Category Archives: Judiciary

by UKCLG blog editors | April 11, 2013 · 5:08 am

Kate Malleson: Is the UK the only OECD country that does not have excellent women lawyers fit for our highest courts?

Readers will be forgiven for not noticing, but on 8 April 2013 Lord Justice Hughes and Lord Justice Toulson were sworn in as Justices of the UK Supreme Court.

Their appointment, together with that of Lord Hodge (who will succeed Lord Hope when he retires in October 2013), leaves the Court rock bottom of the list Supreme Courts of the 34 OECD (Organisation for Economic Co-operation and Development) countries when it comes to the gender composition of bench. Fifteen new judges been appointed to the court since 2009 when the court opened its doors. All have been male. Lady Hale remains the only woman ever appointed to the highest court in the land.

It is now well established that there are many barriers to women reaching the higher ranks of the judiciary: from the unreconstructed working arrangements of the legal profession and the bench to the wider social context of the gendered division of labour around caring responsibilities. But all of these barriers are equally present in other countries which have done so much better than us in appointing women to their judiciaries.

Numerous detailed proposals for reform have been put forward in the UK over the last 20 years for encouraging greater diversity on the bench. All of them are necessary but they are not sufficient. What Adam Wagner has described as an ‘attack of the clones’ continues. In fact, in the last two appointment rounds – though which five Supreme Court Justices were appointed – just one woman sat on the appointing committee.

Ultimately, to change the composition of an institution of power such as the judiciary and to allow in those who are not drawn from the same background as the traditional recruits requires political will. Not just from politicians, but from all the key stakeholders, in this case the judges and the legal profession.

In Northern Ireland after the Good Friday agreement was signed there was political will to change the composition of the bench, in that case to include those from the catholic community. It would no longer have been acceptable for the majority catholic community to be tried by an almost exclusively protestant bench. Quietly and effectively the change was made within a few years. The same political will is evident in countries such as Canada which have transformed their Supreme Court composition in terms of gender. The latest round of appointments to the UK Supreme Court shows that the same political will is lacking here.

The claim – evidenced by these appointments – that after 30 years of women entering the legal profession in large numbers and almost a decade after the first woman was appointed to the House of Lords – we still don’t have enough highly talented women to appoint to the bench is simply incredible. Do we really believe that we are the only country in the OECD that does not have excellent women lawyers fit for our highest courts? They may not look identical to the men who have traditionally been appointed, but they are there. It is time for the discussions, the official reviews and the hand-wringing to stop. It is time for some of these excellent women to be put on the bench where they belong.

Kate Malleson is Professor of Law at Queen Mary, University of London. Equal Justices Initiative is a forum for bringing together academics, practitioners, judges and policy-makers to work towards gender parity on the bench.

Suggested citation: Kate Malleson, ‘ Is the UK the only OECD country that does not have excellent women lawyers fit for our highest courts? ’ , UK Const. L. Blog (11 April 2013) (available at http://ukconstitutionallaw.org).

3 Comments

Filed under Comparative law, Judiciary

Tagged as diversity, Equal Justices Initiative, judicial appointments, judiciary diversity, UK Supreme Court

by Constitutional Law Group | April 2, 2013 · 2:51 pm

Dawn Oliver: Parliamentary Sovereignty in Comparative Perspective

I Parliamentary sovereignty in other countries

In this post I defend the absence of judicial strike down powers in the UK by exploring the ways in which other countries besides the UK manage to function well as liberal democracies without courts enjoying strike down powers, and looking at some of the negative aspects of the USA system, which is sometimes held up as a model to which the UK should look.

A doctrine of parliamentary sovereignty in the particular sense that the courts will give effect to legislation passed by the Parliament on any subject matter, even if it is ‘unconstitutional’, is not unique to the UK. It applies in common law based New Zealand which – like the UK – does not have a formally entrenched written constitution (though a 75% majority in a referendum is required to certain aspects of the electoral system). It also applies in some of our Northern European neighbours, notably Finland, Sweden and the Netherlands.

New Zealand

Politics in New Zealand resembles that of the UK in a number of respects, including the development of constitutional conventions of political restraint in relation to the constitution and the cultivation of good relations between the courts, the Parliament and the executive (M. Palmer ‘Open the door and where are the people’ The white population of New Zealand is relatively homogeneous and cohesive. Special measures – the Treaty of Waitangi – protect the Maori.

The New Zealand Parliament enacted a Constitution Act in 1986 which describes the country’s constitutional arrangements but leaves the traditional doctrine of parliamentary sovereignty broadly in place. The principal purpose of the 1986 Act was to patriate the New Zealand constitution by breaking its links with and dependence on the United Kingdom’s legal system.

The constitutionality of laws in New Zealand, not being protected by American-style judicial review, is promoted in a range of informal ways. In 1986 Minister of Justice, later Prime Minister, Geoffrey Palmer established a non-statutory Legislation Advisory Committee. The Committee is serviced by the Ministry of Justice and generally meets every six weeks. Its terms of reference are as follows:

(a) to provide advice to departments on the development of legislative proposals and on drafting instructions to the Parliamentary Counsel Office;

(b) to report to the Attorney General on the public law aspects of legislative proposals that the Attorney General refers to it;

(c) to advise the Attorney General on any other topics and matters in the field of public law that the Attorney General from time to time refers to it;

(d) to scrutinise and make submissions to the appropriate body or person on aspects of Bills introduced into Parliament that affect public law or raise public law issues;

(e) to help improve the quality of law-making by attempting to ensure that legislation gives clear effect to government policy, ensuring that legislative proposals conform with the LAC Guidelines and discouraging the promotion of unnecessary legislation.

Its members include the President of the Law Commissioners, academics, practising barristers, judges and parliamentary counsel and civil servants. While it has no delaying power and it is open to the government to ignore its reports, it is assumed to have an effect upstream in government during the preparation and then the parliamentary processing of bills. It is very rare for the New Zealand Parliament to pass laws that would be regarded as ‘unconstitutional’. I shall return to lessons that may be drawn from the New Zealand approach in due course.

Sweden, Finland and the Netherlands

Doctrines of parliamentary sovereignty in the sense that the courts may not hold an act passed by the primary legislator to be invalid as being ‘unconstitutional’ also operate among some of our Northern European neighbours (see Jaakko Husa‘ Guarding the Constitutionality of Laws in the Nordic Countries: A comparative perspective’ in 48 American Journal of Comparative Law, 2000, p. 345). Practice in these non-common law, small country jurisdictions may seem of little relevance to the UK, but we share a number of important and influential characteristics with them which can cast light on how they, and the UK, manage quite well without constitutional review by the courts.

There is very little American or German style ‘judicial review’ of legislation in Sweden: judicial review is only permitted if the conflict with the Constitution or another higher law is ‘clear’ or ‘manifest’ (see Thomas Bull ‘Judges without a Court: Judicial Preview in Sweden’ in T. Campbell, K. D. Ewing and Adam Tomkins The Legal Protection of Human Rights: Sceptical Essays, Oxford, Oxford University Press, 2011; Lars-Goran Malmberg in X. Contiades, ed. Engineering Constitutional Change: A Comparative Perspective on Europe, Canada and the USA, Abingdon, Routledge, 2012); in Finland there is none (see Jaakko Husa The Constitution of Finland, Oxford, Hart Publishing, 2011; Tuomas Ojanen ‘Constitutional amendment in Finland’ in Contiades ed, above; M. Suksi ‘Finland’ in Oliver and Fusaro, How Constitutions Change, Oxford, Hart Publishing, 2011; Kaarel Tuori in T. Campbell, K. D. Ewing and Adam Tomkins The Legal Protection of Human Rights: Sceptical Essays, above). These countries rely substantially on pre-legislative, abstract scrutiny – preview – of bills by special parliamentary committees: for instance the important and highly regarded Constitutional Committee of the Finnish Parliament; and, in the case of Sweden, on the work of its extra-parliamentary legislative committees in preparing proposals for legislation, and its Law Council, an official independent body similar to the French Conseil d’état or the New Zealand Legislation Advisory Committee, which scrutinises and reports on bills.

The Netherlands also lacks judicial review of Acts for constitutionality by the courts: this is forbidden by article 120 of the Constitution (see C A J M Kortmann and P P T Bovend’Eert The Kingdom of the Netherlands: An Introduction to Dutch Constitutional Law, Boston, Kluwer Law and Taxation Publishers, 1993). The Netherlands system relies on its Council of State to ‘control’ [scrutinise] and report on bills before they are passed. Its parliamentary committees are weak.

Each of the ‘preview’ bodies in these three countries includes lawyers in its membership – judges, academics or practitioners – and in some respects they adopt formal procedures which resemble those of the courts: hence the phrase ‘judicial preview’ may be applied to them, though they are none of them ‘courts’. In summary, each of these countries has developed a system of constitutional preview involving extensive consultation about and expertly advised non-partisan scrutiny of legislative proposals at a number of stages in the legislative process which has proved effective in preventing the making of ‘unconstitutional’ laws.

Despite the restrictions on or absence of judicial review for constitutionality only seldom, if at all, are laws passed which seriously conflict with constitutional principles in these countries. (Readers may be thinking that ‘seldom’ is not as good as ‘never’; and why does only ‘serious’ conflict matter? Perfection is unachievable in these matters. Is it the fact that bad laws of a constitutional nature have never been passed and given effect by the courts under their written constitutions in countries with judicial review? Surely not. (I shall consider the position on this issue in the United States briefly below.) On the other hand the Netherlands is a monist system and thus treaties, including for instance human rights treaties, have direct legal effect and give rise to rights that individuals may enforce in the courts. Thus there is in practice a form of judicial review of provisions in Acts which a court in the Netherlands may ‘disapply’ in case of incompatibility with treaty provisions, some of which are ‘constitutional’ in nature.

Sweden and the Netherlands, like the UK, are constitutional monarchies: they have evolved continuously over at least two centuries gradually subjecting the exercise of formerly wide powers by the head of state and government to legal and conventional constraints. The Constitution of Sweden dates from the Instrument of Government, 1809. The Constitution of the Netherlands as an independent state and monarchy dates back to 1814. Finland was part of Sweden until it became a Russian Grand Duchy – similar to a monarchy – of Russia in 1809. The Finnish Constitution of 1917-1919 was drafted on the assumption that the country would be a monarchy or German Grand Duchy, but this became impossible after the defeat of Germany in World War I and Finland turned to electing a President who enjoyed some powers of a King. Thus although the Finnish Head of State is a President the country has retained some of the traditions of continuity that constitutional monarchies possess ( see Seppo Hentila in The Parliament of Finland (Helsinki, The Parliament of Finland, 2000) pp. 35-45; Jaakko Husa, above.)

Each of these countries has a parliamentary executive, thus allowing constitutional traditions and conventions of responsible and responsive government to evolve and regulate the relations between the parliament and the executive in ways that are not possible in non-parliamentary, presidential systems; each has a fairly homogeneous population most of whose members share senses of common identity and common interests. Where, as in the Aland Islands of Finland, a population has a separate identity, special arrangements for their protection have been made. These countries have fairly consensual political traditions (see for instance Arend Lijphart, The Politics of Accommodation: Pluralism and Democracy in the Netherlands, 2nd edn. , Berkeley: University of California Press, 1975, on The Netherlands), and there are cultures of non-partisan approaches to constitutional matters or political traditions of pragmatic compromise: these tendencies may be reinforced by the fact that each uses a system of proportional representation in elections. The Finnish Constitutional Committee and the Swedish and Netherlands Councils of State act in quasi-judicial ways, taking advice from lawyers, often academics, and evidence, formulating their opinions in terms of constitutional legality, and generally adopting non-political positions.

Where a non-partisan approach to constitutional matters does not exist in a substantial section of the population of a state, where for instance a population is seriously divided on class, racial, sectarian, tribal or religious grounds, non-partisan politics, especially in relation to minorities and constitutional matters, may be impossible: experience in Northern Ireland, with its divided unionist and nationalist communities, in the middle of the twentieth century illustrates the point. In such countries there may well be a need for a judicially enforceable Constitution –and/or international agreements to resolve conflicts – as are provided for by the Northern Ireland Act 1998 and the Belfast Agreement (Cm 3883, 1998).

The UK shares many characteristics with New Zealand, Sweden, Finland and the Netherlands including evolution of constitutional arrangements over many years and parliamentary executives. Of course, the UK does not have a tradition of consensual party politics or coalition government. This may be due to the first past the post electoral system and to the fact that British politics retains elements of a class system, which in turn are reflected in some of the policies of the main political parties: class is less important in New Zealand and our Northern neighbours than in the UK. The UK does however, I suggest, have cultures and traditions that are hostile to partisan, and in favour of non-partisan, constitutional politics – again, Northern Ireland has been an exception: there consociationalism now provides a new form of consensus politics. But among the general public and in opposition parties opposition to partisanship in constitutional politics is deeply embedded in Great Britain.

It is broadly agreed and understood among Westminster parliamentarians and among the general public that constitutional change should not be brought about with a view to benefiting the party or parties in government or their supporters; rather constitutional changes should promote honestly held views about the public interest and where the balance between individual rights and conflicting public interests lies. Allegations of partisanship are of course made, especially by opposition parties and the critical press, when constitutional changes are under consideration. But Governments proposing change in the UK will never admit to partisanship: if they were to do so this would attract general public disapproval.

Partisan party political considerations no doubt influence the priority given to some proposals for constitutional change over others: commitments by the Labour government that was elected in 1997 to devolution to Scotland and Wales were no doubt influenced by fear of the Scottish National Party and Plaid Cymru winning over Labour voters if no such promise was made. That consideration does not however of itself detract from the merits of devolution, which are based in senses of shared national and regional identities and desires for government in these areas to promote general interests within each territory and for public servants to prioritise the interests of their populations, and not sectional interests.

This non-partisan understanding about constitutional change in the UK may exist because each government is an opposition in waiting and each opposition party is a government participant in waiting. The electoral system operates so that there are regular changes of government. It is not therefore in the interests of either government or opposition parties to concede a right to the others to use their power in relation to the constitution for party political advantage without any public interest justification. The terms of such debates take for granted that constitutional change should be non-partisan.

To sum up, nowadays the systems in New Zealand, Sweden, Finland and the Netherlands, and in the UK, include informal procedures, legal and political cultures and traditions which enable their constitutional arrangements to function reasonably well and generally without discriminating against parties and classes of people – without judicial strike down powers.

II Countries in which the courts may disapply or strike down legislation: the case of the USA

As is well known doctrines of parliamentary sovereignty in the specific sense that the courts will apply Acts passed by the Parliament regardless of their wisdom, workability or constitutionality do not apply in many countries with written and entrenched constitutions: the Constitution itself may contain clauses which limit the legislator’s power to make certain laws, for instance laws which interfere with federal principles or constitutionally protected human rights, or the independence of the judiciary either forever (eternity clauses, as in the German Basic Law) or unless and until the text of the Constitution is amended in accordance with special procedures such as two thirds majorities in the legislature and assent by three quarters of the states (as in the USA), referendums (as in Switzerland) and so on. And in those countries the courts – either all courts, or a Constitutional or Supreme Court – may disapply (in a concrete case) or strike down (for universal effect) legislation passed by the legislator/Parliament which breaches the Constitution: the USA and Germany are well known examples of countries in which a strike down power exists, but this is the case in very many liberal democracies.

The USA

The USA is an interesting example of how a system based on the common law has evolved differently from that of New Zealand and the UK and its Northern European neighbours. The USA was formed in a revolution and rejected the hereditary monarchy; it introduced instead an elected, rather monarchical, Presidency many of whose powers are very broad and ill-defined in the Constitution, legally controlled to an extent by Congress and by judicial review by the Supreme Court – but not, politically, by conventions. Other presidential powers are so constrained by Congress, in which the President may not have a majority, that it becomes almost impossible for even the most basic new laws to be passed without protracted political wrangling.

Why is this not the case in the UK – and in New Zealand and Canada and other Commonwealth nations? (s ee for instance T. Kahana ‘Canada’, M. P. Singh ‘India’, and P. Rishworth ‘New Zealand’ in Oliver and Fusaro, eds, above). In these countries conventions have evolved over time to deal with the fact that the Crown was not subject to judicial review – individual ministerial responsibility to Parliament being the most significant of these conventions. No such evolution took place in the USA because, the system being presidential rather than parliamentary, no confidence relationship exists between the President and Congress, and because all the ground rules are assumed to be contained in the Constitution and the decisions of the Supreme Court: in this respect the USA is a highly positivist system. The fact that the USA took a different and ‘non-conventional’ route from that taken by the UK and many Commonwealth countries and many other constitutional monarchies may go some way to account for the development of constitutional judicial review in the USA and in other states with executive presidencies, and for its absence in the UK and its legally related cousins.

The positivist approach and the absence of political conventions that constrain the exercise of executive power may also account for the fact that neither party political nor constitutional politics in the USA are consensual: the Constitution itself has been subject to political manipulation, the appointments to the Supreme Court have become politicised, and many executive and Supreme Court decisions on constitutional issues are wide open to allegations of political partisanship. Given that the United States Supreme Court’s constitutional judicial review jurisdiction is commonly looked to as an example to be followed by the UK, we should bear in mind that America is very different from the UK in many respects. It is not a parliamentary system. It is federal while the UK is a union state: it is essential in a federation that the states are judicially protected against encroachment on their powers by the federal institutions. By contrast the devolution arrangements in the UK specifically preserve the UK Parliament’s sovereignty. America’s political culture is even more aggressive than that of the UK and far less civil in its political and legal affairs: incivility is recognised as a problem in the USA (see for instance Susan Herbst, Rude Democracy: Civility and Incivility in American Politics, Philadelphia, Temple University Press, 2010; Dr Leslie Gaines-Ross ‘Incivility is harming America’s reputation’ at http://reputationxchange.com/2011/06/21/incivility-is-harming-americas-reputation/) whereas it is not – so far – seen to be a real problem in UK politics and legal practice.

The US Supreme Court has of course a positive record in relation to the Constitution, in particular human rights, in some areas, including the desegregation of schools (Brown v Board of Education 347 US 483 (1954)), and abortion (Roe v Wade 410 US 113 (1973). American arrangements are not, however, by any means watertight guarantees of human rights or good government (see generally T. Campbell, K.D. Ewing and A. Tomkins The Legal Protection of Human Rights: Sceptical Essays, above), and this should be borne in mind by those arguing for the adoption of constitutional review in the UK. No system is watertight. The USA Constitution and the Supreme Court’s role in interpreting and upholding the Constitution, and the political and public cultures there have not prevented the following:

a) Slavery (abolished by the Thirteenth Amendment, 1865; compare the ending of slavery throughout the British Empire by Act of Parliament in 1833, and its ending at common law in Somersett v Steuart (1772) 20 St Tr 1 (England) and Knight v Wedderburn (1778) Moor 14545 (Scotland)).

b) Racial segregation (upheld by the Supreme Court in Plessy v Ferguson 163 US 537 (1896), but later declared unconstitutional by the Supreme Court in Brown v Board of Education 347 US 483 (1954); the move to constitutionally required integration came with the Supreme Court decision in Green v School Board of New Kent County 391 US 430 (1968)).

c) Discrimination (phased out in a series of Civil Rights Acts in 1964, 1965 and 1968).

d) The denial of voting rights to slaves (ended by the Fifteenth Amendment, 1870, which guaranteed the right to vote without regard to race) and women (the Nineteenth Amendment, 1920, completed the extension of the franchise to women, providing that the right to vote could not be denied ‘on account of sex’).

e) Denial of many labour rights (Lochner v New York 198 US45 (1905)).

f) Prohibition (established by the Eighteenth Amendment in 1920, ended by the Twenty First Amendment in 1933).

g) The race based gerrymandering of district boundaries (found to be unconstitutional by the Supreme Court in Gomillion v Lightfoot 364 US 339 (1960); see also Miller v Johnson 515 US 900 (1995) and Hunt v Cromartie 532 US 234 (2001). Partisan gerrymandering continues).

h) The widespread use of the death penalty,

i) The upholding of unfair campaign financing practices (Buckley v Valeo 424 US 1 (1976); Citizens United v Federal Election Commission 558 U.S. 310 (2010)).

j) Resolution by the top court of a major presidential election dispute in favour of the candidate who received fewer votes than his opponent, reinforcing the incentives for a President to pack the Supreme Court with sympathetic judges (Bush v Gore 531 US 98 (2000)).

k) Detention of suspects without trial off-shore for lengthy periods.

Such problems should be borne in mind by those encouraging the UK and its courts to adopt US style judicial review, especially if they are encouraged to do so unilaterally and without a mandate in the form of legislation passed by Parliament or the adoption of a written constitution for the UK. A move to judicial review of legislation in the UK could well undermine the positive pro-constitutionalism, non-partisan aspects of the political and governmental culture.

III Concluding remarks

Of course other countries with entrenched written constitutions and Constitutional or Supreme Courts exercising judicial review of Acts may have different experiences of the workings of their arrangements. Such a system works well in Germany, for instance. But each has its own history and political and legal cultures. These should not be overlooked when fundamental changes to the British arrangements by virtue of unilateral and thus irreversible assumption of a strike down power by the courts is contemplated or argued for. Hints by some of the judges in Jackson v. Attorney General ([2006] 1 AC 262) to the effect that the courts may exercise a reserve power to refuse to give effect to a provision in an Act that was contrary to the rule of law should ring alarm bells. If the UK were to adopt an entrenched written constitution providing for a Supreme or Constitutional Court with strike down powers the controversies about such powers would not go away. But at least the Court could point to the Constitution as granting it that power. Our current courts cannot point to any such legitimating source: they should not assume such a power.

Dawn Oliver is Emeritus Professor of Constitutional Law at University College London.

Suggested citation: D. Oliver, ‘Parliamentary Sovereignty in Comparative Perspective’ UK Const. L. Blog (2nd April 2013) (available at http://ukconstitutionallaw.org)

5 Comments

Filed under Comparative law, Judiciary, UK Parliament

Tagged as America, comparative law, constitutional review, New Zealand, Parliamentary sovereignty

by Constitutional Law Group | March 30, 2013 · 7:51 am

Conor Gearty: The Important Inconvenience of the Rule of Law

Omar Othman is a resident of this country – guilty of no crime and up to now facing no charges – whose home country wants to put him on trial in a case where the key evidence against him will in all likelihood have been procured by torture. The only reason he probably won’t be tortured is because the state concerned has reluctantly promised (as an inducement to get him back) not to follow its usual routine.

If this person’s name were MacKinnon or Giles or Gary and the country Syria or Sudan, we’d have outraged Daily Mail editorials and a civil libertarian Home Secretary. But it is Abu Qatada and the state is Jordan.

In politics universal values (the rule of law; the protection of human rights; the prohibition on torture) are fine – but only so long as they don’t get in the way of our diplomatic or political interests, the career ambitions of our leading politicians, or the propensity of our allies to do evil.

The law doesn’t work like this.

It deals in legal commitments. No bit of the Human Rights Act or of the European Convention on Human Rights or the Convention Against Torture has a proviso ruling out their protection for foreigners with ‘funny’ names or for those with the ‘wrong’ ethnic or religious backgrounds. The three senior judges who have just reminded the government of this yet again in the latest ruling on Abu Qatada are not necessarily liberal, or progressive, or devotees of some kind of judicial cult worshipping at the shrine of Shami Chakrabarti. They are just doing in a dull old-fashioned kind of way what is made inevitable by their training, their culture, and the unequivocal democratic laws that it is their job to apply.

The facts of this case are surely by now well-known. It concerns the refusal by the Secretary of State to revoke the deportation order against Abu Qatada notwithstanding the ruling of the European Court of Human Rights that to send him to Jordan for trial would in the circumstances amount to a flagrant denial of his article 6 right (under the European Convention) to a fair trial. The Special Immigration Appeals Commission having made the decision to uphold the application, it was always a long shot that the Court of Appeal – with oversight only on issues of law – would overrule its specialist subordinate, and so it turned out. Here was a ‘detailed and careful judgment by an experienced tribunal’ (para 42) on the nature of the burden of proof and on what is entailed by the ‘flagrant denial of justice’ test that applied to cases such as the one before the court.

The subject matter also mattered.

As the Master of the Rolls, speaking for the Court of Appeal, put it:

‘Torture is universally abhorred as an evil. A state cannot expel a person to another state where there is a real risk that he will be tried on the basis of evidence which there is a real possibility may have been obtained by torture. That principle is accepted by the Secretary of State and is not in doubt. That is the principle which SIAC had to apply in the present case in the light of all the evidence that it heard and read. This included evidence as to what had happened and what there was a real risk would happen if Mr Othman faced a retrial on the very serious charges that he faces. SIAC found that there was a real risk that evidence obtained by torture would be admitted at the retrial and that, as a consequence, there was a real risk that he would be subject to a flagrant denial of justice’ (para 58)

Successive governments and the Tories in particular have long had a problem with the rule of law. It seriously inhibits the security services in their desire to take national security wholly back – Cold War style – into the realm of the executive. It also inconveniently stands against the populist manoeuvring favoured by the dark side of both main Parties.

But ….

The rule of law is what Conservatives in particular were brought up to believe in, a bit of the imperial history (Magna Carta, Blackstone, Dicey; etc) that Michael Gove will soon be making all little Englanders learn by rote. In the good old days the judges saved embarrassment by looking the other way when radicals were shafted, shocking bail conditions imposed, foreigners unceremoniously thrown out. This went on right into the 1980s (Spycatcher; the Birmingham Six; the miners’ strike). But things have changed. The Hales, Neubergers, Dysons of today are not the ex-servicemen, rabid anti-Communists and Tory placemen of yesteryear. And there is now the European Court of Human Rights to keep them honest, as it did in the Abu Qatada case itself last year when overruling our judges’ effort to be relaxed about torture evidence as long as it was being allowed in Amman and not the Old Bailey.

This is how the Court of Appeal dealt with the politics, what in cricket might be called the straightest of straight bats:

‘Mr Othman is considered to be a dangerous and controversial person. That is why this case has attracted so much media attention. It is entirely understandable that there is a general feeling that his deportation to Jordan to face trial is long overdue. But the principles that we have to apply do not distinguish between extremely dangerous persons and others who may not constitute any danger in the United Kingdom and whom the Secretary of State wishes to deport to face trial in another country. The fact that Mr Othman is considered to be a dangerous terrorist is not relevant to the issues that are raised on this appeal. It would be equally irrelevant if we were deciding the question whether there was a real risk that he would be tortured if he were returned to Jordan.‘ (para 56).

What will the government do?

In the short term it has enough legal devices to hand to continue to make the life of Abu Qatada and his family hell without exposing their hand against him in any kind of fair prosecution for a serious offence. If they get the chance they might even press charges if they can be assured of the secret justice for which they have been fighting so hard in recent weeks.

In the longer term the Conservatives only get away with supporting universal values like the rule of law and human rights while also condemning non-white foreigners, deadbeat immigrants and benefit scroungers because they are always silently whistling that none of the values we supposedly uphold really in truth applies to these reprobates. Nigel Farage has thrown the Party into a panic precisely because he is talking about this, not covertly whistling.

Short of abolishing the rule of law and universal human rights the party is left with the poor consolation of being able only to shout insults at the judges –like a political version of the limbless black knight in Monty Python and the Holy Grail who roars at his adversary ‘Come back and I’ll bite your legs off.’

Conor Gearty is Professor of Human Rights Law, LSE, and a Barrister at Matrix Chambers.

Suggested citation: C. Gearty ‘The Important Inconvenience of the Rule of Law’ UK Const. L. Blog (30th March 2013) (available at http://ukconstitutionallaw.org)

An earlier version of this post appeared in The Guardian.

7 Comments

Filed under Human rights, Judiciary

Tagged as Abu Qatada, Deportation, Rule of Law

by Constitutional Law Group | March 7, 2013 · 4:30 pm

Patrick O’Brien: When Judges Misbehave: The Strange Case of Jonah Barrington

The recent high profile arrest of a part-time recorder, Constance Briscoe, in connection with the Vicki Pryce trial gives me a tenuous topical link to judicial discipline and nineteenth century case of Sir Jonah Barrington, still the only High Court judge to have been dismissed from office. Disciplinary proceedings against a judge are relatively rare and dismissal of a permanent salaried judge is almost unheard of. Removal of a judge above High Court level is something that may only be done by Parliament according to the Act of Settlement 1701 (re-enacted in section 11 of the Senior Courts Act 1981). For judges below High Court level (such as Briscoe) it may be done by the Lord Chancellor and the Lord Chief Justice acting in concert under the Constitutional Reform Act 2005. The rules for disciplinary action short of dismissal (for example, formal reprimands) are similar. The website of the judiciary in England and Wales lists two cases in which a district or circuit judge has been dismissed since the 1980s (one, intriguingly, for smuggling whiskey). Barrington’s case deserves more than a slightly notorious footnote in textbooks.

Barrington was an Irish barrister and politician, and served as an MP in the Irish Parliament prior to the Act of Union in 1801. As a reward for political loyalty he was given a seat on the Irish Court of Admiralty in 1798 whilst still an MP but the Act of Union deprived him of his parliamentary seat, and he expended a great deal of ink in later life writing about what he perceived as the betrayal of Ireland by those who acquiesced in the union. In later life he would also write a colourful book of reminiscences detailing, amongst many other things, several instances in which he participated in duels in response to insults he suffered on the bench.

The events that led to his dismissal as a judge took a long time to come to pass. In admiralty cases in 1805 and 1806 (the Nancy and the Redstrand) Barrington took around £850 in cash for his own use. In 1810 a ship salvager asked Barrington’s court to pay £40 over to him. Barrington directed the registrar to pay it but delayed the order for two months. During this time Barrington fled to France where he continued to live for the rest of his life, never returning to Ireland. During his period in effective exile he continued, however, to receive his judges’ salary of £1,000 per annum. His judicial duties were carried on by a succession of deputies appointed by Barrington and paid only comparatively tiny sums.

Barrington’s rather brazen behaviour came to light in 1829 in the course of a general investigation into court officers in Ireland. A parliamentary Commission uncovered evidence of the alleged embezzlement of two decades earlier and also referred scathingly to the fact that Barrington “has been for more than eighteen years enjoying a sinecure salary.” Matters went before report a Commons Select Committee in early 1830. Both the Commission and the Select Committee repeatedly offered Barrington the opportunity to offer evidence in his defence but he refused to leave France or indeed to offer anything other than repeated letters insisting on his innocence. Following consideration by the Select Committee, a motion went before the Commons, sitting as a committee of the whole house, to present an Address to His Majesty requesting the removal of Barrington under the Act of Settlement. At this point it appears that Barrington began to realise the gravity of the situation and he sought through advocates in the Commons to be allowed to give evidence. This was refused, apparently because he had passed up opportunities to give evidence previously, and the motion passed.

Barrington was allowed to make submissions in the Lords debates, where matters proceeded as something approximating criminal proceedings, with formal examination in chief and cross-examination of the main witness, Barrington’s Registrar (Daniel Pineau). In the course of Pineau’s cross-examination it emerged that in relation to the 1805 case Barrington obtained the money from Pineau personally and not from the public purse. Pineau kept court funds in his own home and reading between the lines there is a suggestion that some or all of the embezzlement may have been done by Pineau himself rather than Barrington. The Registrar had a more or less absolute right to deal with court funds and so could have lent money legitimately to Barrington. Barrington’s counsel did not, however, pursue this apparent line of defence. The motion passed the Lords and Barrington was then dismissed.*

If Barrington’s case were to occur today it seems likely that, as appears to have occurred in the Briscoe case, criminal proceedings would be allowed to run their course before any attempt at dismissal. In relation to the Briscoe case, the front page of the website of the Office for Judicial Complaints stated simply that “The Lord Chief Justice and Lord Chancellor have suspended Constance Briscoe from the judiciary pending the outcome of the police investigation into the allegations against her.” In the parliamentary debates in 1830 it is emphasised that no criminal case was pursued against Barrington because of his illness and advanced age. In an equivalent modern case such deference seems unlikely and if a judge convicted of a criminal offence did not resign voluntarily Parliament would in all likelihood refer to the fact of the criminal conviction rather than seek to re-examine the evidence. But in the event that a judge tried – like Barrington – to brazen it out, or where (as in the case of a modern Irish judge, Brian Curtin) a criminal case collapses for technical reasons leaving serious charges unanswered, the example of the 1830 debates provide a useful blueprint for how Parliament could proceed.

* This argument about a possible defence is suggested by Andrew Dewar Gibb, Judicial Corruption in the United Kingdom (Edinburgh, W Green & Sons 1957).

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

Suggested citation: P. O’Brien, ‘When Judges Misbehave: The Strange Case of Jonah Barrington’, UK Const. L. Blog (7th March 2013) (available at http://ukconstitutionallaw.org).

1 Comment

Filed under Judiciary

Tagged as Judicial Accountability, Judicial Misconduct, Judiciary

by Constitutional Law Group | February 28, 2013 · 7:42 pm

Carol Harlow: What price inquiries?

Twenty-five years ago, when the Justice-All Souls Committee published its review of English administrative law it asserted that, over the last forty years, inquiries had ‘been appropriated to the purposes of land use control to such an extent that the planning inquiry has become the typical inquiry’ (Administrative Justice – Some Necessary Reforms (Oxford: Clarendon Press, 1988 at 262). 49 of the 64 pages allocated to inquiries were duly devoted to planning inquiries, the rest being lumped together under the rubric of ‘Ad Hoc Inquiries’. Other than to remark that public inquiries might leave some individuals ‘with a sense of dissatisfaction’ the Committee had little to say about them. The same could hardly be the case today. Routine planning inquiries form around 5% of the Planning Inspectorate’s current workload, the majority of applications being decided on the papers, while the costly and contentious ‘Big Planning Inquiry’ has been replaced by an Infrastructure Planning Commission in 2008, which in turn had its functions transferred to the Planning Inspectorate, now an independent agency, by the Localism Act 2011. On the other hand, public space is increasingly cluttered with the reports of ‘ad hoc’ public inquiries, raising the question what purpose do they really serve?

Writing in 1992, embittered by his treatment by Lord Justice Scott during the Inquiry into connivance of ministers and public servants in the illegal export of arms to Iraq (HC 115 (1995/6), Lord Howe suggested that a public inquiry might serve six rather disparate objectives:

To establish the facts
To learn from events
To provide catharsis for ‘stakeholders’
To reassure the public
To make people and organisations accountable
To serve the political interests of government.

(G. Howe, ‘The Management of Public Inquiries’ (1999) 70 Pol. Quarterly 294)

Lord Howe’s grudge against Scott lay with his preference for inquisitorial procedure; Scott refused to allow legal representation of witnesses at the inquiry on the grounds of length and prolixity (though he did give some warning of the questions he would be likely to ask and promised to notify in advance anyone who would be criticised in the report). The dissatisfaction of public lawyers more generally lay precisely in the ‘length and prolixity’ of the proceedings. Looking back, it seems that the only interests served by the Scott Inquiry were those of the government. An inquiry that took three years and cost around £7 million – a high price for even a 5-volume Report, – ended with a confidence motion calling for the resignation of two ministers, won by the Major Government by just two votes.

Was this the shape of things to come? The Saville Inquiry set up by Tony Blair in 1998 to establish the truth about ‘Bloody Sunday’ (30 January 1972) when the British army opened fire on civil rights protesters in Londonderry, received 2,500 witness statements and compiled some 160 volumes of evidence, 13 volumes of photographs, 121 audiotapes and 110 videotapes, all of which had to be photocopied and sent to representatives of the ‘interested parties’. Its procedures were twice judicially reviewed. It did establish the facts but at what a cost; when the ten-volume report was published twelve years later (The Bloody Sunday Inquiry ) it had cost the taxpayer £195 million. It could, I suppose, be argued that on this occasion the delays were functional; they created space for a political settlement to be negotiated in the shadow of the pending report. Unsurprisingly, the report was welcomed by relatives of the victims but was less well received by the victims of IRA violence. It is indeed unlikely that it caused any of its readers to change their position and much the same is likely to be true of the Chilcot Inquiry into the Iraq War when finally it reports.

It was partly in reaction to the mounting costs of Saville that the Government embarked on new legislation – described as a consolidation measure to replace the seldom-used Tribunals of Inquiry Act 1921 – which became the Inquiries Act 2005. The Bill was hotly opposed on the ground that it bundled up too much power in ministers, including the power to suspend or wind up an inquiry; to prevent disclosure or publication of any evidence or documents given; and to bar the attendance of witnesses. It was feared that these powers would be used to prevent disclosure of material concerning the security services, most notably in a raft of inquiries under way into the Northern Ireland Troubles, which could be transferred into an inquiry under the Act – as did in fact occur with the Wright Inquiry and Inquiry into the death of Robert Hamill, originally set up under the Police (Northern Ireland) Act 1998 (costs around £33 million).

Inquiry costs

It has to be said that the Act has done little to cut the cost of public inquiries. According to a Post-legislative Assessment of the Inquiries Act conducted in 2010, three of the 12 inquiries held under the 2005 Act by 2010 had cost over £10 million: the Baha Mousa Inquiry cost £13 million and the Inquiry into the murder of Billy Wright in the Maze Prison cost over £30 million and took 5 years to complete.). Although the inquiry concluded that Wright’s death was due to the negligence of prison officers, his father, who had campaigned over many years for the inquiry, called it proof of ‘clear and unequivocal collusion’ – another example of incomplete catharsis. The problem here is that the general public is inclined to interpret accountability in terms of the number of heads that roll and is probably unaware that the Inquiries Act 2005 provides that an inquiry ‘is not to rule on, and has no power to determine, any person’s civil or criminal liability’, while the Coroners and Justice Act 2009 now bars any verdict that names individuals or points to their guilt. Such costs, only justifiable if the inquiries came to a clear and unequivocal conclusion, bear comparison with the escalating costs of prosecutions in serious fraud cases, said to prevent justice from being done (See Fraud Advisory Panel, Tackling the Crisis in The Prosecution of Serious Fraud.).

No doubt it was for cost-cutting motives that the inquiry into the murder of lawyer Pat Finucane in Northern Ireland in 1989 by Sir Desmond de Silva QC became a review of the evidence of two earlier inquiries held respectively by Lord Stevens and the Canadian justice, Judge Cory (Report of the Patrick Finucane Review by The Rt Hon Sir Desmond de Silva QC, HC 802 (2012/13). This procedure, which meant that he had no statutory powers of compulsion, was in the event justified by the fact that Sir Desmond was in no way inhibited from uncovering ‘new and significant information that was not available to Sir John Stevens or Justice Cory’; from publishing this material; and from coming up with the challenging conclusion that ‘a series of positive actions by employees of the State actively furthered and facilitated [Finucane’s] murder and that, in the aftermath of the murder, there was a relentless attempt to defeat the ends of justice’ (Report at [115]). But this conclusion, described by the Prime Minister, Davis Cameron as revealing ‘shocking state collusion’, failed once again to satisfy Finucane’s widow who, supported by Ed Miliband and Amnesty International, called the review ‘a sham, a whitewash and a confidence trick’ and demanded a full and independent inquiry (The Huffington Post (UK), 20 February 2013). In his remarks under ‘lessons for the future’ – which he had not been asked expressly to address – Sir Desmond wryly commented [113]: ‘Perhaps the most obvious and significant lesson of all, however, is that it should not take over 23 years to properly examine, unravel and publish a full account of collusion in the murder of a solicitor that took place in the United Kingdom’.

Overlap and underkill

This highlights a further deficiency of the public inquiry: the overlapping machinery for accountability and the number of disparate and piecemeal processes that are generated and the failure to provide ‘joined up justice’. The trouble is that the 2005 Act was not exclusive; it repealed some of the statutory powers to order inquiries and provided for a general code of procedure (The Inquiry Rules 2006, SI 2006/1838) but did not exhaust the powers of ministers and indeed anyone else who wishes to do so, to set up an inquiry. The prize (if that is the right word) should be awarded to the Hillsborough Disaster Inquiries into the death of 96 football supporters and injury of hundreds more at a match in Hillsborough stadium on 15 April 1989. By 2009, this had attracted: two internal police investigations into the conduct of South Yorkshire Police; an inquiry by Lord Justice Taylor, published in two parts in 1989 and 1990; an investigation by the Health and Safety Executive; a two-stage coroner’s inquest; an unsuccessful private prosecution following the DPP’s decision not to prosecute; a paper review of the evidence by Lord Justice Stuart Smith; and two civil actions, which caused outrage when police officers succeeded in claims for damages when victims’ relatives did not (Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310; Frost v Chief Constable of South Yorkshire [1999] 2 AC 455). It should be noted that the two Taylor Reports had blamed the police, while Lord Justice Stuart Smith, although castigated by the Hillsborough relatives, had picked up the fact that the police had rewritten many of the witness statements. Why did nothing happen? (Pause for rueful reflection).

Only when Andy Burnham, then Health Secretary, waived the 30-year non-disclosure rule on public records in 2009 and Home Secretary Jack Straw appointed an independent panel in 2010 to review the new evidence, did action commence. In line with modern practice, the Report of the Hillsborough Independent Panel, with all the documentation, is published (Hillsborough: The Report of the Hillsborough Independent Panel, HC 802 (2011/12). Agreed unanimously by the 8-member panel, the report was largely written by Professor Phil Scraton of QUB, a long-term supporter of the Hillsborough families. It once again blamed the police for tampering with witness statements and categorically denied there was any evidence to verify police allegations of exceptional levels of drunkenness or violence among Liverpool fans. Hillsborough – along with many other unsuccessful inquiries – attests to the very great difficulty of holding the forces of law and order to account through a public inquiry. Typically, the two officers most involved in the disaster both retired, having avoided conviction in the criminal prosecutions and disciplinary action for neglect of duty. A reopened coroner’s inquest is now awaited. A more encouraging message from Hillsborough concerns the very great importance for accountability of freedom of information legislation and the contemporary climate of transparency.

The sad case of ‘Baby P’, murdered by his mother’s boy friend while under the radar of Haringey social services, is somewhat different. His death was the subject of (1) an internal inquiry by Haringey Council into the performance of its social services department of which only the executive summary was published; (2) an external inquiry ordered by the minister (Ed Balls) in terms of the Children Act 2004 and conducted by Ofsted, the Healthcare Commission and the Chief Inspector of Constabulary; and a further inquiry by Lord Laming (below). There was also a Coroner’s inquest, finally adjourned as purposeless. Alongside, the legal system was functioning quite normally: the actual killers were convicted and imprisoned; the civil courts intervened to protect the position of Haringey’s Head of Children’s Services, summarily dismissed under pressure from the minister without the benefit of a hearing R(Shoesmith) v Ofsted and others [2010] EWHC Admin 852; [2011] EWCA Civ 642); and two doctors who had apparently missed the scale of Baby P’s injuries were disciplined by the BMC.

Lessons for the future?

More significant from the standpoint of the public inquiry is the report commissioned by the Secretary of State from Lord Laming. In 2002-3, Lord Laming had held another inquiry into the death of Victoria Climbié in Haringey: The Victoria Climbié Inquiry Cm 5730 (2003). Specifically asked to make recommendations as to ‘how such an event may, as far as possible, be avoided in the future’, Lord Laming had produced 106 recommendations over matters ranging from training of social workers to problems with ‘joined up governance’. His report was accepted and the recommendations found their way into government policy (See Every Child Matters: Change for Children (2004); Working Together to Safeguard Children: A guide to inter-agency working to safeguard and promote the welfare of children (2006)). Now Lord Laming was being asked to provide ‘an urgent report’ on the progress made across the country to implement effective arrangements for safeguarding children. His Report (Lord Laming, The Protection of Children in England: A Progress Report, HC 330 (2008/9), which this time contained only 58 recommendations, revealed how far from perfect the implementation of his Climbié report had been. It also highlighted the scale of the problem: of 11 million children living in England, 200,000 are at high risk of domestic abuse and violence, of whom 37,000 are the subject of a care order and 29,000 of a child protection plan. Haringey, be it noted, is a deprived and impoverished local authority ranking 5^th in London on the index of multiple deprivation, where in 2007, 36.4% of children were assessed as living in poverty; 176 were subject to a child protection plan and 476 were in care, amongst the highest figures in the country. Is it surprising that in these circumstances not all the Laming recommendations were implemented?

How far are inquiries being given the policy-making functions traditionally allocated to Royal Commissions and are they suited to such a role? Lord Laming is a distinguished and experienced social worker – though this was not enough to restrain criticism of his appointment as Chair of the Climbié inquiry, on the ground that his own department had once been criticised in a local ombudsman investigation. Perhaps a judge would have been more impartial – but then, what of expertise? The recent report into the failures of care at Mid-Staffordshire NHS Foundation Trust was the second, ‘generic’ stage of a non-statutory inquiry – another increasing trend in inquiry proceedings – demanded, we are told by the Chairman, shocked by the facts that he unearthed in his first, specific inquiry (Independent Inquiry into Care Provided by Mid Staffordshire NHS Foundation Trust January 2005–March 2009, HC 375-1 (2010/11)). The Report, which ran to more than 1770 pages, contained 290 recommendations, took 2 1/2 years and cost over £13 million (Report of Inquiry into Mid-Staffordshire NHS Foundation Trust Public Inquiry, HC 947 (2012/13)). Robert Francis QC is a barrister specialising in medical negligence. He appointed a panel of assessors, mostly with medical experience. One has nonetheless to query his qualifications to remodel our health services on the back of an inquiry into a single monumental failure. And will its fate be any different from the little-known Boorman review of health services in London (Full Report of the NHS Health and Well-Being Review (November 2009)) or for that matter Andrew Lansley’s hotly contested, and perhaps less well researched, proposals for remodelling health services, later to be remodelled in the Health and Social Care Act 2012?

The same may be said of Lord Leveson, a senior judge from the common law bar, invited to inquire into the ‘culture, practices and ethics of the press’ (Report into the Culture, Practices, and Ethics of the Press, HC 213 (2012/13). The inquiry was divided into bite-sized modules: specific investigations into phone hacking and other journalistic iniquities, which Lord Justice Leveson was undoubtedly well-qualified to conduct; his procedures were undoubtedly swifter and less costly, at just over £5 million, than the Bloody Sunday Inquiry. Module 4, which contained recommendations for ‘a more effective policy and regulation that supports the integrity and freedom of the press while encouraging the highest ethical standards’, is more contestable. Even though the support of assessors with considerable press experience renders this more palatable and more like a Royal Commission, the qualifications of the group to remodel the press are dubious, leaving space for the Government to reject its most important recommendation. Reassuring the public, making the press accountable or serving the political interests of government?

I believe that we are expecting too much from public inquiries. The Inquiries Bill was based on the report of a Select Committee (PASC, Government by Inquiry, HC 54 (2004/5) and a government consultation paper, ‘Effective Inquiries’. But these did not really address the many problems of ‘The Big Public Inquiry’ and contained no real examination of their functions as ‘an instrument of government’. We have been left with a heterogeneous set of arrangements for investigation, with overlapping functions and variable procedures. There is no real attempt at ‘joined up governance’. Each inquiry is limited by its terms of reference or statutory remit, which may overlap or may leave serious gaps. Our expectations are highly contradictory: establishing facts, for example, may do little for accountability; learning lessons for the future may require a diminution in accountability; and making organisations accountable may, as the Justice/All Souls Committee concluded all those years ago, provide little catharsis for individual victims. What remains all too often at very great cost to the taxpayer is serving the political interests of government.

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

Suggested citation: C. Harlow, ‘What Price Inquiries?’ UK Const. L. Blog (28th February 2013) (available at http://ukconstitutionallaw.org).

Event: Seminar on the impeachment of the Chief Justice of Sri Lanka 27 February 2013

The Bar Human Rights Committee invites UK Constitutional Law Group members and blog readers to attend a seminar on Wednesday 27 February 2013, 6-8 pm, on the impeachment of the Chief Justice of Sri Lanka. Further details are here.

Kate Malleson and Graham Gee: Who should have the final say in lower level judicial appointments?

The Crime and Courts Bill is making its way through Parliament. As noted in an earlier post, the Bill proposes to pass responsibility for appointing Circuit Judges and District Judges from the Lord Chancellor to the Lord Chief Justice. This represents a potentially significant power shift in judicial appointments, yet it has attracted very little attention. In this post, we outline some of our concerns.

Current Practice

The Judicial Appointments Commission currently selects a candidate for each vacancy on the Circuit and District Bench. The JAC is required by statute to consult with the LCJ about its proposed candidate. After consultation, the JAC recommends a candidate to the Lord Chancellor, who can accept or reject the recommendation, or invite the JAC to reconsider it. In practice, the Lord Chancellor almost always accepts the recommendation of the JAC, with only 5 vetoes from almost 3000 recommendations since 2006.

Recent Lord Chancellors have exhibited little interest in lower level judicial appointments. Jack Straw, for example, described the Lord Chancellor’s role in such appointments as “ridiculous”. Similarly, Ken Clarke described it as “ceremonial and ritualistic”, explaining that neither he nor his officials in the Ministry of Justice were in a position to “second-guess” the recommendations of the JAC because they did not know the candidates.

As successive Lords Chancellors have retreated from involvement with lower level appointments, the views of the LCJ on candidates selected by the JAC have assumed greater importance. Indeed, it was said that Ken Clarke would only accept a recommendation from the JAC that had first been approved by the LCJ.

It is perhaps not surprising that there was widespread support in response to the government’s consultation paper for transferring the final say in lower level judicial appointments from the Lord Chancellor to the LCJ. Many will have concluded, like the Lords’ Constitution Committee, that the change will “promote the independence of the judiciary and increase public confidence in judicial appointments”. The LCJ, after all, is said to be in a better position to understand the particular requirements of judicial office and, thus, to decide whether a person selected by the JAC should be appointed to the bench. We are less confident, however, about whether this change is welcome. We have three main concerns.

Diluting the Executive’s Role and Responsibility

One of the assumptions driving the proposal is that there is no longer a legitimate role for the executive in lower level judicial appointments. This assumption is questionable. The involvement of the Lord Chancellor injects a critical measure of democratic legitimacy into the process of selecting judges. Equally significantly, it encourages the Lord Chancellor to take seriously his or her statutory responsibility for the operation of the appointment system as a whole. Moreover, if democratic accountability is not channeled through the Lord Chancellor, will the LCJ account directly to Parliament for the operation of lower level appointments? If so, does this pose a greater threat to judicial independence than the involvement of a government minister?

Even if it is argued that at the lower ranks involving the Lord Chancellor is not needed on grounds of democracy legitimacy, the goal of improving judicial diversity demands continued ministerial involvement. Experience in the UK and in other countries shows that improving diversity does not happen automatically as the composition of the legal profession changes. Rather, it needs political will to drive forward changes, some of which might not be supported by judges. While we welcome the amendment introduced in the Lords to place the Lord Chancellor and the LCJ under a statutory duty to encourage judicial diversity, an amendment that mirrors the existing duty placed on the JAC, we worry that removing the Lord Chancellor from lower level appointments removes the opportunity for the exercise of political will to promote greater diversity in the judiciary at all levels.

Excessive Judicial Influence

In an important report published last year, Alan Paterson and Chris Paterson charted the level of judicial influence in senior judicial appointments. Similar concerns can be voiced in respect of lower level appointments. There are currently 5 judges on the JAC. Before instructing the JAC to begin a selection exercise the Lord Chancellor must consult with the LCJ. Each selection panel includes a judge. Judges draft the case studies that form an important part of the selection process. They write references for applicants. Finally, as noted above, the JAC consults with the LCJ about the candidate that it intends to recommend to the Lord Chancellor.

In other words, judges are already heavily involved in selecting their own colleagues. Shifting the formal decision-making power for lower tiers to the LCJ represents a significant extension of judicial influence in ways that might ultimately undermine, rather than bolster, public confidence in the judiciary.

A Changed Relationship between the JAC and LCJ

The proposal to transfer the veto power to the LCJ did not consider the implications of the LCJ more frequently refusing to accept recommendations from the JAC. We should perhaps expect more vetoes given that the rationale for the reform is that the LCJ will be better able to arrive at an informed evaluation of the JAC’s recommended candidate.

There might also be other reasons why the LCJ and the JAC could disagree about a recommendation. If, for example, the JAC decided to implement the tie break provisions under s.159 of the Equality Act 2010 to increase diversity, and if a future LCJ objected to this approach, we could expect to see the veto used more frequently. If such a scenario did arise, would the decision of the LCJ be subject to judicial review? If so, who would hear such a challenge? If the LCJ’s decision is not subject to judicial review, how, if at all, could it be challenged? Moreover, would the LCJ be required to give reasons for his or her decision?

These questions suggest that there are potential pitfalls which have not been thought through. It would not be surprising if the JAC sought to avoid them by only making recommendations likely to secure the approval of the LCJ. This then underscores our earlier concern – that judges potentially have too much influence in judicial appointments.

Finally, the LCJ has to date served as a guardian of the independence of the JAC. During its rocky first five years, the JAC came perilously close to being abolished by the Ministry of Justice; it experienced what one insider described as “a near death experience”. At the time when tensions between JAC and the MoJ were at their greatest, the LCJ spoke out publicly in defence of the JAC. He could do so without any potential conflict of interest because his role in the judicial appointments process was relatively limited. If in the future the LCJ can exercise a veto over the decisions of the JAC, it may be much more difficult to serve as a reliable guardian of the JAC.

Kate Malleson (Queen Mary) and Graham Gee (University of Birmingham) are collaborating with Robert Hazell and Patrick O’Brien (Constitution Unit UCL) on an AHRC-funded project on The Politics of Judicial Independence.

Suggested citation: K. Malleson and G. Gee, ‘Who should have the final say in lower level judicial appointments?’ UK Const. L. Blog (30th January 2013) (available at http://ukconstitutionallaw.org)

Gavin Phillipson: Debating the Abu Qatada affair

I watched the BBC’s flagship political debate Question Time last week and saw a panel of senior politicians from the three main parties plus UKIP debate the implications of the Abu Qatada affair with the audience. You can watch it here (starts at 8 mins 27 seconds) and I urge you to do so. I found the debate illuminating and alarming in equal measure; it made me reflect seriously on how precarious Britain’s interwoven system of international and domestic protection for human rights may actually be these days. It seems a long time ago that we naively thought that repeal of the Human Rights Act was “unthinkable” – now withdrawal from the ECHR itself must seemingly be taken as a serious possibility, depending on the outcome of the next election. The failure of the HRA to implant itself into our political, still less our popular culture was starkly apparent from the debate: I don’t think anyone even mentioned it. A statute that should surely be an important reference point in any discussion of a contemporary UK human rights issue has become so marginalised and misunderstood that it simply didn’t come up. Can one imagine American – or German – politicians discussing such an issue without mentioning their constitutional Bills of Rights – or Canadians, without mentioning the Charter? Also striking was the virtual unanimity in the panel and amongst the audience that Qatada should be on a plane to Jordan or at least that he should be behind bars – but apparently without the inconvenience of having to convict him of any offence. From a human rights perspective, it is perhaps hard to say which was the more depressing low-light of the debate: Harriet Harman for Labour seemingly calling for the return of internment of foreign nationals or Chris Grayling for the Tories explicitly leaving open the possibility of complete withdrawal from the ECHR. Every speaker was sure that Qatada was a dangerous terrorist (or least “not conducive to the public good” as Harman put it); despite the fact that he has never been convicted of a terrorist offence in this country, no-one allowed themselves to be troubled by the presumption of innocence.

The legal aspects of the latest judgment in the Qatada saga, delivered by SIAC, were ably analysed by Tom Hickman on this blog last week. The point of this post is not to consider this judgment, the Strasbourg one that preceded it, or the legal incongruities they throw up – something Hickman dissected well. Rather it is simply to point out how rapidly and radically human rights arguments seem to be losing the day – and to consider what lessons we can draw from this sobering snapshot of political attitudes towards rights in the post-Blair era.

The Question Time “debate”

What then were the lines taken by the speakers? Nigel Farage for UKIP called for the British Government to “show a bit of spine” and simply defy Strasbourg. He ended by saying – to loud applause – “to hell with the European Court of Human Rights”. Predictable enough, we might say. Tessa Munt, for the Liberal Democrats at least knew that the most recent judgment blocking Qatada’s deportation was by SIAC, not Strasbourg. But she devoted most of her comments not to supporting the rule of law or arguing for the sanctity of the anti-torture norm, but to say that it was “extraordinary” that Qatada was free to “walk the streets” during daytime hours and calling for him to be arrested. She didn’t say what for; the fact that in 10 years the prosecuting authorities have not thought it possible to charge Qatada with anything, suggesting that the evidence is simply not there, didn’t seem to trouble her. (Qatada was arrested and questioned in February 2001 about a German terrorist cell. Due to a lack of evidence he was never charged). As well as failing to defend the anti-torture norm, she made no attempt to stand up for either the Convention or the Strasbourg Court. And this from the pro-civil liberties, pro-European Liberal Democrats.

The Justice Secretary, Chris Grayling, as Lord Chancellor has particular duties by convention and under the Constitutional Reform Act 2005 to uphold the rule of law and judicial independence, so he was careful not to criticise any individual judges. He was clear that the government and other authorities had to obey rulings of a British court – but didn’t say whether the same applied to Strasbourg judgments. In relation to the European Convention he said repeatedly that the current “human rights framework” in Europe was not working and must be changed. He clearly and explicitly stated that outright withdrawal from the Convention was one of the options he was considering – the first time I have heard a sitting Lord Chancellor float this possibility. The clear reversal of the pro-Convention attitude of the previous Justice Secretary, Ken Clarke was starkly apparent.

Harriet Harman’s remarks on behalf of Labour were in some ways the most startling and depressing, both for their authoritarian tendencies and their seeming ignorance of the legal framework. While Grayling is a known right-winger and Euro-sceptic, Harman has a strong background in human rights – she was a legal officer for the National Council for Civil Liberties – now Liberty – and has taken the British Government to Strasbourg and won cases there concerning both contempt of court and the legal status of MI5. One might therefore have hoped for a robust defence of human rights and the rule of law from one of Labour’s most seasoned campaigners for civil liberties. She did say – almost in parentheses – that we shouldn’t deport people to countries where they could be tortured or have torture evidence used against them in court. But the main thrust of her remarks, like those of her Liberal Democrat colleague, was directed against the fact that Qatada was “walking around free”. But whereas Munt appeared to be calling for Qatada to be put on trial, Harman explicitly and repeatedly called for a return for internment. “We did have a system in the past” she said, for detaining non-British citizens whom the authorities consider a threat to national security but can’t deport because of the risk of torture. Later remarks clarified that this did not refer to detention with a view to deportation (lawful under Article 5(1)(f)) but rather to detention of those we know we cannot deport. It was also clear that it referred to those who we cannot convict in a court of law. Seemingly, therefore she was calling for something like the re-enactment of the powers under Part IV of the Anti-Terrorism Crime and Security Act 2001 to detain foreign terror suspects indefinitely without charge.

To have a Labour Shadow Minister calling for a return of this draconian and discredited power was alarming enough. Worst still was her seeming ignorance of the legal background (Harman has served as Solicitor General and holds the honorary title of QC). First, the introduction of detention without trial would plainly violate Article 5 of the Convention, and therefore require the UK to derogate from it (as in 2001), something in turn which requires there to be “a public emergency threatening the life of the nation.” But Harman never acknowledged this, or suggested that such an emergency exists. Second, although she was a member of the Government at the relevant time, she seemed not to know why the Part IV ACTSA power had been withdrawn. Harman said was that it was a judgment of the Strasbourg court that prevented detention without trial of foreign nationals. She said several times that the remedy for this was that all the European countries for whom this judgment was a problem should go “back to Strasbourg” and say “we must have the right to determine our own immigration processes,” including – seemingly – the power to detain those who cannot be deported. What is baffling about this is that it was of course a judgment by a British court – the then House of Lords in what we like to call the “famous” Belmarsh judgment – that found the Part IV indefinite detention powers unlawful under the Convention; the House found that even assuming that there was a public emergency, detaining only non-nationals was irrational, discriminatory and disproportionate. Yes, Strasbourg endorsed that finding five years later in A v UK (2009) but it is the Belmarsh judgment that led to the withdrawal of Part IV, and which still stands as a precedent binding on lower courts.

The third point relates to the grounds that Harman gave for detaining Abu Qatada without trial. She complained several times about the cost of keeping him under surveillance and concluded (this is a quote): “We wouldn’t feel unsafe and it would be cheaper.” Aside from the fact that these are somewhat flimsy grounds on which to introduce so grave a step as internment, Harman must surely know (mustn’t she?) that they could never justify a derogation. Finally, none of the politicians mentioned the UN Convention Against Torture, to which the UK is a signatory, Article 3 of which specifically prohibits deportation to torture.

In all of this, it was left to the non-politician guest – the CEO of Saatchi, Moray MacLennan, to, as he put it, introduce a small note of dissent by mildly querying why, if Qatada was such a notorious terrorist, he had never been charged with any criminal offence. In contrast, all the comments from the audience were hard-line. One man said, to applause, “we’re a soft touch –everyone in Europe knows we’re a soft touch”; an Asian teenage boy said firmly that foreign nationals engaged in terrorism-related activity should be locked up. Since he mentioned nothing about a charge, trial or a conviction, this appeared to be a pro-internment comment – also applauded. Meanwhile another man said simply that there must be some way of sending Qatada back to Jordan while another bizarrely said that Qatada’s fate should be decided by a referendum.

Comment

What are we to make of the above? Am I being alarmist, or overly pessimistic? After all, both the Labour and Liberal Democrat spokeswoman did say that we shouldn’t send Qatada to Jordan, which is something. Perhaps also, someone might say, Harman was not seriously calling for a return to internment (even though that is what she said). She just knew that Qatada and his rights are wildly unpopular and thought that anything other than sounding “tough” about him would be political suicide; besides Labour would never be held to her call for the return of internment. Perhaps even the Tories would never really pull us out of the ECHR – perhaps they just make vague threats to appease press and popular anger – about Qatada, and about prisoner’s voting rights. Even granted all these things, as a snapshot of contemporary political attitudes about rights, the Question Time debate was still deeply disturbing. Even if Harman didn’t mean what she said, the fact that she felt she had to call for detention without trial just to keep Labour on the right side of public opinion on the Qatada issue would still be deeply disturbing in showing where the centre of gravity now lies in public discussion of human rights.

Moreover, even if some of the Tories don’t really mean it when they threaten to pull out of the Convention (and I think at least some of them are in deadly earnest), their comments steadily chip away at the legitimacy of the Convention, rapidly making what was previously unthinkable – save for those on the really hard-core anti-European Right – a mainstream policy option. Such calls also steadily build up expectations amongst the right-wing media and sections of the public that this will actually happen. The Tories have now been making angry noises about the HRA and the Convention for a long time: they won’t be able to fob off their supporters, UKIP, the Sun and the Mail for much longer with Bills of Rights Commissions and vague promises of a “British” Bill of Rights. Even when politicians say things they don’t mean to appease an angry electorate it still confirms my suspicion that in many, perhaps most cases, when it comes to the rights of unpopular minorities like terrorism suspects and asylum seekers, votes lie in restricting, not upholding rights.

Finally, for those of us who do not vote Conservative, and are desperate to see a more progressive Government after 2015, we are left gloomily watching debates like this, and Yvette Cooper outflanking the Coalition to the right by repeatedly attacking the Government for removing the power to impose internal exile on terror suspects subject to a TPIM (which replaced Control Orders). The removal if this power, found to be peculiarly destructive of controlees’ lives, was one of the few concrete ways in which TIPMs improved upon Control Orders. Political constitutionalism calls for questions of rights to be determined not in the courtroom but through democratic means. If the only sure way to get a better government is to vote Labour, but Labour is in some respects at least, profoundly illiberal and authoritarian, then many of us will hold our noses and vote Labour anyway. But in what real sense is that a democratic determination of rights issues? When all politicians on a panel agree on an illiberal line, where is the real political debate about rights?

The purpose of this post is not argue that we should give up on political protection of rights and trust the judges instead. Regardless of whether our preferences in political philosophy lean towards Dworkin or Waldron, in a country such as ours at least the argument for rights has got to be won in the political sphere. This is so if only for the practical reason that, were our elected representatives to withdraw their support for the human rights project, the judges will have their legal rights-protecting tools – the ECHR and the HRA – taken away from them. While common law norms might stage a limited fight-back in such circumstances, ultimately it is the political domain that will decide whether the UK will continue to accept the judgments of Strasbourg, whether some prisoners get the vote, and whether we lock up terror suspects without trial because it’s cheaper and makes us feel safe. As Conor Gearty has said, we must therefore “fight the good fight” for human rights in the political realm. But it’s important to know just how uphill a struggle it will be – just how entrenched ignorance and contempt for human rights norms may be becoming – even these we like to think of as both elementary and central to our democracy.

Gavin Phillipson is a Professor of Law at Durham University.

Suggested citation: G. Phillipson, ‘Debating the Abu Qatada affair’ UK Const. L. Blog (24th November 2012) (available at http://ukconstitutionallaw.org).

15 Comments

Filed under Human rights, Judiciary

Tagged as Abu Quata, political debate

by Constitutional Law Group | November 20, 2012 · 9:52 am

Derek O’Brien: Judicial Independence in the Caribbean and Petitions Pursuant to Section 4 Judicial Committee Act

The case of Chief Justice of the Cayman Islands v The Governor and Judicial Legal Services Commission ([2012] UKPC 39) is, arguably, at least as interesting for the questions that the Judicial Committee of the Privy Council (JCPC) did not answer as for the ones that it did and I will, therefore, address both in this blog. I will begin with a brief overview of the unanswered questions, which help to explain the context in which the questions that the Board did answer arose.

The first relates to the extension of the appointment of a Justice of the Grand Court of the Cayman Islands. This is governed by s.96 of the Cayman Islands Constitution, which provides that the Governor may permit a judge of the Grand Court who has reached the age of 65 to continue in office until he has attained such later age, not exceeding the age of 70 years, as agreed between the judge concerned and the Governor, following the recommendation of the Judicial and Legal Services Commission (JLSC). The JLSC is an independent body comprising one ex offico member, being the President of the Court of Appeal, and seven other members appointed by the Governor including: a chairman and one other member, appointed in consultation with the Premier and Leader of the Opposition; a senior judge with recent knowledge of Cayman’s courts; two senior judges from another Commonwealth country or Ireland; and two lawyers qualified to practice in the Cayman Islands. Members of the Legislative Assembly and candidates for elections are disqualified from membership of the JLSC.

Justice Henderson, a Justice of the Grand Court, whose appointment expired in June 2011, by which time he would have been older than 65 (his appointment having preceded the coming into force of the 2009 Constitution), had asked the Governor in December 2010 for an extension of his appointment. The Governor, in turn, sought the advice of the JLSC, which recommended that there was no basis upon which it was necessary in the interests of the administration of justice for Justice Henderson to continue in office beyond the age of retirement, and the Governor duly notified him that he would not be extending his appointment. The Chief Justice objected to this decision, arguing that the JLSC had wrongly approached the question of the extension of Justice Henderson’s appointment on the basis that it required ‘exceptional circumstances’ before an extension would be granted and, as a result, had reached an incorrect interpretation of s.96, bearing in mind the way that the section was expressed and the need to preserve judicial independence so that Justices of the Grand Court enjoyed security of tenure free from discretionary intrusion by the Executive.

The second question relates to the power of the Governor, acting in accordance with the advice of the JLSC, to exercise disciplinary control over judges. In early 2012, the JLSC published a Code of Conduct and a Complaints Procedure in relation to the Cayman Islands judiciary, which permits the JLSC after it has investigated a complaint against a judge to advise the Governor that the case calls for the exercise of such powers of disciplinary control short of removal from office as are conferred upon the Governor by s106 (1) of the Constitution, which empowers the Governor to exercise disciplinary control over the judiciary. The Chief Justice objected to this aspect of the Complaints Procedure on the ground that the Constitution did not permit the Governor to ‘impose disciplinary sanctions short of removal.’ I will return to both of these questions later, but first I must sketch out the background to the questions that were answered by the Board.

Ordinarily, it would be expected that in the first instance the two questions outlined above would have to be answered in the Grand Court of the Cayman Islands by way of judicial review proceedings. The Chief Justice, however, instead petitioned Her Majesty to refer the two questions directly to the JCPC for advice, which she did pursuant to pursuant to s.4 of the Judicial Committee Act 1833, which provides that:

“It shall be lawful for his Majesty to refer to the …judicial committee for hearing or consideration any such other matters whatsoever as his majesty shall think fit; and such committee shall thereupon hear or consider the same, and shall advise his Majesty thereon in manner aforesaid.”

The Governor having objected to the substantive questions raised in the Petition being dealt with by the JCPC before they had been considered by the Grand Court of the Cayman Islands, the JCPC was obliged to consider whether it was open to it to decline to rule on issues raised in a Petition referred to it by the Monarch and, if so, the circumstances in which it would be appropriate for it to do so?

In answer to the first of these questions the Board concluded that in the absence of any clear authority on the point it was open in principle to the Board to advise that it was inappropriate to provide substantive answers to the issues raised in a s.4 Petition, if it considered that this was the right course to take. Not only would it be unattractive for a tribunal to be precluded by law from answering a question referred to it in terms which it considers to be right, but it was also highly unlikely that s.4 was intended to preclude the Board from considering this very issue.

This still left the question of whether this was the right course to take in the instant case and in the Board’s view it was because it would be inappropriate, in the absence of special factors, to consider issues raised in a s.4 petition when, as here, those issues could be raised in the first instance by way of ordinary proceedings in the courts of the territory in which the issues arose. This is, in part, because in a tiered court system the conclusions and reasonings of a higher tier court are likely to be better than that of a lower tier court, as the arguments of the parties tend to become refined and improved as the case progresses up the system, and the judges in a higher tier court benefit from the reasoning of the lower tier courts. It is also in part because respect for the courts of the territory concerned requires that they should have the opportunity to express a view before the JCPC is seised of the case.

But were there any special factors in the instant case, which might justify the questions raised by the petition being considered substantively by the JCPC? In the Board’s view there were none. The Board was not persuaded by the Chief Justice’s argument that no permanent judge of the Grand Court could deal with the issues raised by the petition because they all supported the position of the Chief Justice and, besides, had an interest in the outcome. As the Board pointed out, it was open to the Governor to appoint a temporary judge under s.97 of the Constitution to hear the judicial review application; the Governor having made it clear that in such a case he would ask the Lord Chief Justice of England and Wales to nominate a temporary judge for that purpose. The Board also rejected the Chief Justice’s other arguments, namely: that it would be difficult to find a suitable Court of Appeal panel; that the issues raised by the Petition were of such high constitutional importance that they ought to dealt with by the Board; that the Board ought to give weight to the wishes of the Chief Justice to have the Petition determined by the Board, and that it would save time and costs to do so. In the Board’s view, the fact that the matters raised were of high constitutional importance only reinforced their conclusion that they ought to be dealt with, initially, by the Grand Court; and whilst weight must be given to the Chief Justice’s wishes, this was counterbalanced by the fact that the Governor did not wish the Board to rule substantively on the Petition.

All of this means that the two substantive questions raised by the Petition will now have to be considered in the first instance by the Grand Court. In dealing with the first of these questions the Grand Court may wish to have regard to the constitutional position in other countries in the Commonwealth Caribbean. In most of these there is simply no possibility of extending a judge’s appointment once they have reached retirement age save for example, for the purposes of delivering a judgment in proceedings that have already begun. This is presumably to avoid the incentive that the prospect of such an extension might offer to judges to hand down judgments that favour the government. However, in those few countries in which an extension of a judge’s appointment is permitted by the Constitution – The Bahamas, Barbados, Belize and the member states of the OECS (Antigua, Dominica, Grenada, St Lucia, St Kitts and St Vincent) – it is notable that there is considerably more political input than is contemplated by the provisions of the Cayman Constitution to which the Chief Justice objected . Thus, in the Bahamas and Barbados, decisions about extending a judge’s appointment are taken more or less exclusively by the Prime Minister. Though the Prime Minister is required to consult with the Leader of the Opposition this is usually no more than a formality. In Belize, decisions about the extension of the Chief Justice’s appointment are taken by the Prime Minister after consultation with the Leader of the Opposition, and in the case of the other judges extensions are granted upon the advice of the JLSC, but require the concurrence of the Prime Minister after consultation with the Leader of the Opposition. Amongst the OECS countries the power to extend a judge’s appointment ostensibly lies with the JLSC, but the JLSC can only act with the concurrence of the Heads of Government of all the member states. Viewed from a comparative perspective then the position under the Cayman Constitution, where the extension of a judge’s appointment must have been recommended by the JLSC, arguably affords considerably more protection against political manipulation than is afforded in those neighboring countries that permit extensive Prime Ministerial input into decisions about the extension of a judge’s appointment.

The Chief Justice’s objection to the Governor’s powers to impose disciplinary sanctions upon a judge short of removal, however, looks at first glance much stronger from a comparative perspective, since such a power does not exist in any other Commonwealth Caribbean country. The closest parallel is, possibly, Guyana where a judge, who has persistently failed to give written or oral decisions and reasons for the decisions within the period prescribed by the Time Limit for Judicial Decisions Act 2009, may be notified that if he persists in his default action may be taken to remove him from office. However, it is arguable that at the time the independence constitutions of these countries were drafted there was a quite different understanding of the concept of judicial accountability and that they are not, therefore, the best guide to current practice.

If the Grand Court looks outside the Commonwealth Caribbean, however, it will see that a power to discipline judges short of removal from office exists in a number of common law countries, such as the United States, Canada and the United Kingdom. It might also note, however, that in these countries the disciplinary process short of removal is kept very much in-house, being administered entirely by the judiciary. This, at least, addresses the objection, based on the principle of the separation of powers, that the power to impose sanctions short of removal should not be vested in someone like the Governor, who is the Head of the Executive branch. But this is not the only possible objection to the existence of such a power, which has also been criticised by some for having a chilling effect on the capacity of judges to render impartial justice because it invites dissatisfied litigants to harass judges who rule against them (Irving R Kaufman, ‘The Essence of Judicial Independence,’ Columbia Law Review, Vol.80, No.4 671-701).

It remains to be seen whether the Chief Justice’s objections are upheld by the Grand Court. It seems likely, however, based on constitutional practice elsewhere in the Commonwealth Caribbean, that the Grand Court will not regard the involvement of the Governor in decisions about a the extension of a judge’s appointment as fatal. Moreover, while there may be principled objections to the imposition of sanctions upon judges short of removal, precedents for the existence of such a power can be found in a number of other jurisdictions, including the UK.

Derek O’Brien is Principal Lecturer, Law School, Oxford Brookes University.

Suggested citation: D. O’Brien, ‘Judicial Independence in the Caribbean and Petitions Pursuant to Section 4 Judicial Committee Act’, UK Const. L. Blog (20th November 2012) (available at http://ukconstitutionallaw.org).

1 Comment

Filed under Comparative law, Judiciary

Tagged as Cayman Islands, Judicial Independence, Privy Council

by Constitutional Law Group | November 14, 2012 · 4:35 pm

Tom Hickman: The Return of Abu Qatada (to the streets of London)

The Abu Qatada saga is proving to be a very expensive and very embarrassing headache for the British Government. Following his narrow victory in Strasbourg in January, in which he succeeded only under Article 6, many assumed that the Government would secure the necessary concessions from the Jordanian Government that would enable him to be returned. Instead, yesterday he was back on the streets of London rather than the streets of Amman, on bail, after SIAC ruled on Monday that any return to Jordan would still violate Article 6.

Abu Qatada’s victory has left the Home Secretary—who rashly stated in April that Abu Qatada would soon be on a plane back to Jordan—with egg on her face. The Government has said it will appeal SIAC’s ruling and the Prime Minister has lamented that he believed his Government had obtained the “right assurances” from the Jordanian Government.

Apart from the cost and the embarrassment, the saga is of great importance in constitutional terms because it poses one of the most significant threats to the UK’s human rights legislation, prompting calls for scrapping the Human Rights Act and re-defining our relationship with the Strasbourg Court.

Although such calls have been noisily repeated since Monday, SIAC did not decide any issue of principle, nor indeed did the case turn on assurances given by the Jordanian Government (no matter what the Government says).

The point at issue was very narrow. There was no dispute as to the legal test to be applied: it was agreed that the Commission should ask itself whether there is a real risk that evidence derived from torture would be used upon retrial of Abu Qatada in Jordan (It will be recalled that Abu Qatada was convicted in his absence of involvement in a series of explosions in 1998 and a foiled conspiracy in 2000 both against Western and Israeli targets in Jordan). There was no dispute that there would be a retrial in Jordan. There was no dispute that there was a real risk that the statements made by two individuals who had been co-defendants in the proceedings had been given under torture. The question purely and simply boiled down to whether there was a real risk that those statements would be admitted in the retrial.

Thus, one of the most important and high profile human rights cases turned entirely on one of the most arcane issues of recent years: a question of Jordanian criminal procedure on the admissibility of evidence of co-defendants in the Jordanian State Security Court.

Questions of foreign law are becoming increasingly prevalent in public law cases. Foreign law issues have in the past mainly been confined to private law disputes, where contract or tort actions are pursued in the UK courts but where foreign law applies. UK courts and tribunals are perfectly comfortable examining foreign law and there are very well established ways of doing it.

SIAC considered expert evidence from two Jordanian lawyers. The UK Government relied upon a lawyer who used to practice in the State Security Court. Abu Qatada’s legal team relied upon expert evidence from the most senior serving member of the State Security Court. The court accepted the evidence of the latter.

There were two material points. On point one, SIAC held that the two former co-defendants could not give fresh evidence under oath in the State Security Court but that their previous statements to the Jordanain prosecutor could be adduced under the Article 148 of the Jordanian Code of Criminal Procedure in the retrial (“CCP”) (These are the statements which it is said were made under torture.)

On the second point, SIAC held that the prevailing approach of the State Security Court to exclusion of evidence which is claimed to be the product of torture is to require individuals to prove it. An amendment to the Constitution in 2011 prohibiting reliance on evidence obtained by torture had not altered this approach (it would, SIAC held, probably require a decision of the Court of Cassation for the approach to change). There was thus at least a real risk that the statements would be admitted because the passage of time meant the burden of proof would be “difficult to discharge” and allegations of torture had previously been rejected, despite significant evidence to the contrary.

On this basis SIAC ruled against the Home Secretary, and then released Abu Qatada on bail given the absence of any reasonable prospect of imminent removal.

Questions are being asked. The most immediate is: can the Government appeal? The answer is: with great difficulty. In English law questions of foreign law are treated as questions of fact. Appeal from SIAC lies only on questions of law. Not only was SIAC rigorous in its approach to the foreign law issue, the Government can hardly have been confident about its expert evidence. As SIAC recorded, the arguments advanced by the Government’s expert had not been included in his evidence to the Strasbourg Court and the opinions of his on which the Government relied had been “formed relatively recently”, i.e. conveniently since Strasbourg’s ruling. The Government’s expert also acknowledged that other defence lawyers that he had consulted did not share his views, and they were untested and not representative of past practice. By contrast Abu Qatada’s expert, apart from being better qualified and well regarded by the British Government, had consistently propounded his views as well as, remarkably, having provided “unstinting assistance” to the British Government since the Strasbourg ruling.

It should also be emphasised that the only other issue in the case was an assessment of risk based on the expert evidence, and questions of risk are also questions of fact.

In short, whilst it is not inconceivable that a question of law might be found here, the judgment provides thin gruel for the Government’s lawyers. SIAC took a conventional approach to making findings of foreign law on which the case turned.

The next question is: how can Abu Qatada be returned? The answer to this question is that it would require an amendment to the CCP to alter the burden of proof. The Government is not in a particularly strong position to press for this given that the position of Jordanian law as it stands is not significantly different from the approach contended for by the Government and accepted by the House of Lords in A (No 2) [2006] 2 AC 221, that is to say, proof of torture on balance of probabilities. The only other options appear to be an undertaking by the prosecutor not to rely on the evidence of the two former co-defendants or not to re-try Abu Qatada. Both these options would also require amendments to the CCP and may be unrealistic.

Given the limited options, the next question is: is there a problem with human rights law? There is no doubt that in this exceptional case the Government is stuck between a rock and a hard place. Some may question Strasbourg’s decision in Abu Qatada v UK that the use of evidence obtained by torture automatically constitutes a flagrant denial of justice in a foreign state irrespective of the significance of the evidence to the trial and the legal protections in the country to ensure that such evidence is excluded. Prior to Abu Qatada v UK, the Strasbourg Court’s position was that the use of such evidence “raises serious issues as to the fairness of the proceedings”. The further step taken in Abu Qatada v UK, that its use is inevitably a flagrant denial of justice, however it comes about, results in the paradox that a person has a right in this country not to be subject to a trial in a foreign state in which there is a real risk that evidence deriving from torture will be deployed; whereas a person in this country has no equivalent right in respect of a trial in this country, that is to say, it is not the law here that a hearing is automatically unfair if there is a real risk that evidence obtained by torture would be admitted. The fact that the Strasbourg jurisprudence may be moving towards recognising the latter right does little to reduce the oddity, not least because it still gives rise to the question of how ‘domestic’ and ‘foreign’ rights could be the same.

But an exploration of the pros and cons of the Strasbourg position would require a much more thorough analysis than can be given here. The Strasbourg jurisprudence is aimed at real and practical problems in respect of states in which torture is a deeply ingrained part of the system, and known to be so by the UK and other Contracting States. From SIAC’s account of the evidence against Abu Qatada in Jordan it seems doubtful that even a higher threshold would much assist the Government in his case. The confessions of the two former co-defendants would, it seems, form a central part of the case against Abu Qatada and there are very serious question marks indeed over those statements, which, nonetheless, are probably now beyond resolution one way or the other. Insofar as Abu Qatada remains at risk of a trial in which those statements are deployed as the case against him it is difficult to object to a human rights law which refuses to deport him. Objecting, nonetheless, is what many people are doing.

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

Suggested citation: T. Hickman, ‘The Return of Abu Qatada (to the streets of London)’, UK Const. L. Blog (14th November 2012) (available at http://ukconstitutionallaw.org).

2 Comments

Filed under European Union, Human rights, Judiciary

Tagged as Abu Qatada, Article 6 ECHR, European Court of Human RIghts, Human Rights Act, Human Rights Act Reform, Relationship Between European and National Law, SIAC

Category Archives: Judiciary

Kate Malleson: Is the UK the only OECD country that does not have excellent women lawyers fit for our highest courts?

Dawn Oliver: Parliamentary Sovereignty in Comparative Perspective

New Zealand

Sweden, Finland and the Netherlands

The USA

Conor Gearty: The Important Inconvenience of the Rule of Law

Patrick O’Brien: When Judges Misbehave: The Strange Case of Jonah Barrington

Carol Harlow: What price inquiries?

Event: Seminar on the impeachment of the Chief Justice of Sri Lanka 27 February 2013

Kate Malleson and Graham Gee: Who should have the final say in lower level judicial appointments?

Gavin Phillipson: Debating the Abu Qatada affair

Derek O’Brien: Judicial Independence in the Caribbean and Petitions Pursuant to Section 4 Judicial Committee Act

Tom Hickman: The Return of Abu Qatada (to the streets of London)

Email Subscription

Follow us on Twitter

Blogroll

Archives

Recent Posts

Categories

Tags

Follow “UK Constitutional Law Group”