Category Archives: Judicial review

Angela Patrick: Suing the state: judicial competence, restraint and redress in Belhadj

AngelaThe coverage of last week’s Court of Appeal’s decision in Belhadj & Or. v Straw & Ors [2014] EWCA Civ 1394 has thus far generated more political heat than legal light. When a claim involves the suit of named officials and former Ministers for their alleged role in the rendition of a major political figure in the new Libya and his family to face torture under the Gaddafi regime, this is perhaps understandable. In a week where the Government – in the context of this claim – has conceded that it must disclose certain of its policies on surveillance and legal professional privilege, it is unsurprising that the press has had little time to digest the detail of this judgment.

Yet, in overturning the decision of Mr Justice Simon to strike out the major part of the claim, the carefully reasoned Court of Appeal (Lord Dyson MR, Lloyd Jones and Sharp LLJ) judgment raises a number of interesting questions for constitutional law scholars and political commentators alike about the function of domestic courts, the place of international comity in the law and the right of individuals to redress for violations of rights guaranteed in domestic and international law.

Suing the state: the role of domestic judges

The Respondents argued that both state immunity and the foreign act of state doctrine precluded the domestic courts from hearing the case. At first instance, they failed on the former but succeeded on the latter point. The Court of Appeal rejected their arguments on both counts.

State immunity

First, agreeing with Simon J, the Court of Appeal finds that the law of state immunity has no application in this case (see [32] – [50]). In reliance on the language of the UN Convention on Jurisdictional Immunities of States and their Property (a Convention not yet in force), and a broad interpretation of existing jurisprudence, the Respondents argued for an interpretation of the domestic law of state immunity which would prevent the court from exercising jurisdiction in any case which might affect the broad “rights” or “interests” of a third state or where the decision of the court would necessarily involve “findings of illegality in respect of acts on the part of officials of foreign states for which they could claim immunity had they been sued directly” [37].   In this case, the Appellants’ claim related to their treatment in China, Thailand and Malaysia and in Libya, the actions of those Governments and their agents and the activities of the United States. The Court of Appeal concludes that this argument on indirect impleading would be an “unprecedented extension” of the law on state immunity [39], which “lacks any foundation in law” [49].

Act of state doctrine

The second issue – the scope and application of the ‘foreign act of state doctrine’ is at the heart of this case. Simon J expressed his own discomfort in striking out the claim on this basis:

residual concern…that what appears to be a potentially well-founded claim that the UK authorities were directly implicated in the extraordinary rendition of the claimants, will not be determined in any domestic court; and that Parliamentary oversight and criminal investigations are not adequate substitutes for access to and a decision by, the Court (at [51]).

The Court of Appeal expressly shares this unease. It concludes that while the doctrine is engaged, significant limitations apply to prevent a strike out. The court confirms that the doctrine is subject to a geographical limitation, generally applicable only to the activities of a third state within its jurisdiction. So, the activities or interests of the US could not affect the role of the domestic court in this case. In any event, a broad policy exception to the rule operates in claims with its foundation in international human rights law.

In light of the stark conclusion of the lower court that an inquiry into the contested evidence in the case would be damaging to the national interest (see [26]), close examination of the Court of Appeal decision is warranted.

a)  The nature of “act of state” doctrine:  Long-standing arguments about the impact of the act of state doctrine are best understood in context. Although used to preclude the jurisdiction of domestic judges, the doctrine is not a creature of statute, nor required by the international legal framework. It has evolved in parallel and distinct from the law on state immunity. As a creature of Anglo-American common law – finding no direct parallel in civil law countries – its scope and the rationale for its existence has varied across the years and its application in either the US or the UK. Its foundation in this jurisdiction is found in Buttes Gas and Oil Co v Hammer (Nos 2 and 3) [1982] AC 888, a case where the courts refused to exercise jurisdiction over a claim involving questions about the lawfulness of an international settlement agreed by four sovereign states. In the UK, the doctrine has been relied upon in such varied circumstances as the seizure of aircraft (Kuwait Airways v Iraqi Airways (Nos 4 and 5) [2002] 2 AC 883) and the determination of claims in connection with intellectual property (Lucasfilm v Ainsworth [2012] 1 AC 208).

The Court of Appeal in Belhadj conducts a considered review of the historical development of the doctrine in its analysis of its application to this claim. It draws a key distinction between the narrow class of claims which may bar a court’s jurisdiction, based on judicial competence (as in Buttes) and the wider rule of law, based on judicial restraint “which may result in a refusal by the English courts to permit the vindication of rights in certain situations in which the validity or legality of certain acts of foreign states and their agents are directly challenged” [68] (recognised in Yukos v OSJC Rosneft Oil (No. 2) [2014] QB 458) .   It rejects the Claimants’ suggestion that the doctrine must be confined to cases engaging questions of competency ([Shergill v Khaira [2014] UKSC 33 (at [41] – [43]).

The foundation of the “act of state” doctrine lies in the sovereign equality of states and the principle of international comity [67]. Thus the Court of Appeal finds that restraint may yet be required in cases where there is no constitutional question about the competence of the court. However, following, Yukos, the Court of Appeal holds that the modern incarnation of the principle must start from its limits, with:

the doctrine…defined, like a silhouette, by its limitations, rather than to regard it as occupying the whole ground save as to the extent that an exception can be imposed [54].

The Court accepted that there was a limitation applicable when the facts of a case would not require the validity of the acts of a foreign sovereign state to be called into question (the Kirkpatrick limitation). However, the Court rejects the Claimants’ contention that this limitation would apply in this claim [76]. The two key limitations in this case were grounded in human rights and territoriality.

b)   The human rights ‘limitation’: The Court recognises a broad public policy limitation to the common law doctrine “where there is a violation of international law or a grave infringement of fundamental human rights” [81] (see also Kuwait Corpn v. Iraqi Airways (Nos 4 and 5) [2002] 2 AC 883). Considering the treatment of this limitation in existing jurisprudence – including in Yukos and Kuwait Airways – the Court concludes that this policy limitation must also apply even when the court must undertake some degree of legal or factual investigation in order to determine whether a violation of international law or a grave infringement of fundamental rights has occurred [89]. The Court explained:

 i.  “Judges in this jurisdiction are now frequently required to determine and rule on such conduct and, in particular, whether it is compliant with international law and international standards of human rights” [91]. Such assessments are conducted in asylum and extradition cases, and in the consideration of whether evidence has been obtained through torture and in cases where it is alleged a person has unlawfully been brought before the court from another jurisdiction. The Courts have acknowledged in commercial cases that the Court is entirely well placed to consider a claim despite reaching conclusions on the acts of state officials (see Lucasfilm v Ainsworth [2012] 1 AC 208).

 ii.  “When it is necessary to do so for the vindication of justiciable rights, courts in this jurisdiction will be under an obligation to decide issues of public international law” [92], citing Abbasi v Secretary of State for Foreign Affairs [2002] EWCA Civ 1598 and again, Shergill v Khaira [2014] UKSC 33.

iii.  Comparative case law supports this conclusion. In Habib v Commonwealth of Australia [2010] FCAFC 12, although the constitutional context was different, the human rights limitation had been determinative. The Court of Appeal reasoned: “In this way, a senior court in another common law jurisdiction has concluded, on facts which bear a striking resemblance to those in the present case, that the limitation of act of state doctrine may be applied notwithstanding the need to investigate the conduct and to rule on the legality of the conduct of foreign states [102].

iv. The Court of Appeal gave consideration of the evidence of the Respondents that this issue would be damaging to the UK’s relationship with the US (and to a lesser extent, with the other countries involved in the claim) and harmful to the national interest. The Court notes that the evolution of the doctrine in the US has led the courts there to afford a significant degree of weight – and deference – to the opinion of the executive [112]. It concludes however: “while an approach based on deference to executive suggestion as to the likely consequences for foreign relations of the exercise of jurisdiction, capable of varying according to the issues raised or the foreign state concerned, may well be suited to the very different constitutional arrangements in the US, it has played no part in the development of the act of state doctrine in this jurisdiction” [113].

In this context, the Court is keen to stress that while evidence of damage to the national interest is relevant, national embarrassment would not be a proper justification for restricting the jurisdiction of the domestic courts [111] (see also [66]).

 v.  There were strong policy justifications for the court to hear this case:

a.  The increasing role of international law in the protection of the individual and the recognition of that system as one which includes the regulation of human rights by international law, a system of which individuals are rightly considered to be subjects. A corresponding shift in international public policy has taken place [115]

b. The allegations in this case were of particularly grave human rights violation:So far as unlawful rendition is concerned, this too must occupy a position high in the scale of grave violations of human rights and international law, involving as it does arbitrary deprivation of liberty and enforced disappearance” (the court having already considered the nature of the international prohibition on torture) [116]

c. The respondents in this case were officials of the UK, not otherwise entitled to immunity: there is a compelling public interest in the investigation by the English courts of these very grave allegations”. [117]

d. The applicable principles of both international law and English law to be applied are well established [118].

e. “[U]nless the English courts are able to exercise jurisdiction in this case, these very grave allegations against the executive will never be subjected to judicial investigation…As a result, these very grave allegations would go uninvestigated and the appellants would be left without any legal recourse or remedy” [119].

 vi. The case should be heard: “despite the risk of displeasing our allies or offending other states, and even the risk of consequences of varying severity which it is said are likely to follow, cannot justify our declining jurisdiction on ground of act of state over what is a properly justiciable claim” [120].

 c) The ‘territorial’ limitation: The Court emphasised that the strike out in Khan v Secretary of State for Foreign and Commonwealth Affairs [2014] EWCA Civ 24 could not assist the Respondents. The territorial limitation had not been considered in that case [132].

Although it took a definitive view on the application of the territorial principle in this case, the Court of Appeal expressed some doubt as to whether the limitation might apply in cases which might more closely engage questions of judicial competence, for example, in connection with the transactions between states:

Indeed in the case of such activities it may often be difficult to locate with precision where different elements of the transactions took place. However, in the present case we are concerned with allegations relating to the way in which officials of one state have acted towards nationals of other states and therefore with the narrower principle of act of state. [131]

d) Article 6 ECHR:   The Court of Appeal considers the relevance of the doctrine for the purposes of securing the right of access to a fair hearing guaranteed by Article 6 ECHR. (The Court also considered Article 14 UNCAT, but did not consider it necessary to reach any firm conclusion [124] – [126].)

While its primary conclusions are grounded in the common law, the Court of Appeal thus considers that the same conclusion would be required under the Human Rights Act 1998 and the ECHR. The application of the doctrine, largely confined to Anglo-American jurisprudence, is not required by international law ([51]). Thus, Jones v UK and earlier domestic case law on state immunity is distinguished. The Court of Appeal considers that while the act of state doctrine may be applied consistently with Article 6 ECHR, in this case, its application would be disproportionate and would undermine the Appellants’ right to access the court guaranteed by the Convention [123].   Thus, as in its common law analysis, for Convention purposes, the doctrine of act of state will remain a live point for argument in these cases, with its scope, relevance and application determined on a case by case basis.

Comment

The Respondents have been granted permission to appeal the application of the act of state doctrine. A few points of note can be drawn from the Court of Appeal’s analysis.

The evidence before the Court on the risk posed by the litigation to the UK’s relationship with the United States and to our security was considered at some length. The arguments raised are very familiar to those who followed the passage of the Justice and Security Act 2013. The introduction of closed material procedures (“CMP”) into ordinary civil litigation was justified to Parliament by Government as a means to ensure that litigation of precisely this kind might proceed. The proper scope and function of CMP even under the Act remains open to argument and it is very likely that should this case proceed to trial, the Respondents may seek to rely on the Act. However, the strike-out application in this case and the albeit limited engagement of the “act of state” doctrine serves as a reminder that CMP is not the only tool in the Government’s litigation strategy in dealing with cases which raise concerns about national security or the wider public interests of the UK. Despite the case made for the extension of CMP, a pick-and-mix approach to strike-out, public interest immunity (“PII”) and CMP is likely to prevail, at least as and until the scope of the law is clarified.

An outstanding question is whether the availability of alternative means to address concerns about national interest – such as PII or CMP – may affect the courts’ consideration of the weight of evidence presented to justify an argument on strike-out based on an “act of state” doctrine based on a public policy argument for restraint, rather than a constitutional question of competence. While not considered expressly by the Court of Appeal, its analysis, and its approach to deference suggest that this should be a relevant issue for consideration by any judge considering a claim for strike-out of any otherwise valid claim [see 211].

The Court of Appeal stresses that the Supreme Court in Shergill v Khaira [2014] UKSC 33 (at [41] – [43]) did not intend to limit “act of state” doctrine to cases of non-justiciability on the grounds of competence [67].   Yet, the Court of Appeal in this case does appear to draw distinctions in the law on “act of state” between cases based on competence and restraint. It is clear – particularly in its treatment of territoriality – it envisages that the consideration of the limitations applied may be different where questions of competence may arise.   The Court of Appeal’s analysis places the Yukos “silhouette” approach on a clearer foundation. If the English doctrine of “act of state” is based on judicial restraint rather than constitutional competence, the case for the application of the doctrine should be subject to close scrutiny and its limitations drawn broadly.   Yet, if this approach stands, argument on the boundaries of competence and restraint is likely in future cases, and on the precise scope of the limitations in play.

The practical implications of the Respondents’ arguments in this case – for the extension of protection for the state under both state immunity and “act of state” doctrine – would be to shield individual states and their institutions from scrutiny in many cases where they act unlawfully but in unison or in parallel with other states, circumscribing the ability of individuals to secure redress.

The expansion of immunities to limit the right of individuals to a remedy for violations of rights acknowledged by the international community, as is the case with redress in cases of torture, must begin as an international dialogue.   The expansion of state immunity – or the creation of de facto common law immunities – by way of the unilateral development of domestic rules of jurisdiction or deference would undermine the long-term effectiveness not only of the international framework for the protection of human rights but the agreed minimum standards for state immunity.

Angela Patrick is the Director of Human Rights Policy at JUSTICE. JUSTICE, together with the International Commission of Jurists, REDRESS and Amnesty International intervened in Belhadj v Straw & Ors by way of written submissions. A copy of the submission is available, here.

 

Suggested citation: A. Patrick, ‘Suing the state: judicial competence, restraint and redress in Belhadj(7th November 2014) (available at http://ukconstitutionallaw.org).

 

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Adam Perry: The Source of the Crown’s General Administrative Powers

AdamThe Crown has statutory and prerogative powers, and many people have said it has other powers as well. The Supreme Court clearly agreed for the first time in 2013. In R (New London College) v Secretary of State for the Home Department, Lord Sumption said for the majority: ‘the Crown possesses some general administrative powers to carry on the ordinary business of government which are not exercises of the royal prerogative and do not require statutory authority’ (at [28]). This remark was obiter, but it is in keeping with the trend of authority over the past decade. (Mark Elliott, Paul Daly, and Janet McLean blogged about New London College earlier.)

The Crown’s ‘general administrative powers’, as Lord Sumption calls them, and as I shall call them here, are unglamorous but important. They range from the power to form contracts to the power to convey property, and include powers to circulate written material, consult with officials, give gifts, and create policies. Much of the day-to-day business of government falls under the Crown’s general administrative powers.

Their importance makes it worth knowing what gives the Crown its general administrative powers. How does the Crown come by these powers? What is their basis or source? Two answers have been popular, but I have doubts about both of them.

Harris’s Account

Bruce Harris has done more than anyone else to bring attention to the Crown’s general administrative powers. Harris takes as his starting point the principle set out by Sir Robert Megarry in Malone v Metropolitan Police Commissioner that everyone is legally permitted to do what is not legally prohibited. Harris calls this the ‘principle of legality’. He thinks it gives everyone, including the Crown, a ‘residual liberty’ to do what is not prohibited. The Crown’s residual liberty is a ‘third source’ of power or (the word he prefers) ‘authority’, in addition to statute and custom. This third source is the source of the Crown’s general administrative powers.

I find Harris’s argument fascinating, but I am not convinced by it. It helps to make the steps of his argument clear. This is what Sir Robert Megarry says in Malone:

  1. The Crown is permitted to do what the Crown is not prohibited from doing.

Harris ultimately says that the Crown has a power to do what the Crown is not prohibited from doing. Note the shift from ‘is permitted’ to ‘has a power’. Permissions are very different from powers, so what Harris says does not follow directly from 1. I think Harris must be assuming this:

  1. The Crown has a power to do what the Crown is permitted to do.

Now Harris’s conclusion follows:

  1. The Crown has a power to do what the Crown is not prohibited from doing.

It seems to me that there are several problems with this argument. But the most important is that 2 is false. The Crown does not have a power to do whatever it is permitted to do. Think of some of the things the Crown is not prohibited from doing: making a will for you, solving the Middle East crisis, repealing all the laws of France, giving itself the power to repeal all the laws of France, and on and on. It follows from 1 that the Crown is permitted to do all these things. Were 2 true, it would follow that the Crown has the powers necessary to do all these things. But the Crown has no such powers, so 2 is wrong. In short, what the Crown is permitted to do is one thing, what it has a power to do is another.

This is a quick objection, of course. There are subtleties in Harris’s account that I have left out. Given the difference between permissions and powers, I can’t see how Malone or the ‘principle of legality’ could be the right starting point. But I am keen to know what others think.

The Common Law Account

Courts in this country have favoured a different account of the source of the Crown’s general administrative powers. In R v Secretary of State for Health, ex p C, the Court of Appeal claimed that the common law gives the Crown the same powers as a natural person. In Shrewsbury & Atcham Borough Council v The Secretary of State for Communities and Local Government, the Court of Appeal followed C, which it took to have established that the Crown has common law powers to do ‘anything which could be done by a natural person’ (at [44]). (The Supreme Court has also on occasion referred to the Crown’s ‘common law powers’.)

It is striking that the Court of Appeal did not offer any real argument for the claim that the common law is the source of the Crown’s general administrative powers. The closest it came was citing a passage from Halsbury’s Laws of England.

There is an obvious argument for that claim. It proceeds by process of elimination: there are only three legal sources – statute, custom, and common law; the source of the Crown’s general administrative powers is not statute or custom; so, their source must be the common law. But note the implicit assumption that the source of the Crown’s general administrative powers is a legal source.

That assumption seems half right and half wrong to me. It is half right because (with some possible exceptions not relevant here) legal powers have legal sources, and some of the Crown’s general administrative powers are legal powers. This includes its powers to form contracts, give gifts, and convey property. These are legal powers because, in essence, their use affects legal duties and rights because that is what the Crown can be taken to intend by using them. The common law is indeed the source of these powers.

The assumption is half wrong because some of the Crown’s general administrative powers are not legal powers. This includes its powers to circulate written material, consult with officials, and create policies. The relationship between non-legal powers and legal sources is tricky, but the three powers I just mentioned seem clearly not to have any legal source, including the common law. I cannot argue for that claim here, but if you are sceptical, ask: what change in the common law would make it impossible for the Crown to circulate a list or consult with officials?

So the common law account identifies the source of some but far from all of the Crown’s general administrative powers.

Those are the two existing accounts of the source of the Crown’s general administrative powers. There is a need for a new account, and in a separate working paper, I take some steps towards one. There are many other interesting questions about the Crown’s general administrative powers. What is the extent of the Crown’s general administrative powers? What distinguishes them from the Crown’s prerogative powers? How should courts treat exercises of general administrative powers? Is it consistent with the rule of law for the Crown to rule using powers not conferred by law? In my paper I try to answer some of these questions, too.

Adam Perry is Lecturer in Law at Queen Marys University of London.

 

Suggested citation: A. Perry ‘The Source of the Crown’s General Administrative Powers’ UK Const. L. Blog (25th November 2014) (available at http://ukconstitutionallaw.org)

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Carol Harlow: Judging Parliament: the Jobseekers case

charlowIn July this year, Mrs Justice Lang sitting in the High Court gave leave for judicial review and, in rolled up proceedings, issued a declaration that the Jobseekers (Back to Work Schemes) Act 2013 (the 2013 Act) was incompatible with Article 6(1) of the ECHR (Reilly (No 2) and Hewstone v Secretary of State for Work and Pensions [2014] EWHC 2182). Article 6(1) as interpreted in the Strasbourg jurisprudence constrains states from legislating in such a manner as to affect the judicial determination of a dispute involving the State or private parties unless the state can show ‘compelling grounds of public interest’ for the legislation and the claimants argued that the 2013 Act amounted to an unjustified intervention in their ongoing litigation with the Government, with the object of determining the litigation in its favour by retrospectively validating its unlawful acts. The aim of this short comment is to consider the judgment in the framework of the Westminster system of parliamentary governance and question whether the principle it embodies is a good fit with this constitutional model.

Public Interest Litigation

Caitlin Reilly, an unemployed graduate in geology who was working as a volunteer in a museum with a view to a future career, started the ball rolling when, following a direction from her Jobcentre personal adviser to join an unpaid training scheme at a retail outlet, an experience she described as ‘Orwellian’, she applied for judicial review to challenge the placement as a form of ‘forced labour’ contrary to ECHR Article 4. James Wilson, joined in this action, was an unemployed HGV driver ‘sanctioned’ by loss of benefit for refusing to participate in another such scheme. In Reilly (No1) (R(Reilly) and another v Work and Pensions Secretary [2012] EWHC 2292 (Admin)) the two claimants argued that the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme (ESE)) Regulations 2011 (the 2011 Regulations) were ultra vires (i) because they failed to comply with the parent Act by providing an adequate description of the ESE schemes or the circumstances in which an individual could be required to participate; (ii) that no published policy describing the schemes had ever been provided; and (iii) that the requirements as to notice had not been complied with. In Reilly’s case his was not contested.

The 2011 Regulations were made in terms of section 17 of the Jobseeker’s Act 1995, inserted by the Welfare Reform Act 2009, which authorised the making of regulations ‘for or in connection with imposing a requirement on jobseeker’s allowance claimants to participate in schemes that are designed to assist them to obtain employment’. The Act required the regulations ‘to set out the circumstances in which jobseeker’s allowance claimants are required to participate in schemes under this section’ and provided that benefit payments could be ‘withheld or reduced’ where a claimant failed to comply with a direction and was unable to show good cause for the failure. It is worthy of note that these Regulations had attracted the attention of the House of Lords Select Committee on the Merits of Statutory Instruments, which drew the attention of the House to the fact that the Explanatory Memorandum and supporting information were insufficiently detailed, rendering parliamentary scrutiny difficult, and that the Regulations ‘interpret the directions very broadly so that future changes to the Scheme could be made administratively without any reference to Parliament’ (HL 137 (2011-12) at [10], [11]). To paraphrase, the Regulations were imprecise and badly drafted; they lent themselves to misconstruction and misuse.

The claimants were genuine litigants with interests to protect, as was Daniel Hewstone, who sought to recover the award by a social security tribunal of a refund of six months’ benefits of which he had been deprived after complaining about an ESE scheme. But they were at the same time convenient ‘front-persons’ for litigation run on their behalf by ‘Public Interest Lawyers’, a firm of solicitors whose website claims credit for ‘giving the nation a voice to speak out and challenge the abuse of power by those in public office who would otherwise disregard the need for the Rule of Law’. Everyone knew from the start that this was public interest litigation likely to end in Strasbourg. The Government unsuccessfully contested the right to apply for judicial review on the grounds that the alternative remedies of the in-house Independent Case Examiner and First-tier Tribunal had not been exhausted (a point to be noted perhaps in light of the Criminal Justice and Courts Bill currently before the House of Lords). Foskett J was ‘made aware that this case may have a wider interest than merely for the result in the two individual cases’. The DWP attempted to stifle an appeal by ‘buying off the litigants at the door of the court’ but the Court of Appeal agreed that it was appropriate to proceed ‘because of the important issues which arise, in particular as to the lawfulness of the 2011 Regulations’. Later the Supreme Court proceeded to hear an appeal made hypothetical by validatory legislation because, ‘although it was rather unattractive for the executive to be taking up court time and public money to establish that a regulation is valid, when it has already taken up Parliamentary time to enact legislation which retrospectively validates the regulation’, the issue could be ‘of some significance to the drafting of regulations generally’. The Court knew too that the validatory legislation was already under attack in a new application for judicial review ([2013] UKSC 68 at [40]-[41]).

Why is this important? It reveals the litigation as a step in a struggle to gain through the courts advantages not available in the political system (C. Harlow and R. Rawlings Pressure Through Law (London: Routledge, 1992). All involved knew what the game was and how it would be played There is a long tradition of dealing with such problems by retrospective regulation or legislation; indeed, the tactic was at one time used so frequently as to make it the standard response to a successful test case in the field of social security (T Prosser, Test Cases for the Poor (Child Poverty Action Group, 1983; R v Greater Birmingham Appeal Tribunal ex p Simper [1974] QB 543; R v Barnsley SBAT ex p Atkinson [1977] 1 WLR 917). The cost of meeting claims from those who had been ‘sanctioned’ and whose claims were pending in tribunals or had been ‘stockpiled’ was estimated by the Department to be in the region of £130 million and the sums involved, though disputed, were substantial enough as Lang J recognised, ‘that a government faced with the prospect of substantial repayments would consider it in the public interest not to pay them’ (see Reilly (No 2) at [103]-[107]). Thus her finding of Lang J (Reilly(No 2) at [90]) that Ms Reilly could not have foreseen the response was, if strictly true, in view of her advisers more than a little disingenuous.

Retrospective legislation and the rule of law

This does not mean, of course, that the tactic was justified. Retrospective legislation designed to deprive litigants of the fruits of their victory in cases brought against the government has always been controversial, while sanctions imposed in respect of action lawful when undertaken are a clear violation of the principle of legality. The latter point was taken up by the Lords Constitution Committee, which drew the Jobseekers (Back to Work Schemes) Bill to the attention of the House on the grounds that it infringed ‘the cardinal rule of law principle that individuals may be punished or penalised only for contravening what was at the time a valid legal requirement’ (HL 155, 2013 at [11]). Significantly, the Government made no adequate response to this important objection. Its lame argument that non-compliers with ESE directions would expect to be sanctioned and would have regulated their affairs accordingly (See Exchange of letters below) does scant justice to such an important constitutional principle.

In terms of the domestic constitution, the Bill raised a second important question: Was the ‘fast track procedure’ under which it was presented proper and appropriate? Again, the Constitution Committee thought not. Recapitulating an earlier report, it declared that fast track measures must be ‘a proportionate, justified and appropriate response to the matter in hand’ and should not jeopardise fundamental constitutional rights and principles. Moreover, it was essential to ensure the technical quality of all legislation and provide time for effective parliamentary scrutiny (Fast-track Legislation: Constitutional Implications and Safeguards,  HL 116-I, 2008/09 at [16] and [22]). Finally, in terms of the ECHR, the Bill raised a further problem. The Government had departed from the standard formula used in social security cases contained in section 27 of the Social Security Act 1998 and deemed to be Convention-compliant. This formulation exempts from retrospectivity (i) those claimants who bring the test case plus (ii) all those whose appeals to tribunals or courts are pending and (iii) those whose claims are stockpiled at the date of the test case and this was the course implicitly followed when the 2011 Regulations were revoked and replaced by the Jobseeker’s Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013, which operated prospectively and came into effect on the date when the Court of Appeal delivered a judgment ruling the 2011 regulations ultra vires.

So why did the Government take the dangerous path of fast track, retrospective legislation? The reason was unashamedly spelled out in the Explanatory Notes to the Bill. It was designed to retrospectively validate all notices to claimants served under the 2011 Regulations informing them of requirements as to participation and about consequences of failing to meet requirements. It was necessitated by an ‘adverse Court of Appeal judgment’, the effect of which would be that the Government would incur a liability of up to an estimated £130 million in repaying claimants who had been sanctioned under the programmes and in being unable to impose sanctions retrospectively in stockpiled cases. In the Commons, the Minister added that it was necessary ‘to press ahead with emergency legislation’ to guard against losing a further appeal that the Government was making. A section 19 statement was duly made that the Bill was considered compatible with the ECHR. If it were otherwise, the statement added, there were ‘compelling public interest reasons’ for the legislation ‘given the significant cost to the public purse of repaying previously sanctioned benefits, and as the aim of the proposed legislation is intended to restore the law to that which Parliament intended’ (HC Deb, vol 560, from col 822, 19 March 2013).

The Bill did not escape parliamentary censure. There was a lively debate in both Houses. In the Commons, the Bill was called an ‘abuse of our emergency procedures’ in order to fix the consequences of losing an appeal and a shocking disrespect for the courts and justice system (Caroline Lucas, HC Deb, vol 560, col 826, 19 March 2013). Yet it passed by 263 votes to 52. It had a harder time in the Lords, where the Opposition tabled an amendment deploring the ‘Government’s incompetence’, which had necessitated the deplorable Bill. In the debate, Lord Pannick, a distinguished human rights lawyer and member of the Constitution Committee, called it ‘an abuse of power that brings no credit whatever on this Government’ ( HL Deb, vol 744, cols 739-742; and see similarly Lord Bach at col 745). Nonetheless the Bill received the Royal Assent on 26 March and duly found its place on the statute book.

Discussion

We have returned by this circuitous route to a point where the decision of Lang J in (Reilly (No 2) can be more closely considered. The first point to make is that the judgment is based closely on the requirements of ECHR Article 6(1) and the application of ECtHR jurisprudence. There is a contrast here with the Supreme Court judgment in Reilly(No 1), where the Court chose – in line with a noticeable recent trend – to rely on common law principles. Discussing notice, the Supreme Court positioned itself neither on the Convention nor on statutory requirements but on the general common law principle of fairness, which required a claimant to have access to such information about the scheme as was needed in order to make ‘informed and meaningful representations’ to the decision-maker before a decision is taken (R(Reilly and another v Secretary of State for Work and Pensions [2013] UKSC 68 at [65-6]). Lang J, on the other hand, conflated the two systems, remarking that, although the principle ‘emanated from decisions of the ECtHR’ it also ‘accurately reflect[ed] fundamental principles of the UK’s unwritten constitution’, namely the rule of law principle expressly recognised in section 1 of the Constitutional Reform Act 2005. She summarised the constitutional structure as being that

Parliament and the Executive recognise and respect the separation of powers and abide by the principle of legality. Although the Crown in Parliament is the sovereign legislative power, the Courts have the constitutional role of determining and enforcing legality. Thus, Parliament’s undoubted power to legislate to overrule the effect of court judgments generally ought not to take the form of retrospective legislation designed to favour the Executive in ongoing litigation in the courts brought against it by one of its citizens, unless there are compelling reasons to do so. Otherwise it is likely to offend a citizen’s sense of fair play. ([2014] EWHC 2182 at [82])

This formal separation of powers analysis – likely to recommend itself to the naturally court-oriented ECtHR (See D Kosar, ‘Policing Separation of Powers: A New Role for the European Court of Human Rights?’ (2012) European Constitutional Law Rev 33; M Lasser, Judicial Transformations, The Rights Revolution in the Courts of Europe (Oxford University Press, 2009)) – sits less than comfortably with a system of governance based firmly on the principle of parliamentary sovereignty in which executive and legislature are closely intertwined. It pushes the domestic courts to act as the judge of legislative reasoning under the guise of determining and enforcing legality – a step on the road perhaps to ‘evidence-based legislation’. The Strasbourg jurisprudence also requires that ‘any reasons adduced to justify such measures be treated with the greatest possible degree of circumspection’ (National & Provincial Building Society v. UK (1998) 25 EHRR 127 at [112]). Equating circumspection with suspicion, Lang J read the requirement as a signal for anxious scrutiny not only of documents before her but also of the parliamentary proceedings. She raked through these with a tooth-comb, referring to a number of ‘misconceptions’ and ‘inaccuracies’. Parliament had failed to grapple with the Art. 6(1) issues, probably because of the section 19 statement to the effect that the Bill was compatible with the ECHR. This is pure surmise. The statement was ‘unsatisfactory’, first because it did not set out the relevant test to be applied by Parliament and so did not explain that Parliament was being asked to justify a departure from the legal norm, which would only be lawful if made for compelling reasons in the public interest; secondly, because it asserted that the legislation was designed to ‘close a loophole’ in order to give effect to the original intention of Parliament, which was incorrect.

This forceful approach is out-of-line with domestic case law, in which circumspection is a synonym for guardedness and care. Light touch review of parliamentary procedure is the norm. Foskett J in Reilly(No 1), for example, cited at length from a Report of The House of Lords Select Committee on the Merits of Statutory Instruments but concluded that it was of no direct relevance to his task; it was his duty to form his own view of the situation on the basis of the arguments before him and ‘a relatively narrow analysis of the wording’ of the 2011 Regulations in relation to the wording of the parent Act ([2012] EWHC 2292 (Admin) [2012] at [44-49]). In Animal Defenders International where the compliance of a statutory ban on political advertising with ECHR Article 10 was in issue, Lord Bingham outlined the parliamentary stages of the Communications Bill in some detail. He warned, however, that ‘the judgment of Parliament on such an issue should not be lightly overridden. It was ‘reasonable to expect that our democratically-elected politicians will be peculiarly sensitive to the measures necessary to safeguard the integrity of our democracy. It cannot be supposed that others, including judges, will be more so’ (R (Animal Defenders International) v Secretary of State for Culture, Media, and Sport [2008] UKHL 15 at [33]). More recently, when, in conformity with Court of Justice jurisprudence, the compliance of hybrid bill procedure with an EU Directive was under consideration, the Supreme Court agreed unanimously with Lord Reed that it was required to confirm that there has been a substantive legislative process and that the appropriate information was made available to the members of the legislature but was not asked:

to review the adequacy of the legislature’s consideration of that information, for example by assessing the quality of the debate and examining the extent to which members participated in it. These are not matters which are apt for judicial supervision. Nor is there anything to suggest the inevitable corollary: that national courts should strike down legislation if they conclude that the legislature’s consideration of the information was inadequate (R (HS2 Action Alliance Limited) v Transport Secretary [2014] UKSC 3 at [116]) .

In the different framework of the Human Rights Act, Lang J was empowered only to grant a declaration of invalidity. In other respects, this is effectively what did.

We should not infer from this that Government is not accountable but only that, under the domestic constitution, rights and remedies are primarily claimable in the political process (D Nicol, ‘Law and Politics after the Human Rights Act’ [2006] PL 722). To put this differently, rightly or wrongly, it is elected governments and parliaments and not judges who decide what is in the public interest and how public funds should be spent. This does not allow Parliament to abandon its responsibility for human rights protection or reduce its scrutiny of suspect texts – very much the reverse! The dog that did not bark on this occasion was the Joint Committee on Human Rights. Having failed to scrutinise the text of a Bill with obvious human rights implications, it protested after the horse had bolted that it had been prevented by the fast track procedure from carrying out its customary scrutinising functions (Exchange of letters between the JCHR Chair (16 April 2013) and the Minister (7 May 2013), published on the JCHR website). The Bill had its first reading on 14 March and completed its later stages on March 19. Surely a little fast track procedure was incumbent on the JCHR?

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

Suggested citation: C. Harlow, ‘Judging Parliament: the Jobseekers case’ UK Const. L. Blog (3rd October 2014) (available at http://ukconstitutionallaw.org).

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Robert Thomas: Administrative Justice, Better Decisions, and Organisational Learning

thomasEvery year, government takes millions of decisions on matters such as individuals’ entitlement to social security, their immigration status, and tax liability. Often, people can challenge negative decisions to a tribunal or lodge a complaint. This is the wide and variegated field known as administrative justice, that area of the legal system which most engages people, but which is often overlooked (there are more hearings before administrative tribunals than double the combined number of civil and criminal justice hearings/trials). Hence the establishment of the UK Administrative Justice Institute.

For many years, there have been significant and pervasive concerns about the quality of initial administrative decisions. Poor initial decision-making means unnecessary appeals and challenges, increased costs and time, and stress for the individuals involved. The “right first time” agenda has been advanced as a solution to this problem. The argument goes as follows. If government could make better initial decisions, then this would reduce the volume of appeals, reduce costs, and be less stressful for individuals who. In this blog, I explore the issue of the quality of administrative decision-making and suggest some possible solutions. My argument, developed in more detail in a forthcoming paper, is that government departments need to engage better organisational learning in order to raise decision-making standards.

The standard of administrative decision-making

People often have to engage with government as part of their day to day life. If someone wants a benefit, or an immigration status, to know what amount of tax they need to pay, temporary accommodation because of homelessness, or which school her child will attend, then dealing with a government agency is inevitable. What is the quality of the decisions produced by government departments and other agencies? It is impossible to know for certain because of the lack of system-wide data, but consider the follow. According to the Ministry of Justice’s tribunal statistics, in 2013-14, some 308,033 appeals against the refusal of Employment and Support Allowance by the Department for Work and Pensions were decided by the First-tier Tribunal (Social Entitlement Chamber) of which 44 per cent were allowed. The appeals cost £69.9 million. The appeals took an average of 25 weeks – nearly half a year – to be heard and decided. In the same year, the First-tier Tribunal (Immigration and Asylum Chamber) determined 67,449 immigration appeals of which 44 per cent were allowed. The average time to determine an immigration appeal was 28 weeks. In special educational needs cases, some 84 per cent of appeals are allowed (albeit that many appeals are conceded or withdrawn before they proceed to a tribunal). These success rates raise questions about the quality of initial decisions.

Such statistics can be supplemented by other evidence. In both the social security and immigration contexts, official reports have commented that the overall quality of decision-making leaves considerable room for improvement. In 2012, the Commons Public Administration Select Committee noted that government should aim to produce decisions which are right first time and command a high degree of confidence: “The scale of the injustice and the cost to the taxpayer caused by poor decision-making are wholly unacceptable.”

Bear in mind that tribunals only ever see those decisions where the individuals concerned appeal. But many people do not appeal for a number of reasons unrelated to the quality of the initial decision. They may lack self-confidence or be unable to access advice. What is the quality of all those initial decisions that are not challenged? It is impossible to know for certain, but there is reason to suppose that the quality of unappealed decisions is of variable quality.

It is important not to assume a simple correlation between appeals and initial decisions whereby the proportion of successful appeal is a clear indicator of the quality of initial decisions. Appeals can be allowed because new evidence is available, or because the tribunal takes a different view of the same evidence. Nonetheless, the standard of decision-making is often inadequate and could be improved. For instance, if appeals are regularly being allowed because new evidence is being supplied on appeal, then shouldn’t the department review its decision-making procedures to find out how such evidence could be captured through the administrative process rather than on appeal? The same point applies if a department and a tribunal are adopting significant differences of approach in how they handle particular appeals – for instance, if the Home Office is regularly refusing asylum claims lodged by nationals from a particular country and the First-tier Tribunal is allowing them. In such circumstances, the department should seek to learn from the tribunal – or, at the very minimum, exchange views with the tribunal to uncover which factors are driving the differential approaches.

Poor decision-making arises for a variety of different reasons, such as the skills and training of initial decision-makers and the environment in which they work. Decision-makers may be under pressure to make decisions quickly or lack proper guidance. Sometimes, the ‘culture’ of decision-making may exert a negative influence. For instance, it has long been argued that immigration decision-making is informed by a culture of disbelief. Resorting to appeal systems to correct poor initial decisions is costly, inefficient, and a source of stress and hardship for claimants. How can government do better?

Organisational learning

To improve the quality of public institutions and their decision making, government agencies need to become learning organisations that seek to improve their performance by learning from their mistakes. Organisational learning is an area of knowledge within the field of organisation theory that studies models and theories about the way an organisation learns and adapts. In the public sector context, organisational learning has been defined as “the ability of an organisation to demonstrate that it can learn collectively by applying new knowledge to the policy process or innovation in policy implementation” (R. Common, “Organisational Learning in a Political Environment” (2004) 25 Policy Studies 35, 37).

Organisational learning occurs when individuals within an organisation experience a mismatch between intended and actual results and inquire into it on the organisation’s behalf. This inquiry seeks to uncover the reasons for the disparity and ways of restructuring activities and behaviours so as to reduce the risk of such a mismatch re-occurring. To become organisational, the learning and understanding that results from the inquiry should become be taken up not just by isolated individuals within an organisation; rather, it needs to become embedded within the organisation’s cultures and routines. Organisations learn when they identify appropriate lessons from history which are then encoded into routines that guide future behaviour.

Government agencies that engage in organisational learning would start from the position that they would seek to produce good, robust, and well-reasoned decisions. It is dubious to suppose that any government department could ever produce excellent decisions all of the time. The next option is for departments to engage in organisational learning. Departments could do this by collecting information on their decisions, interpreting its relevance, drawing out appropriate lessons, and then embedding those lessons within their memory and processes. Departments could positively seek out feedback on their decisions with a view to enhancing decision quality. An allowed appeal would be seen not as a defeat, but as a learning opportunity. As James Joyce once noted, “Mistakes are the portals of discovery“.

How can the standard of decision-making be improved?

The challenge facing departments is precisely how to engage in organisational learning in order to improve their decision-making. Departments are often poor at organisational learning, especially those engaged in mass-transaction processing. Consider, for instance, the problems over recent years that have affected the Department for Work and Pensions, HM Revenue and Customs, and UK Visas and Immigration.

The prevalent impression is that departments accord a low priority to decision-making and to organisational learning. They normally focus upon processing the entire volume of incoming decisions rather than producing good robust decisions in each case first time. Once a decision has been made, it is no longer the agency’s concern. Tribunals are seen as a safety-net for correcting poor decisions – or, at worst, an interference. There is also the question of incentives for individuals inside departments. For instance, in January 2014, it was reported that Home Office presenting officers had been set a target of winning 70 per cent of asylum appeals and were rewarded with gift vouchers – hardly conducive to ensuring good decisions.

There are, though, a number of way in which departments can engage in organisational learning to enhance the quality of initial decision-making and which are outlined here. First, if tribunals are allowing appeals because additional evidence is only being considered for the first time on appeal, then departments could seek to ensure that such information is collected during the initial processing stage. Departments could review decisions before they are sent out to ensure that the reasons given are adequate and they can introduce reconsideration systems which enable the claimant to present further relevant evidence. They could also introduce quality assurance mechanisms whereby senior caseworkers review a sample of decisions to ensure they are robust. It should go without saying that the operation of such processes should be transparent.

Second, departments could draw upon the large amount of information that already exists on their decision-making contained in tribunal decisions. Most of the time, when a tribunal decides an appeal, the decision will simply be inserted into the case file and that will be it. A tribunal decision will usually only be examined if the department is thinking about an onward appeal. Yet, this is to overlook an important source of feedback. As the Independent Inspector of Immigration has noted, “appeal determinations provide an essential source of feedback for decision-makers, which is likely to result in improved decision quality”.

Previous efforts by tribunals to report on the standard of initial decision-making have often been unsuccessful. Between 1998 and 2008, the President of social security appeal tribunals produced an annual report on the standards of decision-making. The Tribunal President, Judge Robert Martin told the Commons Work and Pensions Committee in 2010 that he believed no one within DWP had listened to the conclusions and recommendations detailed in his annual report.

However, the importance of tribunal feedback is increasingly recognised. In 2013, the Home Affairs Committee noted that the substandard quality of asylum decision making is compounded by the inability of case workers to learn from their mistakes. The Independent Chief Inspector Immigration recommended in 2009 that the Home Office analyse the reasons why it was losing appeals in order to improve the standard of decision-making, but that recommendation had not been fully implemented. Recognising that not all successful appeals are the result of poor decision making or administrative failure, the Committee recommended that decision-makers should view every successful appeal as a learning opportunity. When an appeal is upheld, the decision-maker should, as a matter of course, have this drawn to their attention and be given the chance to discuss the reasons for the appellate decision with a more experienced peer or senior colleague.

The Ministry of Justice is also giving greater focus on improving initial decision-making as part of its strategy on administrative justice. The most significant and developed feedback scheme to be introduced has been the summary reasons project in social security appeals. Since 2013, the Department for Work and Pensions has been working with HM Courts and Tribunals Service to improve feedback from the tribunal. The Tribunal has produced summary reasons in a number of allowed appeals. A sample of summary reasons was then been analysed by the Department. According to the Department, the project has demonstrated the value of collecting and analysing tribunal feedback, which has resulted in training for decision-makers, reviewing the guidance for decision-makers, looking to identify trends, and pulling out useful case studies. In July 2014, Work and Pensions Committee welcomed more extensive feedback from appeals through the provision of summary reasons by tribunal judges, but noted that the feedback must be used effectively by the Department to improve the initial decision-making process.

There are other mechanisms available. Presenting officers from departments can provide feedback to initial decision-makers – though a recurrent source of concern has been the declining levels of attendance at appeal hearings by presenting officers. Tribunals can produce guidance decisions on how problematic and complex factual, procedural and legal issues should be handled. They can also engage in dialogue with departments. The Senior President of Tribunals can also raise matters of concern in his annual report on tribunals.

Another mooted solution has been to introduce a polluter pays principles, that is, to have financial incentives for departments to produce better decisions by requiring departments to contribute to the cost of appeals by reference to the proportion of successful appeals. This idea has been widely raised discussed as an incentive to induce departments to produce better decisions – the Government does not appear to be keen upon it – but it could have a role to play.

Conclusion

The standard of initial decisions is variable, but government can improve by engaging in organisational learning. This requires departments consciously to assume responsibility to understand the causes of poor decisions, and to seek to improve. They should seek to identify appropriate lessons from both failures and successes and expand their capacity to learn from the past to improve for the future. In particular, tribunal decisions contain much useful data on the quality of decision-making and on the nature of decision-making. Departments should collect and analyse such feedback and enter into dialogue with tribunals and other bodies. Some have made initial efforts to learn from tribunals, but much more could be done. Only if departments are able to improve the quality of their own learning, will we then start to see better quality initial decisions.

Robert Thomas is at the School of Law, University of Manchester.

This blog draws upon a forthcoming paper in Public Law, available here.

Suggested citation: R. Thomas, ‘Administrative Justice, Better Decisions, and Organisational Learning’ UK Const. L. Blog (9th September 2014) (available at http://ukconstitutionallaw.org)

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Natasha Simonsen:Government cannot use a ‘statutory back door’ to implement major changes to legal aid services, Divisional Court says

MatricIn a judgment released yesterday a Divisional Court unanimously struck down the government’s attempt to introduce a residence test for eligibility for legal aid, finding it incompatible with the objective of the Legal Aid, Sentencing and Punishment of Offenders Act (‘LASPO’). The ratio of the judgment was that the residence test had been introduced via an amendment to the schedule in the Act (that is, via subsidiary legislation) that was not compatible with the objective of the primary legislation. While that sounds like a rather technical decision, it has important ramifications for democratic accountability. It means, in essence, that if the government wants to make such a drastic change as this, it will need to do so via an amendment to the Act itself, with the full Parliamentary debate that that would entail. The case is also interesting because of the two rights-based grounds that were argued before it. The first, that the introduction of a residence requirement violated the fundamental right of access to a court, the court declined to engage with. The second was that residence was not a lawful ground for discriminating in the provision of legal aid between equally meritorious claims. The court accepted this claim, but apparently in obiter dicta, since only the statutory construction point was strictly required to reach the outcome.

The ratio of the judgment

Lord Justice Moses (with whom Mr Justice Collins and Mr Justice Jay agreed) held that the introduction of a residence requirement as an amendment to Schedule 1 of LASPO was ultra vires because it was not compatible with the Act. The court identified the objective of the primary legislation as being to provide legal aid to those with the greatest need. The amendment, in contrast, had ‘nothing to do with need or an order of priority of need. It is, entirely, focused on reducing the cost of legal aid’ [43]. This violated the principle that subsidiary legislation must ‘serve and promote the object of the statute’ [40].

This is important because secondary legislation does not face the same degree of scrutiny in the Parliament as does primary legislation. While primary legislation needs to be approved by a majority of votes in both Houses of Parliament, and receive Royal Assent by the Queen, secondary legislation can be either negative or affirmative. If the former, the instrument becomes law without a debate or vote but can be annulled by a contrary resolution in the Parliament. If the latter, both Houses of Parliament must expressly approve them. The respondent government had argued that, since this amendment took the form of an affirmative instrument, it had received the imprimatur of the Parliament. Notwithstanding that, the Divisional Court found that was not enough because, ‘on a true construction of the statutory powers in their context, no power to introduce such a measure can be found’ [48]. The court’s ruling reaffirms the constitutional principle that the government cannot use the means of subordinate legislation as a ‘statutory back door’ [46] to ‘widen the purposes’ of legislation that has been passed by the Parliament [40]. Changes this big need to be brought through the front door.

The residence requirement, if upheld, would have limited legal aid to those who could demonstrate ‘a meaningful connection with the UK’, unless they could demonstrate eligibility elsewhere in the legislation. Yesterday’s judgment does not foreclose the possibility of that restriction being introduced in the future. But the Court’s intervention puts the onus on the Parliament to consider and evaluate the purpose of legal aid in the UK and the objectives that LASPO aims to serve. If the legal aid is to be subjected to the pursuit of goals other than giving help to those in greatest need, then those objectives need Parliamentary approval in the form of primary legislation.

Thus, in some ways the court’s decision handballs the question back to the legislature. But the terms of any future legislative debate will no doubt be framed by the discussion of the issues in the judgment. The court discussed some powerful examples, such as P, a severely disabled adult who was starved, beaten and forced to live in a dog kennel by his mother and brother. Yet, for various reasons, it would have been impossible to prove that he had been lawfully in the UK for a continuous period of 12 months at some point in the past, and thus he would not have satisfied the proposed residence requirements. It is hard to see how depriving a person in P’s circumstances of legal aid could meet the Ministry of Justice’s specified objective of ‘targeting legal aid at the most serious cases which have sufficient priority to justify the use of public funds.’

It remains to be seen whether the government will appeal the court’s decision, or introduce amended legislation to the Parliament. Either way, the judgment has forced a fuller engagement with the question of the purpose that the provision of legal aid serves in England and Wales. This is democratic dialogue—and a culture of justification—in action.

Rights-based argument one: access to courts

The questions that the court did not decide may be almost as important as the questions that it did decide. The Public Law Project had also argued that the power contended for by the Lord Chancellor would violate the fundamental right of access to a court. But Moses LJ declined to engage with this argument, stressing that his reasoning was ‘confined to the construction of the powers that [the statute] confers’ [50]. In another passage, however, His Honour hinted at the problems that might arise in future, saying that ‘it might have been possible to draft primary legislation (I say nothing about its legality) which has the broader ambition of cutting the cost of legal aid by permitting the Lord Chancellor to adopt criteria irrespective of need…’ [45]. This foreshadows a debate which is highly likely to arise in any future legal proceedings.

The Divisional Court might be engaging in a spot of careful judicial diplomacy here. At a time when tensions are running high over the UK’s future in the European Convention system, it may not come as a surprise that the judgment turned on a narrow question of statutory construction rather than the implications of the measure for the Article 6 ECHR right of access to a court. Moreover, throughout the judgment Moses LJ referred obliquely to ‘vindicating rights’ [75] or ‘fundamental rights’ [47], [50], preferring to avoid specific reference to Convention rights or Convention case law. In this language choice, was the Court cleverly hinting here that the right of access to a court is no less entrenched in English and Welsh common law than in ECHR jurisprudence?

Rights-based argument two: discrimination

Interestingly, having reached a decision that turned on a question of statutory interpretation, and then having declined to deal with the argument based on access to justice, the Divisional Court went on to consider a third argument raised by the applicant. The judgment went on to hold that residence would not be a lawful ground for discriminating between the provision of legal aid in equally meritorious cases. This part of the judgment will no doubt provide fertile ground for equality lawyers, and has been discussed at length here and here. Rather confusingly, given that it does not appear to be part of the ratio, Moses LJ described the discrimination argument as the applicant’s ‘essential complaint’ [51]. The discussion of residence as a basis for distinguishing between worthy claimants builds on (without expressly citing) the House of Lords decision in the Belmarsh case, striking down detention of foreign nationals on the basis that the measure was not rationally tailored to the objective.

What appellate courts will make of this judgment, and how the government will respond, remains to be seen.

 

 Natasha Simonsen is a Stipendiary Lecturer in Law at St Anne’s College, Oxford .

(Suggested citation: N. Simonsen, ‘Government cannot use a ‘statutory back door’ to implement major changes to legal aid services, Divisional Court says’ U.K. Const. L. Blog (17th July 2014) (available at http://ukconstitutionallaw.org/).

 

 

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Emily MacKenzie: The Lawfulness of Detention by British Forces in Afghanistan – Serdar Mohammed v Ministry of Defence

Emily MacKenzie-Brick Court ChambersOn 2nd May, the High Court held that the UK Government must pay Serdar Mohammed (SM) compensation because British troops detained him unlawfully in Afghanistan. The case raised a myriad of international law issues, which are dealt with elegantly in an extensive judgment by Mr Justice Leggatt. This post will attempt to summarise some of the key issues involved.

SM is an Afghan citizen, who was captured (as a suspected Taliban commander) by British forces, operating as part of the UN’s International Security Assistance Force (ISAF), during a 2010 military operation in northern Helmand. He was imprisoned on UK military bases for 110 days, after which he was transferred to Afghan detention where he remains to this day.

He alleged that his detention by British forces was unlawful under (a) Afghan law (which applied to any tortious action committed by UK forces under Section 11 of the Private International Law (Miscellaneous Provisions) Act 1995), and (b) the right to liberty and security under Article 5 of the European Convention on Human Rights (the Convention).

Leaving Afghan law aside for now, the Judge found that SM’s detention breached Article 5 once it passed 96 hours in duration.

Leggatt J found that the ISAF detention policy, which permitted 96 hours of detention before a detainee must be handed over to the Afghan authorities, was compatible with Article 5. However, the UK had adopted a separate national policy in 2009, which permitted detention beyond 96 hours for the purpose of “interrogating a detainee who could provide significant new intelligence” (para 4). That was the basis on which SM was held for 25 days after the initial 96 hour period. Leggatt J held that this was not a purpose permitted by Article 5. SM was then held for a further 81 days in what Leggatt J termed “logistical” detention because the Afghan authorities were struggling with prison overcrowding. Leggatt J held that this also breached Article 5 because it was not in accordance with any ISAF/UK policy for detention and so was “arbitrary” (para 356).

The substantive analysis of Article 5 aside, the most interesting issues dealt with in this judgment arose as defences the MOD raised against the Article 5 claim. This post will discuss the following issues in brief:

      1. the territorial scope of the Convention;
      2. extraterritorial derogation from the Convention;
      3. legal responsibility for the actions of ISAF forces;
      4. the relationship between UN Security Council Resolutions and the Convention;
      5. whether there was a basis for detention in international humanitarian law;
      6. the “act of state” defence.

The territorial scope of the Convention

Leggatt J found that the actions of the British troops in this case were within the territorial scope of the Convention. Many considered this to be inevitable following Al Skeini v United Kingdom and Smith v Ministry of Defence, although Leggatt J professed his own disquiet about the state of the law, stating:

I find it far from obvious why a citizen of Afghanistan, a sovereign state which has not adopted the Convention, should have rights under the Convention in relation to events taking place in Afghan territory. (Para 116)

As Marko Milanovic writes in his excellent post for EJIL: Talk!, Leggatt J’s decision puts paid (for now, and possibly for good) to the government’s strategy of attempting to distinguish the situation in Iraq (where the facts of Al Skeini and Smith took place) from the situation in Afghanistan: a strategy deployed by the MOD in this case on the grounds that the UK “did not have such complete control over the detention facilities in Afghanistan” (para 144). Leggatt J held that this distinction was “unsustainable” because

the decision of the European Court in the Al-Skeini case unequivocally decides that jurisdiction under Article 1 over an individual detained in a prison controlled by a state on foreign soil does not depend on whether the state has sovereignty over the prison, such that officials of the state on whose territory the prison is situated have no legal right to enter it. Indeed, the state’s jurisdiction does not even derive from the control exercised over the prison as such at all. In the Court’s words (para 136): “What is decisive in such cases is the exercise of physical power and control over the person in question. (Para 147)

Extraterritorial derogation

Perhaps more notably, Leggatt J went on to say that Article 15 of the Convention could be invoked in an extraterritorial context. Article 15 gives States the ability to derogate “[i]n time of war or other public emergency threatening the life of the nation” from some of its obligations under the Convention “to the extent strictly required by the exigencies of the situation”.

Lord Bingham had previously expressed doubt in Al-Jedda v Secretary of State for Defence that the Article 15 conditions could ever be met “when a state had chosen to conduct an overseas peacekeeping operation, however dangerous the conditions, from which it could withdraw”, but, as Leggatt J noted, Lord Bingham was speaking at a very different time. Now it is clear that the Convention has extensive extraterritorial reach, Leggatt J considered that Article 15 must be interpreted “in a way which is consonant with that position” to permit derogation to the extent that it is strictly required by the exigencies of the situation.

This, Leggatt J concluded, “can readily be achieved without any undue violence to the language of Article 15 by interpreting the phrase ‘war or other public emergency threatening the life of the nation’ as including, in the context of an international peacekeeping operation, a war or other emergency threatening the life of the nation on whose territory the relevant acts take place.” (Para 156)

The concern expressed by some is that states should not be encouraged to derogate their human rights responsibility when they have voluntarily entered conflicts which do not directly impact the “life of the [home] nation”. There are, I think, at least two counters to this.

The first is that Leggatt J’s suggestion makes practical sense. The use of the power of derogation may be the only way that human rights standards can become a workable set of norms in the context of armed conflict. The second counter is that when states derogate they formally acknowledge what human rights protections they feel able to uphold in a given situation. This pushes into the open what might otherwise be a clandestine deployment of emergency powers (see this post by Fionnuala Ní Aoláin on the Just Security Blog). It allows public debate and (potentially) judicial review of the restriction on the one hand, and the government to demand some realism from the courts on the other. It may operate to ensure that human rights are respected to the greatest extent possible; now that we know (post Al-Skeini) that the Convention obligations can be “divided and tailored”. This at least has the potential to ensure that the degree of respect for human rights in armed conflict increases in practice, if not in theory. Clearly, however, the nuances of this have yet to be worked out.

Who is responsible: the UK or the UN?

The MOD argued that the UN, rather than the UK, was responsible for the actions of the British troops because they operated under a UN mandate as part of ISAF: an argument rooted in the controversial Behrami; Saramaticase. As expressed by Lord Bingham in Al-Jedda, the ultimate test is one of “effective control”.

Leggatt J concluded that the UN Security Council did have effective control over ISAF “in the sense required to enable conduct of ISAF to be attributed to the UN” (Para 178). However, he found that the detention of SM was attributable to the UK and not the UN because it was not authorised under an ISAF detention authority, but under the UK’s own national detention policy.

The relationship between human rights law and UNSC Resolutions

Bound by Al-Jedda, Leggatt J held that the obligations imposed by the authorising UNSCRs were capable of displacing obligations imposed by Article 5 of the Convention. This occurs by virtue of Article 103 of the UN Charter, which gives Charter obligations primacy over obligations “under any other international agreement.”

Crucially, however, Leggatt J found that the UNSCRs (i) did not authorise detention for longer than necessary to pass the detainee into Afghan hands, and (ii) did not authorise detention which violated international human rights law (para 226). Here, he applied dicta of the Strasbourg Court in Al-Jedda, to the effect that:

In the absence of clear provision to the contrary, the presumption must be that the Security Council intended States . . . to contribute towards the maintenance of security . . . while complying with their obligations under international human rights law. (Para 105)

The upshot was that there was no question of the UNSCRs displacing the UK’s obligations under Article 5 as the UK was not operating within the mandate of the UNSCRs because (i) they gave no authority for detention beyond 96 hours, and (ii) the detention policy violated international human rights law.

The role of international humanitarian law (IHL)

Leggatt J reached two important conclusions on IHL. First, he found that IHL provided no legal basis for the detention of SM. Second, he found that IHL did not displace Article 5 as lex specialis.

Rejecting the arguments of some academics, Leggatt J refused to accept that Common Article 3 of the Geneva Conventions or Additional Protocol II provide a legal power to detain, but rather found that these provisions “guarantee a minimum level of humanitarian treatment for people who are in fact detained during a non-international armed conflict” (para 251).

On the question of IHL as lex specialis, Leggatt J commented (obiter, since the question did not need to be decided given his conclusion that there was no basis for the detention in IHL) that:

At least arguably . . . the only way in which the European Court or a national court required to apply Convention rights can hold that IHL prevails over Article 5 is by applying the provisions for derogation contained in the Convention itself, and not by invoking the principle of lex specialis(Para 284)

The “act of state” defence

In relation to the claim under Afghan law, Leggatt J concluded that this was indeed barred by the defence that the detention of SM was an “act of state”, finding that the doctrine operated analogously to the conflict of laws rule. He explained that UK detention policy and practice in Afghanistan:

 . . . can be reviewed by the English courts in accordance with established principles of public law. But if and insofar as acts done in Afghanistan by agents of the UK state in carrying out its policy infringe Afghan domestic law, that in my opinion is a matter for which redress must be sought in the courts of Afghanistan. It is not the business of the English courts to enforce against the UK state rights of foreign nationals arising under Afghan law for acts done on the authority of the UK government abroad, where to do so would undercut the policy of the executive arm of the UK state in conducting foreign military operations.  (Para 396)

Because Leggatt J saw the act of state doctrine as a rule of comity, rather than a rule of non-justiciability, the logic behind the doctrine only applies where the lawfulness of an act falls to be determined in accordance with a foreign source of law. Therefore, it did not apply in relation to the claim under the Human Rights Act, which was a claim in English law.

Conclusion

In holding that SM had an “enforceable right” to compensation, Leggatt J noted that this:

. . . will not come as a surprise to the MOD which formed the view at an early stage that there was no legal basis on which UK armed forces could detain individuals in Afghanistan for longer than the maximum period of 96 hours authorised by ISAF. (Para 6 (xi))

The fact that the result was predictable will provide little comfort to those who point out that commanders are being placed in the unenviable position of having to choose whether to release a suspected insurgent back into the battlefield or to accept that he will be held illegally and entitled to compensation for that. In light of Leggatt J’s judgment, there are at least two routes, neither free from difficulty, that could be taken to avoid this in any future armed conflict. First, the government could seek to have greater powers of detention conferred under the authorising UNSCRs. Second, it could attempt to derogate from Article 5. The fall-out from such an attempt would no doubt be great. For now we will have to wait and see whether the government appeals – as it is expected to do – and, if it does, how the higher courts tackle these issues.

 

Emily MacKenzie is a barrister at Brick Court Chambers and is currently working as an International Law Fellow at the American Society of International Law

(Suggested citation: E. MacKenzie, ‘The Lawfulness of Detention by British Forces in Afghanistan – Serdar Mohammed v Ministry of Defence’ U.K. Const. L. Blog (2nd June 2014) (available at: http://ukconstitutionallaw.org/).

 

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Filed under Human rights, Judicial review

Merris Amos: Scotland, Independence, and Human Rights

Merris Amos.jpgIn its weighty tome, Scotland’s Future, the Scottish Government promises that at its heart, an independent Scotland will have “the respect, protection and promotion of equality and human rights.” Furthermore, this will not be just an empty gesture but will be “enshrined in a written constitution to bind the institutions of the state and protect individuals and communities from abuses of power.” The promise is also made that as an independent state, Scotland will live up to its international obligations on equality and human rights. Furthermore, protections already enjoyed will continue in a written constitution. These will include the rights contained in the European Convention on Human Rights (ECHR) but other rights will also be considered for inclusion. Specifically mentioned are the rights contained in the UN Convention on the Rights of the Child and principles designed to “deliver greater equality and social justice.” Any new rights or future changes will be developed in “full consultation with the people of Scotland”. It is also promised that Scotland will continue to have its own human rights body.

If the intention is to encourage a “yes” vote from those basing their vote for or against Scotland’s independence on human rights protection alone, this is a very good start. Leaders of the major political parties in the rest of the UK find it difficult to mention the words “human rights” let alone make promises to improve the legal protection of human rights or explore the possibility of adding new rights to those already protected by the Human Rights Act (HRA). Officially, the most recent pronouncement was from the Commission on a Bill of Rights which reported in 2013. Unable to agree on much, a majority of the Commission concluded that there was a strong argument in favour of a UK Bill of Rights which would build on all of the UK’s obligations under the ECHR and provide no less protection than was contained in the HRA. However, a different majority concluded that socio-economic rights were not something that should be included and that the present declaration of incompatibility contained in section 4 of the HRA should be retained as “there was no desire for conferring on courts a power to strike down inconsistent Acts of Parliament.” There has been very little progress on human rights law reform since.

By contrast, whilst the details are limited, the Scottish Government’s promises about human rights would address at least three of the problems with the current state of legal protection of human rights in the UK which the Commission on a Bill of Rights failed to do. First, as the Scottish Government itself recognised, whilst Scotland’s current equality and human rights framework is strong, that framework’s future cannot be guaranteed under current constitutional arrangements. The same goes for the rest of the UK. Once campaigning gets under way for the 2015 UK general election, it is likely that the repeal of the HRA will once again be a feature of the Conservative Party’s campaign as it was for the 2010 general election. Including human rights protection in a written constitution offers much more effective protection from the political winds of change than that offered by a mere Act of Parliament. Although it is likely that politicians would continue to criticise politically unpalatable judgments, such as those concerning prisoner voting, such criticism would be unlikely to be accompanied by promises to repeal or amend the constitution, particularly if the new constitution occupied a special place in the hearts and minds of the Scottish people. The experience of other countries demonstrates that including human rights protection as a key part of a written constitution also improves knowledge of and respect for human rights law, particularly if changes to present arrangements are developed in full consultation with the people of Scotland.

Second, whilst the details are not clear, it is likely that a written constitution containing human rights protection would mean that the legislation of the new independent Scottish Parliament would be vulnerable to legal challenge in the courts were it to be incompatible with human rights law. Whilst under the Scotland Act 1998 this is the situation at present in relation to the devolved legislation of the Scottish Parliament, it is not the situation in respect of the laws of the Westminster Parliament. Under section 4 of the HRA all a court can do is issue a declaration of incompatibility and wait for government, and Parliament, to change the law with all the delay and uncertainty that this entails. And finally, given the traditionally strong commitment to social justice in Scotland and willingness to include in the written constitution rights additional to those in the ECHR such as children’s rights and principles designed to “deliver greater equality and social justice”, it is likely that by contrast to the rest of the UK, human rights protection in an independent Scotland would extend to justiciable economic, social and possibly cultural rights. As appreciated during the lengthy process towards a Bill of Rights for Northern Ireland, often such rights have a more concrete meaning for people than civil and political rights and can help to muster support for human rights law generally whilst providing much needed protection for vulnerable individuals in an era of growing inequality.

Involving the people of Scotland in the future of human rights law, entrenching the outcome in a written constitution to which the legislature was subject, extending protection to economic, social, cultural and other human rights and support for a strong independent human rights commission would undoubtedly place an independent Scotland in the leading position on the protection of human rights when compared to the remaining countries of the United Kingdom. Were the HRA to be repealed following the next general election, the comparison would be even starker. But before planning a move to Scotland, it is important to be realistic about what will actually be achieved in relation to human rights protection were Scotland to achieve independence.

With a limited portfolio, it is fairly simple for the present Scottish government to be positive about human rights protection. Issues which have caused consternation for politicians at Westminster, such as the detention, control and deportation of terrorist suspects, have not arisen in the Scottish legal or political system. An independent Scotland would have responsibility for all matters including immigration and national security and much more difficult human rights questions would arise. Whilst it may be resisted, there would be a strong temptation to water down promised human rights protection in the face of public perceptions that human rights law is a “villain’s charter” an “obstacle to protecting the lives of citizens” and “practically an invitation for terrorists and would-be terrorists to come to Scotland”. Such notions have been prevalent in the UK print media over the last 14 years, including Scotland. Much initial work would have to be done to essentially rebrand the idea of human rights in the minds of the public, ensure sufficient education and promotion and encourage respect for the human rights parts of the written constitution. As the experience of other states demonstrates, the budget for an “open, participative and inclusive constitutional convention” would be considerable.

A related issue is what relationship Scottish courts in an independent Scotland would have with the European Court of Human Rights (ECtHR) when adjudicating on human rights claims. It is assumed that Scotland would be a party to the ECHR and thereby accept the right of individual petition to the ECtHR. Were the new constitution to be silent on the matter, it is also likely that Scottish judges would make full use of the jurisprudence of the ECtHR. Whilst there is considerable political mileage in the idea of a “Scottish” approach to human rights interpretation and application, which would garner respect and a margin of appreciation for Scotland before the ECtHR, again it is necessary to be realistic. It is only in a small minority of claims that there is actually room for a national approach. A recent example is the UK broadcasting ban on political advertising which was upheld by the ECtHR in Animal Defenders International v United Kingdom 2013. Other attempts to seek respect for a UK approach to human rights from the ECtHR, the blanket ban on prisoner voting for example, have not been successful.

In relation to the range of rights to be protected, it is important to appreciate that there exists a strong narrative force in the UK, and other national jurisdictions, against making economic and social rights justiciable in the same way as civil and political rights. As noted above, this was the conclusion of the Commission on a Bill of Rights and despite the promise of the Scottish government, the result of further consultation with powerful interests groups may mean that this promise is impossible to deliver. As it was for the HRA, a first step may be simply to offer protection to the rights contained in the ECHR and Protocol No.1, as noted in Rights Brought Home, the White Paper accompanying the Human Rights Bill, “ones with which the people of this country were plainly comfortable”. And finally, it is not clear from Scotland’s Future how the written constitution would limit the power of the Scottish Parliament to legislate. It is possible that human rights protection may afford Scottish judges something more than a declaration of incompatibility but less than a strike down power raising similar problems of delay and effectiveness which have bedevilled section 4 of the HRA.

Whatever the outcome of the referendum, by making the protection and promotion of equality and human rights as a part of a written constitution one of the issues for consideration, the Scottish Government has set an excellent example. Should the vote be for independence, those with the power to embrace and reform human rights law in the rest of the UK should take careful note.

Merris Amos is a Senior Lecturer at the School of Law, Queen Mary, University of London.

(Suggested citation: M. Amos, ‘Scotland, Independence, and Human Rights’ U.K. Const. L. Blog (13th May 2014)  (available at  http://ukconstitutionallaw.org/).

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Filed under Constitutional reform, Devolution, Human rights, Judicial review, Scotland, UK Parliament