could not provide a rational basis. Neither was it a valid, sustainable reason to support the failure to hold an inquiry that PII material would not be made public so that nothing more would be gained. Undoubtedly public conclusions could be drawn from the material by any chair of the inquiry even if the material itself could not be disclosed publicly. The duty under Article 2 of the ECHR was here complied with on the facts by the police investigation and identification of likely suspects (R (oao Litvinenko) v Secretary of State for the Home Department [2014] EWHC 194 Admin).

 

Judicial Review

See also Freedom of Information; Inquiries; Policing

Procedure

In February, the Ministry of Justice published “Judicial Review: Proposals for Further Reform – the Government Response” (Cm 8811) the response to last year’s consultation that itself in turn produced 325 responses.

The JCHR published its 13th report of the session (HL 174/HC 868, 30 April) “The implications for access to justice of the Government’s proposals to reform judicial review”. This was heavily critical of the failure to demonstrate by clear evidence that non-immigration related judicial review had “expanded massively” in recent years; that there were real abuses of the process taking place; or that the current powers of the courts to deal with such abuse were inadequate. The JCJR also made criticisms based on human rights grounds and on the rule of law. Additionally, it offered views on the combined role of the Lord Chancellor and Secretary of State for Justice: the “Government’s proposals …expose the conflict inherent in the combined roles…which raises issues which should be considered by a number of parliamentary committees. We think the time is approaching for there to be a thoroughgoing review of the effect of combining in one person the roles of Lord Chancellor and Secretary of State for Justice and of the consequent restructuring of departmental responsibilities between the Home Office and the Ministry of Justice.”

Housing

It did not breach the public sector equality duty (contained in s.149 of the Equality Act 2010) and neither did it result in unlawful discrimination (within Article 14, combined with A1P1 of the ECHR) against those with disabilities for the government to have introduced the so-called “bedroom tax”, that is to have reduced the amount of housing benefit a public sector tenant could claim where their property was considered to have excess bedrooms. The effect of the 2012 Regulations was to reduce the eligible rent for the purpose of calculating means-tested housing benefit where the number of bedrooms in a property let exceeded the number to which a claimant was entitled (by reference to standard criteria set out in the regulations). The reduction in eligible rent was 14% where there was one excess bedroom and 25% where there were two or more. So held the Court of Appeal upholding the decision of the Divisional Court in a challenge brought to the Housing Benefit (Amendment) Regulations 2012 SI 2012 No. 3040 as further amended by the Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2013 SI 2013 No. 2828, both of which in turn amended the Housing Benefit Regulations 2006 SI 2006 No 213 (R (oao MA) v Secretary of State for Work and Pensions [2014] EWCA Civ 13).

Note: a challenge to the “benefit cap” imposed by the Welfare Reform Act 2012 and the Benefit Cap (Housing Benefit) Regulations 2012 SI 2012 No 2994 – that they were in breach of A1P1 and Art 8 read with Art 14 of the ECHR – brought by four single mothers who had escaped domestic abuse and were living in rented accommodation was similarly unsuccessful in the Court of Appeal but as it was argued before the Supreme Court in late April, it will be reported in a future issue: R (oao SG) v Secretary of State for Work and Pensions [2014] EWCA Civ 156.

 

Judiciary 

Appointments

Elisabeth Laing, Q.C., His Honour Judge William Davis, Q.C and His Honour Judge Roderick Newton have all been appointed Justices of the High Court. The House of Commons Justice Select Committee held a one-off evidence session on the Judicial Appointments Commission, on 5 March hearing from: Christopher Stephens, Chairman; Mr Justice Bean, Commissioner; and Dame Valerie Strachan, Commissioner, Judicial Appointments Commission.

Speeches

Speeches given by members of the senior judiciary include:-

Parliamentary

The Justice Select Committee held a one-off evidence session on the work of the Lord Chief Justice on 2 April.

 

Local Government 

The Communities and Local Government Select Committee 6th report (HC 712, 13 March) was on “Local government procurement”.

 

Ombudsmen

The Parliamentary and Health Service Ombudsman investigated 2,199 cases in 2013/14 compared to 384 the previous financial year, according to its own statistics published in April. This, the PHSO argued, was a result of changes in the way complaints are handled rather than there having been an actual increase in the number of complaints overall or a reflection of decreasing standards and levels of administration. Almost 80% of these investigations were about the NHS and the rest were about UK government departments and their agencies. On average, the time taken to complete an investigation halved, from 317 days in 2012/13 to 163.

On 28 April, the Public Administration Select Committee published its 14th report “Time for a People’s Ombudsman Service” (HC 655) recommending that the “MP filter”, be abolished, as is already the case in respect of NHS complaints; that the Parliamentary and Health Service Ombudsman have “own-initiative” powers to investigate areas of concern without having first to receive a complaint; that there be a consultation on the creation of a single public services ombudsman for England; and that a distinctive ombudsman service for UK non-devolved matters be created. The report should be read alongside its 12th report (HC 229) “More complaints please” (14 April).

 

Parliament

See also Armed forces; Crown; Ombudsman

Procedure

The House of Commons Procedure Committee published it 6th Report (HC 1220, 7 April): “Programming: proposal for a trial of new arrangements for the tabling of amendments to bills at report stage”. Its 5th report was “Private Members’ Bills” Government response and revised proposals” (HC 1171, 31 March) recommending that the House agree a convention that there should be a vote on second reading of a private Member’s bill at the end of a full day’s debate. Its 4th report (HC 1046, 13 February) was a monitoring report on written parliamentary questions.

Parliamentary Reports

Reports published in the period and not referred to elsewhere in this Survey include:

e-petitions

On 24 February, MPs took part in a general debate on an e-petition relating to holiday companies charging extra in school holidays. Total signatures reached 170,000 and the Backbench Business Committee allocated time.

Legislation

On 13 March, the following Public General Acts were passed at Westminster:-

  • The Anti-social Behaviour, Crime and Policing Act 2014. This introduces wider injunctions to prevent anti-social behaviour (replacing ASBOs), public space protection orders (PSPOs) and community protection notices, criminal behaviour orders following conviction. It amends the law relating to police powers of dispersal and creates the power to seek closure of premises associated with nuisance or disorder. It also makes provision for the recovery of possession of dwelling-houses on grounds of anti-social behaviour, as well as amending the law relating to DNA profiles and personal samples, Schedules 7 and 8 to the Terrorism Act 2000 (police powers at ports and borders), the Extradition Act 2003 and provisions relating to the use of amplified noise equipment near Westminster contained in the Police Reform and Social Responsibility Act 2011. It makes provision about firearms, about sexual harm and violence, and about forced marriage. Finally, it covers the College of Policing, the Independent Police Complaints Commission and the Serious Fraud Office.
  • The Children and Families Act 2014 makes provision about children and families, such as adoption and contact; about family justice; and about people with special educational needs or disabilities and further provision about the right to request flexible working.
  • The Citizenship (Armed Forces) Act 2014 is concerned with applications for naturalisation as British citizens made by members or former members of the armed forces.
  • The International Development (Gender Equality) Act 2014 promotes gender equality in the provision by the Government of development assistance and humanitarian assistance to countries outside the United Kingdom.
  • The Offender Rehabilitation Act 2014 makes provision about the release, and supervision after release, of offenders; about the extension period for extended sentence prisoners; and about community orders and suspended sentence orders.

Statutory instruments of interest include: those dealing with sanctions in relation to Ukraine (SI 2014, No 1100, SI 2014, No 1098, SI 2014, No 693 and SI 2014, No 497); The Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2014 (SI 2014, No 927), combined transport authority orders relating to Merseyside and south and west Yorkshire (SI 2014 Nos 863, 864 and 865); and The Equality Act 2006 (Dissolution of the Disability Committee) Order 2014 (SI 2014, No 406).

Standards

The Committee on Standards produced two reports, on Maria Miller and Patrick Mercer respectively (10th report, HC 1179 3 April; 11th report HC 1225 1 May). Miller was found to have breached rules on claiming expenses and Mercer found to have received consultancy fees in connection with tabling questions. After several days in the media spotlight, Miller resigned as Minister for Culture, Media and Sport and Mercer immediately resigned his seat as MP for Newark.

 

Policing

See also Parliament

Crime statistics

The Public Administration Select Committee published its 13th report (HC 760, 9 April), ‘Caught red-handed: Why we can’t count on Police Recorded Crime statistics’, followed by a backbench debate on 10 April. On 1 May, Her Majesty’s Inspectorate of Police published “Crime Recording: a matter of fact – an interim report of the inspection of crime data integrity in police forces in England and Wales” identifying serious concerns about the crime-recording process. HMIC found weak or absent management and supervision of crime-recording, significant under-recording of crime, serious sexual offences not being recorded, and some offenders having been issued with out-of-court disposals when their offending history could not justify it.

Use of force

The conclusions reached by the Inquiry chaired by Sir Christopher Holland in to the death of Azelle Rodney in 2005 – that there was no lawful justification for a police marksman (known as E7) to have opened fire and shot him six times – were not irrational. The High Court so held in refusing E7 permission to apply for judicial review to challenge the findings (R (oao E7) v Sir Christopher Holland [2014] EWHC 452 Admin).

Osman duty

A failure by the police to investigate thoroughly allegations of rape and serious sexual assault were capable of founding liability, as a public authority under s.6 of the HRA, for breach of Article 3. So held the High Court (Green J) giving judgment against the police arising out of their failure to investigate and so apprehend W the so-called “Black cab rapist” who drugged and raped over 100 women in a six-year period 2002-2008. The claimants were among his victims. On the facts, there was a systemic failing in five areas which accounted for the failure to apprehend W, and so for the failure to bring an end to the rapes. Article 3 imposed a duty upon the police to investigate. This covered the entire span of a case from investigation to trial, the purpose of which was to secure confidence in the rule of law in a democratic society. The duty was not conditional upon the State being guilty, directly or indirectly of misconduct itself and was triggered where there was a credible or arguable claim that a person had been subjected to treatment at the hands of a private party which met the description of torture or degrading or inhuman treatment. That included allegations of crime that were “grave” or “serious” such as rape and serious sexual assault. Where a credible allegation of a grave or serious crime was made, the police must investigate in an efficient and reasonable manner, one capable of leading to the identification and punishment of the perpetrator. The duty was one of means, not results. Whether a breach had occurred was measured by viewing the conduct of the police over a relevant time frame. The assessment of the efficiency and reasonableness of an investigation took account of its promptitude and also whether the offender was adequately prosecuted. Investigative failings might be systemic or operational. That said, not every failing attracted liability; an operational failing which, had it not occurred, would not have been “capable” of leading to the apprehension and prosecution of an offender was also not actionable. The police were only liable for failing to meet an operational standard that was capable of leading to the apprehension and prosecution of an offender. The mere fact that a civil claim against the offender had succeeded and/or that disciplinary measures had been taken against defaulting officers was not sufficient to expunge liability; Article 3 required an effective criminal investigation. The process of determining whether an investigation was “reasonable” or “capable” of leading to the apprehension, charge and conviction of a suspect was a fact sensitive exercise. It was also subject to the margin of appreciation and to proportionality. The law must not impose an excessive burden on police. On those matters, Strasbourg case law was consistent, settled and mature; it articulated a test which did not open the Pandora’s Box of liability for the police and when applied rigorously by the domestic courts should not be such as to create a disproportionate burden on the police; the duty acknowledged by Strasbourg case law was not one which jarred with common law traditions but, on the contrary, was consistent with domestic law; and the conclusion was one which the domestic courts had not (in their admittedly brief encounters with the principle) objected to (DSD and NBV v Commissioner of Police for the Metropolis [2014] EWHC 436 QB).

Police complaints

The Court of Appeal, overturning the Divisional Court, held on an application for judicial review that there was an arguable case that current ACPO guidance –which while requiring that officers involved in fatalities did not confer, did not require their separation prior to the arrival of investigators from the IPCC – was unlawful as a breach of Article 2 of the ECHR. D1′s son had been shot dead by police officers. D2′s son had suffered a cardiac arrest following his detention by police officers (R (oao Duggan) v ACPO; R (oao Delezuch) v Chief Constable of Leicestershire, unreported 7 March).

Production Orders

While the principle in Al Rawi v The Security Service [2011] UKSC 34 that it is not permissible in either a civil or criminal trial for one party to be prevented from seeing evidence relevant to the other’s case did not in general apply to statutory procedures designed to gather evidence from a third party since they did not involve the determination of substantive rights, the principle should apply to applications under Schedule 1 of the Police and Criminal Evidence Act 1984 to obtain journalistic material. Such an application, and any production order that eventuates, is likely to involve a journalist’s legal rights. This had been recognised by Parliament, which had established the special procedure. Parliament had required, by that special procedure, that an application for a production order should be made inter partes. As a result, when that application was made, there was a discrete legal issue between (here) the police and B. Equal treatment of the parties to that issue required that each should know what material the other is asking the court to take into account in making its decision, and should have a fair opportunity to respond to it. The Crown Court judge in this case should not have taken into account evidence from which B was excluded. So held the Supreme Court in application by B against which a production order had been made, in the absence of its representatives, as part of an investigation into leaked security documents (R (on the application of British Sky Broadcasting Limited v The Commissioner of Police of the Metropolis [2014] UKSC 17).

Stop and search

On 30 April, the Home Secretary made a statement in the House of Commons on the use of stop and search powers by the police indicating that perhaps as many as a quarter of a million stops could be illegal. She announced a reform package including a revised code of practice making clear what constituted “reasonable grounds for suspicion” under the Police and Criminal Evidence Act and a review of national police training to include “unconscious bias awareness training”.

Section 60 of the Criminal Justice and Public Order Act 1994 which permits stops and search without reasonable suspicion under a general authorisation based on (i) a reasonable belief that incidents involving serious violence might take place in any locality in that police area, and (ii) that it was expedient to give such an authorisation was not unlawful for being either a violation of Article 5 or 14 of the ECHR. It did not constitute a deprivation of liberty and there was no evidence that there was anything in the legislation which itself was racially discriminatory. So held the Court of Appeal upholding the decision of the court below (R (oao Roberts v Commissioner of Police for the Metropolis [2014] EWCA Civ 69).

 

Prisoners and mental health detainees

See also Administration of justice; Parliament

Whole life tariffs

It was not incompatible with Article 3 of the ECHR as determined in Vinter (App 66069/09 ECtHR judgment 9 July 2013) for a convicted defendant to be sentenced to a whole life term under s.269 of the Criminal Justice Act 2003. There was nothing in Vinter that gainsaid Parliament’s power to establish a framework of whole life sentences as a just punishment for the most heinous crimes. Vinter held that where there was the prospect of release and possibility of review, and provided a legal regime for review was in place at the time the sentence was passed, a life sentence would be compatible with Article 3. Here, the review regime in s.30 of the Crime (Sentences) Act 1997 was compatible with Article 3: it was sufficiently certain and following R v Bieber [2008] EWCA Crim 1601, the Secretary of State was bound to exercise the power in s.30 in a manner compatible with Article 3. The power of review arose in exceptional circumstances justifying release on compassionate grounds. The term was sufficiently certain and had in any event to be read compatibly with Article 3. Section 30 therefore gave offenders the possibility of release in exceptional circumstances. It was entirely consistent with the rule of law that applications were considered on an individual basis against the criteria that circumstances had changed to such an extent that the punishment was no longer justifiable (Re A-G’s reference (No. 69 of 2013); R v McLaughlin [2014] EWCA Crim 188).

Mental health and deprivation of liberty

What would be a deprivation of liberty for a non-disabled person is also a deprivation for a disabled person. The key feature was whether the person concerned was under continuous supervision and control and was not free to leave. The person’s compliance or lack of objection, the relative normality of the placement and the purpose behind it were all irrelevant to that objective question. So held the Supreme Court in joined applications by three individuals (two with learning difficulties and one with cerebral palsy and Down’s syndrome) who were either in a foster home or some form of residential accommodation either arranged by or provided by the local authority. P lived in accommodation arranged by his local social services authority, in a staffed bungalow with other residents near his home following the grant of a Court of Protection order. One to one support enabled him to leave the house frequently for activities and visits. Intervention was sometimes required when he exhibited challenging behaviour. MIG (aka P) was placed with a foster mother; she never attempted to leave the foster home by herself but would have been restrained from doing so had she tried. MEG (aka Q) lived in a residential home for learning disabled adolescents with complex needs. She sometimes required physical restraint and received tranquillising medication. None of the courts below had concluded that any of these arrangements constituted a deprivation of liberty. These were all overturned by the Supreme Court who held (in the case of MIG and MEG by a majority) that each was a deprivation of liberty and so needed authorisation by a court or by the procedures known as the deprivation of liberty safeguards (DOLS) in the Mental Capacity Act 2005 (introduced following HL v UK (2004) 40 EHRR 761) and subject to regular checks. The purpose of the DOLS was to secure independent professional assessment of (a) whether the person concerned lacked the capacity to make his own decision about whether to be accommodated in the hospital or care home for care or treatment, and (b) whether it was in his best interests to be detained. The ECtHR had established general principles relating to the deprivation of liberty of people with mental disorders or disabilities, albeit that it had not yet had to decide a case involving, as here, a person without capacity, who appeared content with their care placement, which was in a small group or domestic setting as close to home life as possible, and which had been initially authorised by a court. The general principles made it clear that it was important not to confuse the question of the benevolent justification for the care arrangements with the concept of deprivation of liberty. Human rights have a universal character and physical liberty was the same for everyone, regardless of their disabilities (P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council; P and Q aka MIG and MEG (by their litigation friend, the Official Solicitor) v Surrey County Council [2014] UKSC 19).

 

Public Order

In deciding whether a direct action protester had a defence to a charge of aggravated trespass contrary to s.68 of the Criminal Justice and Public Order Act 1994 – the disruption or obstruction of a third party’s lawful activity – the key was to ascertain whether the third party’s (alleged) criminal offence that was complained about was integral to the third party’s core activity carried on, and which was disrupted or obstructed. Not every incidental or collateral criminal offence could properly be said to affect the lawfulness of the activity, nor to render it criminal. It would not do so when there was some incidental or collateral offence, which was remote from the activity. So held the Supreme Court unanimously upholding the convictions of two campaigners who had mounted a non-violent protest in a London shop that specialised in selling beauty products derived from Dead Sea mineral material. The pair objected to the shop because its wares were connected with an Israeli-owned business in the West Bank. Thus, the protesters’ claim that the company running the shop was guilty of the offence of cheating the Revenue through asserting certain tax or excise advantages under an EC-Israeli Association Agreement which did not in fact extend to products originating in the Occupied Palestinian Territory was a classic example of a collateral, and in fact antecedent and remote, offence which did not affect the lawfulness of the core activity of the shop, namely retail selling At most, it meant that the importer was liable to repay the Revenue any duty which ought to have been paid but was not. The Supreme Court did narrow the seeming scope of the Divisional Court judgment which indicated the defence would be confined to situations where the disrupted or obstructed activity was “patently unlawful”. (DPP v Richardson [2014] UKSC 8).

 

Terrorism

See also Parliament

TPIMS

The Independent Reviewer of Terrorism Legislation, David Anderson QC, laid his annual report on the operation in 2013 of Terrorism Prevention and Investigation Measures (TPIMs), the successor to control orders, before Parliament on 27 March.  Only 10 people have been subject to TPIMs since 2012.  Two had absconded, and most of the other TPIMs expired after reaching their two-year limit.  On the same day, it was announced in a written ministerial statement that since February 2014 no TPIMs had been in force. The report makes ten recommendations which, if accepted, would strengthen the locational measures on TPIM subjects, provide for probation-led interventions, clarify the circumstances in which TPIMs can be sought and address deficiencies in the procedures for judicial appeal and review.

Counter-terrorism powers

The lawful use of the powers contained in Schedule 7 of the Terrorism Act 2000, to stop and question at ports, is for the purpose of determining whether M appears to be “concerned in the commission, preparation or instigation of acts of terrorism”. M was stopped at Heathrow en route to the USA, and (according to a Security Service assessment) was carrying items that would assist G (a journalist instrumental in the media publication of NSA and GCHQ material obtained from Edward Snowden) in releasing more material in his possession. On the facts, it was clear that the purpose of the stop and question was to ascertain the nature of the material which M was carrying and if on examination it proved to be as was feared, to neutralise the effects of its release (or further release) or dissemination and not the unlawful one, of assisting the Security Service in obtaining access to the material in M’s possession. So held the Divisional Court in an application for judicial review by M claiming that his detention and questioning were unlawful for want of legal authority and/or violation of his Convention rights. In deciding whether the statutory purpose was made out, the court was not limited to a consideration of the examining officers’ subjective state of mind. The primary evidence for the determination of the stop’s purpose was likely to be the terms of the instructions given to the examining officers. The power in Schedule 7 was given in order to provide a reasonable but limited opportunity for the ascertainment of a possibility: the possibility that a traveller at a port may be involved (“concerned” – s.40(1)(b)), directly or indirectly, in any of a range of terrorist activities enumerated in s.1(2) of the 2000 Act. If the possibility was established, the statute prescribed no particular consequence. The outcome of a Schedule 7 examination was thus open-ended. What happened would depend, plainly, on the outcome of the Schedule 7 examination including any searches where those had been carried out. There may be a prosecution for an offence under the Act, or indeed some other offence; materials in the subject’s possession may be retained if the general law allowed it; the subject might be released with no further action. The examining officers were not required, as a condition of the power’s lawful use, to have concluded before they executed the stop that the claimant “[appeared] to be a person falling within section 40(1)(b)“. The power’s very purpose was to ascertain whether the subject so appeared. Although M was not a journalist and the stolen GCHQ intelligence material he was carrying was not “journalistic material”, or if it was, only in the weakest sense, he was acting in support of G’s activities as a journalist and thus it was accepted that the Schedule 7 stop constituted an indirect interference with press freedom, and so with Article 10 of the ECHR. The Schedule 7 power was though not over-broad or arbitrary, and so was “prescribed by law”. Neither was the power unlawful in terms of Article 10 for want of any provision for prior judicial scrutiny. The Strasbourg court had not developed an absolute rule of prior judicial scrutiny for cases involving State interference with journalistic freedom, empowering states with the margin of appreciation (R (oao Miranda) v Secretary of State for the Home Department [2014] EWHC 255 Admin).

Note: there is some discussion by Laws LJ on the concept of proportionality in light of Lord Sumption’s restatement in Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39.

 

David Mead is Professor of UK Human Rights Law at the University of East Anglia. He is also Current Developments Correspondent for the UKCLA Blog, and Current Survey Editor of Public Law.

 

 

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James Hand: Lords response to Labour Peers’ Working Group Report – A Programme for Progress: The future of the House of Lords and its place in wider constitution.

James-Hand-140-x-150The House of Lords have recently debated the Labour Peers’ Working Group report looking at the future of the House of Lords and its place in a wider constitution. The report was published on 28th May 2014 and was generally well received by contributors from all sides during the 4 hour motion to take note. Lord Dubs, one of the authors, has set out the key conclusions of the working group here but in summary they seek to achieve in the interim a smaller House of Lords, limited to 450 members, ahead of a constitutional convention to decide on the future of the House of Lords and, potentially, other constitutional issues. The report also dealt with other matters such as recommending the final abolition of the remaining hereditary peers’ right to sit (in contradiction to the compromise in 1999 ‘binding in honour’ on those who assented that they should remain until the second and final stage of reform had taken place), ceasing to wear robes during introduction and some procedural reforms. This post, however, shall focus on two significant issues arising from the debate: the prospects for a convention and the division over the means for the reduction in the size of the House.

A constitutional convention

There has been much talk of a constitutional convention in Scotland should the Yes campaign win September’s referendum there (see e.g. Aileen McHarg’s and Katie Boyle’s blog posts) but regardless of the outcome of that referendum the constitutional position of the whole UK, and the House of Lords within it, is open to question following years of piecemeal constitutional reform. With one or two notable exceptions, there was general support among the speakers for the proposal that there should be a convention.

While the report limited the scope of the proposed convention to considering ‘the next steps on further reform of the House of Lords and any consequential impact on the House of Commons and on Parliament as a whole’ (para 3.14), some speakers took a wider approach. Lord Gordon of Strathblane, for example, endorsed the idea but held that the way European legislation was dealt with and the operation of the House of Commons would be higher up the list for consideration by such a body and Lord Norton of Louth, who had previously argued for one before with a different scope, considered that we need one ‘to help us make sense of where we are, and not necessarily to tell us where we should be going—Parliament can decide that once we have a much clearer appreciation of where we are in terms of the structures and relationships that form our constitution’ (at col 952). Only two peers from some 40 peers who spoke, expressed opposition: Lord Stephen questioned whether any convention could come up with any new answers about the Lords and Lord Howarth of Newport thought that the political parties should distance themselves but that the process ‘might valuably be undertaken by academics and think tanks, which could elucidate the issues and offer useful ideas.’ He further stated that a ‘royal commission, or a commission or convention, will get things wrong… [w]hat they recommend will be found not to work’ before going on to note to the shortcomings of the US Constitution and the 1990s Scottish Constitutional Convention (at col 959).

Significantly, both front benches spoke positively of a wider convention. Lord Hunt of King’s Heath, for the Opposition, noted that not ‘all noble Lords are in favour of such a proposal, but we cannot consider Lords reform in isolation from the many other pressing issues that we face in relation to the constitution, not least, as [Lord Maxton] said, in today’s era of new technologies, and also, as the noble Lord, Lord Phillips, said, in view of young people’s disengagement from politics’ (cols. 983-984). For the Government, Lord Wallace of Saltaire went further:

The case for a commission or convention is out there. There was an excellent report by the House of Commons Political and Constitutional Reform Committee last year which suggested that the Government have no view on this issue at present. However, personally and as a Minister, this is a question that we ought to be debating in the last year of this Parliament. I welcome what the noble Lord, Lord Foulkes, and others are doing. It is one that we all need to consider because we need to look at how all of this runs together. (col. 987)

That is not say that a convention will be immediately forthcoming as time is too short to define what is sought before the election, but that the topic of a convention is, to quote Lord Wallace, ‘precisely the sort of thing’ that could usefully be considered in the last year of a fixed-term parliament which could then be taken forward by the next government. A constitutional convention for the UK (or rest of the UK) can thus be seen to be more likely than it has been in the past.

Reducing the size of the House

There was broad agreement that the House of Lords needed to be smaller and, with one exception, that it should be smaller than the House of Commons. The Act passed in the last session (colloquially termed the Norton-Steel-Byles Act) sought to reduce membership through expulsion due to criminal offence, voluntary resignation and removing those who failed to attend any sitting during a session (the first of which is in force now and the latter two due to come into force this summer). The report proposed a more drastic threshold of 60% of sittings in a session (which they curiously refer to as an average (at para 8.11)), unless there are exceptional circumstances, and a compulsory retirement for all those who reached the age of 80 in the preceding session (at paras 8.5-8.6).

To have an arbitrary age limit cut-off is inherently discriminatory – in another context it has been described as ‘the statutory age of senility’ – and the justification is slight. Its proponents describe it as the least worst alternative. However, there was support by a number of peers for an evolution of the process that saw the hereditary peers whittled down (attributed to Billy Bragg by the Joint Committee on the Draft House of Lords Reform Bill and as, for example, written about here). Each Parliament, the parties could determine how many peers each should have (possibly based on the general or other election results, either by each election or through using a rolling average) and then elect or select within themselves which peers should remain. Lord Norton of Louth when preferring such a scheme to an arbitrary age limit noted that it ‘would enable the issue of overall size, as well as party balance, to be addressed effectively’ (col. 952). Lord Haskell appeared to prefer a one-off repeat of the Weatherill hereditary peer reduction followed by a formula allowing new peers to be allocated between the parties and the cross-benches (col 980). The proposal fared less well on the front benches. Lord Hunt of Kings Heath drew an unflattering comparison with the hereditary by-elections (where there are sometimes more candidates than remaining peers to act as electors, particularly with regard to the Labour hereditaries) and considered that the cut-off at the age of 80 was the least worst option (col. 983). Lord Wallace of Saltaire pictured ‘a wonderful series of bloodlettings within each of the two groups’ (seemingly forgetting about the Liberal Democrats and others) but, when challenged by the Earl of Sandwich, acknowledged that it was ‘one way of addressing the question of topping up after the election’ (cols 988-989).

In seeking to dismiss the concept of a modified-Weatherill approach to the question of the numbers of sitting life peers (either as a one-off or occurring each Parliament), the frontbench spokesmen appear to have overlooked a number of issues. Lord Hunt was concerned that a system that sought to replicate the general election results would be a strange basis for a distinct House. However, he fails to take account of a sizeable presence of cross-benchers (fixed in one version of the proposal at 20%) which would automatically render the make-up of the House different from the Commons. Furthermore, a system of rolling averages – to avoid temporary blips in electoral support being reflected in the less democratic, less powerful, more reflective House – could be used if a longer term view was sought or, to reflect the differences in different elections, a formula comprising local and European results instead or as well could be adopted. While such a system to reduce the peers – and in the Norton, if not Haskell formulation, keep the number in regular (and reasonably proportional) check – is derived from the Weatherill reduction of peers, to disparage it based on the hereditary peer by-elections is to ignore the differences in size of much of the electorate (there are, for example, over 200 Labour life peers (and nearly 100 Lib Dems) but they have only four sitting hereditary peers each). What would take place would not be a ‘blood-letting’ in Lord Wallace’s words but a pruning (or re-potting if former peers returned following a change in the political wind) which could take account of the age and past attendance but would do so in the round and not as an arbitrary cut-off. Such a system would allow peers to emulate the now late Lord Wilberforce, who regularly attended over 100 times a year, even when in his mid 90s, if they had valuable contributions to make while allowing others to retire if they so wished or to take a sabbatical and return if there was sufficient support amongst their colleagues. Only if there had been a large number of appointments during a session (which could be prevented by a statutory appointments commission) or there had been a radical change in support would there ever likely be a sizeable change in membership (which would be further reduced by both the option of retirement and the inevitability of death).

There seems to be near universal agreement that the House of Lords’ size needs to be constrained, not least as the risk now looms large of a ballooning house if new appointments are made to reflect changing strength in the Commons looms (as predicted by Robert Hazell & Ben Seyd and Meg Russell) even if there is not unanimity about the actual size. It would, on the precedent of the Weatherill amendment, only take a small change to legislation to bring about a system of indirect election as mooted by Lord Norton of Louth which would retain much of the existing strengths (and membership) of the House and which could act to prevent chamber-hopping (see e.g. Meg Russell’s piece from March) and allow more time for a wider-ranging constitutional convention to take place.

 

James Hand is an Associate Senior Lecturer at the University of Portsmouth

(Suggested citation: J. Hand, ‘Lords response to Labour Peers’ Working Group Report – A Programme for Progress: The future of the House of Lords and its place in wider constitution’ U.K. Const. L. Blog (29th June 2014) (available at http://ukconstitutionallaw.org/)).

 

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