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Tom Hickman: Further Concerns about the DRIP Bill

tomIn a blog post on Monday I expressed concerns about the lack of time for proper scrutiny of the changes to be brought in by the DRIP Bill.

Towards the end of that blog I expressed puzzlement at a change to be made to the definition of “telecommunications system” in RIPA. This definition is central to the scheme of RIPA and is the basis for many of the powers therein.

The Governments’ suggestion that this change is intended to ensure that services like webmail are caught is not particularly persuasive. The explanatory material provided no further explanation.

Recall, the current definition of telecommunications service contained in section 2 of RIPA states that:

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

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

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

One explanation for this change presents itself. Telecommunications along with many other companies often store vast amounts of data about their customers and the usage of the company’s services for their own business purposes. The data can be stored for many years and are used for the company’s own business analysis purposes (think of Amazon analysing the purchasing habits of customers). Such data can be enormously valuable to the company.

It is stored in “data warehouses” or other storage facilities and is accessed in a variety of ways by increasingly sophisticated data search and management tools.

In addition, other data are held and used on other “platforms” within telecommunications companies for the companies’ operational purposes.

Such data may no longer be on the individual systems of users, such as in their email archive or records (which companies might not retain for very long). It does not necessarily include all of the data that would be of interest to law enforcement or intelligence agencies.

But the intention of the change to the definition of telecommunications services is to provide access to such platforms and if such platforms hitherto did not fall under RIPA then this amendment would represent a substantial change in the law. It would also potentially allow access to large amounts of data going back well over a year.

This suggestion is necessarily put forward on a tentative basis given the absence of time that has been allowed for people to scrutinise the Bill or consider its implications.

But two conclusions do seem warranted.

First, these thoughts underscore how unsatisfactory it is for legislation of this nature to be presented to Parliament on a fast-track basis as a behind-closed-doors “done deal”.

I am not of course suggesting that access to such platforms would necessarily be unjustified, my point is that it needs proper scrutiny and Parliament needs to know what it is voting on.

Secondly, history may identify this amendment as the most significant part of the DRIP Bill, although it is the one being given the least attention.

The DRIP Bill will pass through the House of Lords today and there will be no further opportunity for Parliamentary scrutiny of its terms.

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

(Suggested citation:  T. Hickman, ‘Further Concerns about the DRIP Bill’ U.K. Const. L. Blog (16th July 2014) (available at http://ukconstitutionallaw.org/).

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The first hole: retention of Communications Data

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The second hole: interception of communications in other countries

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

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

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

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

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

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

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

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

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

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

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

A third hole: creating, managing and storing messages online

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

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

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

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

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

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

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

Concluding thoughts

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

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

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

 

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

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

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Event: Prisoner Voting and the Constitution

Vincent_Willem_van_Gogh_037Prisoner Voting and the Constitution

Co-sponsored by the Study of Parliament Group and the United Kingdom Constitution Law Association

18:00-19:30 Wednesday 18 June 2014 – The Moot Court, Faculty of Laws, University College London

Speakers:

Professor Jeremy Waldron (Chichele Professor of Social and Political Theory and Fellow, University of Oxford, All Souls College; University Professor, NYU School of Law)

Associate Professor Aileen Kavanagh (Faculty of Law, University of Oxford and Tutorial Fellow, St Edmund Hall)

Colin Murray (Senior Lecturer, University of Newcastle; Specialist adviser to the Parliamentary Committee on the Draft Voting Eligibility (Prisoners) Bill)

Dr Michael Pinto-Duschinsky (Senior Consultant to Policy Exchange, Constitutional Affairs)

Chair:

Alexander Horne (Legal and Senior Policy Adviser, Scrutiny Unit, House of Commons; Legal Adviser to the Parliamentary Committee on the Draft Voting Eligibility (Prisoners) Bill)

 

While the media has often focused on the perceived unpopularity of extending the franchise to some prisoners and on criticising the role of the European Court of Human Rights, the debate on prisoner voting has also highlighted a number strengths and weaknesses of the United Kingdom’s constitution. The aim of this event is to identify and debate the constitutional issues that have emerged since the Grand Chamber judgment of Hirst (no 2).

 

The debate around prisoner voting has raised important questions on a number of different elements of the constitution including: the Human Rights Act 1998, the European Convention on Human Rights and the European Court of Human Rights, parliamentary sovereignty, the rule of law, pre-legislative scrutiny and Parliament’s relationship with the Government. The event brings together some of the leading academic commentators on the constitution, human rights and prisoner voting to provide some answers to these questions.

Please register via the Eventbrite page:

 

https://www.eventbrite.co.uk/e/prisoner-voting-and-the-constitution-tickets-11399531305 

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UKCLA/Devolution Club: Comparing Premierships: A Tale of Two Countries

UKCLA logoAll members of the UKCLA are invited to the annual UKCLA/Devolution Club event to be held at Italian Cultural Institute, 39 Belgrave Square, London SW1X 8NX

Monday 9th June 2014   5.m. -7.15pm

The 9th Italian-British Conversation

‘Comparing Premierships: A Tale of Two Countries’

Introduced by

ALESSANDRO TORRE – CHAIRMAN OF THE DEVOLUTION CLUB

Speakers:

GEORGE W.JONES – LONDON SCHOOL OF ECONOMICS

ROBERTO TONIATTI – UNIVERSITY OF TRENTO

Discussant:

PETER LEYLAND – LONDON METROPOLITAN UNIVERSITY

Chair: SEBASTIAN PAYNE – UK CONSTITUTIONAL LAW ASSOCIATION

Drinks will be served after the talk at the Italian Institute

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Dublin City University: Call for Papers – Judges, Politics and the Irish Constitution.

On September 4th 2014, the School of Law and Government, Dublin City University, hosts its first annual Law and Government conference. The theme for the conference is Judges, Politics and the Irish Constitution. In the context of the recent Constitutional Convention, now is an apt time to reflect on the role of politics and law in Irish constitutionalism.The conference will bring together academics, including postgraduate students; practitioners; judges and politicians. It will combine academic papers with more reflective pieces. We welcome submissions from any discipline on issues relevant to the conference theme. Papers should address aspects of the theme in at least one of the following categories:

  • Irish constitutional law in socio-legal perspective: law and disadvantage
  • Irish constitutionalism in historical and comparative perspective: constitutional transitions and institutional design
  • Socio-economic rights in Irish constitutional law: practice and reform
  • Irish constitutional law and the impact on politics and the political process
  • Legal theory and adjudication in Irish constitutional law

Abstracts for papers should be submitted to the conference conveners at the following email address: DCUlawgovconf@gmail.com. They should be submitted not later than May 19th 2014. Abstracts should be a maximum of 500 words and should fit within the conference theme. While practice-oriented papers are encouraged, they should engage with more general historical, socio-legal or theoretical dimensions. As well as considering the academic merit of the abstracts, the assessors will also consider whether the proposed paper fits with the general theme and specific categories. We aim to notify applicants of our decisions by May 30th 2014.

Manchester University Press will publish a peer-reviewed edited volume comprising the best papers. This volume will include a minimum of one postgraduate paper. We also intend to produce a dedicated edition of the Socio-Legal Studies Review comprising other relevant papers arising from the conference

There will also be a prize for the best paper by a postgraduate student.

Those who are interested in having their paper considered for inclusion in the edited volume, the special edition or the best postgraduate paper prize – are asked to send full versions of their papers by 22nd August 2014.

Follow us on Twitter @LawGovDCU

Confirmed speakers

Maire Whelan, Attorney General

Adrian Hardiman, justice of the Supreme Court

Catherine McGuinness, former justice of the Supreme and High Courts and Senator

Gerard Hogan, judge of the High Court

Ivana Bacik, Professor of Law, Trinity College Dublin

Colm O Cinneide, Reader in Law, University College London

Gerry Whyte, Professor of Law, Trinity College Dublin

Further speakers to be confirmed.

Convenors

Dr. Laura Cahillane, School of Law and Government, DCU

Dr. Eoin O’Malley, School of Law and Government, DCU

Ms. Claire-Michelle Smyth, School of Law and Government, DCU

Dr. James Gallen, School of Law and Government, DCU

Dr. Tom Hickey, School of Law and Government, DCU

Key dates

May 19th        Submit abstract

May 30th         Notification from assessors

August 22nd   Submit full paper*

September 4th Conference

*mandatory for those wishing to have papers considered for MUP edited volume and/or Socio Legal Studies special edition and for the best postgraduate paper prize.

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Grégoire Webber: On the ‘lawful’ premise and prostitution

gregoi7‘It is not a crime in Canada to sell sex for money.’ This factual assertion opens the unanimous judgment of the Supreme Court of Canada in Bedford v Attorney General, 2013 SCC 72. It is the first and a repeated premise leading to the judgment’s conclusions: the criminal prohibitions on keeping a bawdy-house, living on the avails of prostitution, and communicating in public with respect to a proposed act of prostitution are unconstitutional for violating the rights to life and security of the person. This post evaluates the factual premise that prostitution is a lawful activity and, more generally, the significance of liberties in the law.

The Supreme Court places much significance on the liberty in law to sell sex for money. Here is a sample:

[59] “Here, the applicants argue that the prohibitions on bawdy-houses, living on the avails of prostitution, and communicating in public for the purposes of prostitution, heighten the risks they face in prostitution — itself a legal activity.”

[60] “The prohibitions at issue do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks.”

[61] “It is not an offence to sell sex for money.”

[62] “Working on the street is also permitted, though the practice of street prostitution is significantly limited by the prohibition on communicating in public.”

[87] “… even accepting that there are those who freely choose to engage in prostitution, it must be remembered that prostitution — the exchange of sex for money — is not illegal.”

[89] “The impugned laws deprive people engaged in a risky, but legal, activity of the means to protect themselves against those risks.”

The judgment’s repeated assertion that there is a legal liberty to sell sex for money draws on the unstated premise that there is a moral quality to this liberty or to all liberties in the law, such that that which is not criminally prohibited is therefore just, choice-worthy, and not to be discouraged by government or law. The unsound character of this reasoning is evident from an examination of some fundamental juridical categories.

A ‘liberty to’ is the opposite of a ‘duty not to’. That it is not a crime to sell sex for money is equivalent to the absence of a criminal duty not to sell sex for money. The absence of a criminal duty need not imply the absence of another (non-criminal) legal duty: for example, my criminal liberty to break my contract with you does not imply my legal-contractual liberty to do so. More fundamentally, the absence of any legal duty need not imply the absence of a moral duty; equivalently stated, the presence of a liberty in law need not imply the presence of a liberty in morality.

Consider how foreign the Court’s repeated emphasis on the criminal liberty to sell sex sounds when other legal liberties are substituted for it:

The applicants argue that the prohibition on assault heightens the risks they face in bullying – itself a legal activity.

Adultery is a risky – but legal – activity.

It is not an offence to lie to one’s friends.

In each of these cases, the legal liberty to engage in the activity confronts a moral duty not to. It is a moral wrong to bully another, to commit adultery, to lie to one’s friends, a wrong in no way camouflaged by the absence of a legal duty not to do so.

Of course, many legal liberties track moral liberties, among them: the liberty to contract (itself bounded by legal and moral duties not to contract with certain persons and over certain matters); the liberty to express oneself (itself bounded by legal and moral duties not to defame, to libel, falsely to shout fire in a crowded theatre, . . .); and the liberties to assemble peacefully, to associate, to practice one’s religion or none at all, to follow one’s conscience, to . . . (all bounded by . . .).

The mere presence of a liberty in the law does not conclude the question whether there is a liberty in morality. And yet, the Supreme Court of Canada’s regular reference to the legal liberty to sell sex is intended to convey that it equated the absence of a legal duty not to sell sex with the absence of a moral duty not to do so, and, therefore, the absence of any ground to discourage the sale of sex.

This resulted in a misguided characterisation of the relationship between the criminal liberty to exchange sex for money and the criminal duties not to keep a bawdy-house, to live on the avails of prostitution, or to communicate in public with respect to a proposed act of prostitution. The Court reasoned that the criminal duties rendered the ‘lawful activity [of prostitution] more dangerous’, drawing the following ‘analogy’:

[87] “An analogy could be drawn to a law preventing a cyclist from wearing a helmet. That the cyclist chooses to ride her bike does not diminish the causal role of the law in making that activity riskier. The challenged laws relating to prostitution are no different.”

The Court’s analogy is telling. One has both a legal and a moral liberty to ride one’s bike (as bounded by duties not to do so on another’s property, on the motorway, etc). The assumed persuasiveness of this analogy rests on the Court’s unstated and undefended premise that one also has a moral liberty to sell sex for money. Absent that premise, the analogy can do no work, just as it would do no work if appealed to in support of the legal liberties to bully, to commit adultery, and to lie to one’s friends.

How then to characterise the relationship between the criminal liberty and criminal duties? The Attorneys General of Canada and of Ontario argued that the criminal duties were to be understood as seeking to deter prostitution (para. 131). The Court dismissed the argument, affirming that the record established that ‘the [only] purpose of the prohibition[s] is to prevent community harms’, with ‘community harms’ to be understood as excluding any harms inherent to the sale of sex for money (para. 131; see also paras. 132, 137-138, and 146-147). This misunderstanding was directed by the Court’s unwillingness to divorce a legal liberty from a moral liberty.

Consider this alternative characterisation of the relationship between the criminal duties surrounding prostitution and the criminal liberty to sell sex for money.[1]  Prostitution is a moral wrong. It is harmful both to the prostitute and to the other engaging in the contracted sexual activity. One has a moral duty both not to sell and not to purchase sex. To do so is inimical to the community’s common good and a violation of equality and dignity. Prostitution is, therefore, an act worthy of legal prohibition. However, the act is also deeply personal and if truly private not one that the law should seek to regulate directly if undertaken between adult persons. Rather, the law should frustrate prostitution by indirect means, chief among them: prohibiting keeping a bawdy-house, living on the avails of prostitution, and communicating in public with respect to a proposed act of prostitution. Such prohibitions of relatively public acts pursuant to prostitution are not to be analogised to the reckless or purposeless regulation of a moral liberty (as would be the prohibition against wearing a helmet when riding a bicycle); their objective is to frustrate with a view to eliminating a deeply private, but immoral activity that wrongs the prostitute, the client, and the community. In doing so, the legislature can be taken to have acted on the view that failure to intervene to frustrate prostitution would be an injustice against those persons for whom it is responsible, persons including the seller and the purchaser of sex.

It may be that these prohibitions are to be abandoned in favour of an alternative approach to the wrong of prostitution. I take no position on that question, except to say this: it is a question not best approached by assuming that the criminal liberty to sell sex for money implies a moral liberty to do so.

Grégoire Webber is Associate Professor of Law at the London School of Economics.

[1] This paragraph is indebted in part to Bradley Miller ‘Proportionality’s Blind Spot: “Neutrality” and Political Philosophy’ in Huscroft, Miller, and Webber (eds) Proportionality and the Rule of Law (Cambridge, 2014) 382-383.

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Event: Prisoner Voting and the Constitution

Vincent_Willem_van_Gogh_037Prisoner Voting and the Constitution

Co-sponsored by the Study of Parliament Group and the United Kingdom Constitution Law Association

18:00-19:30 Wednesday 18 June 2014 – The Moot Court, Faculty of Laws, University College London

Speakers:

Professor Jeremy Waldron (Chichele Professor of Social and Political Theory and Fellow, University of Oxford, All Souls College; University Professor, NYU School of Law)

Associate Professor Aileen Kavanagh (Faculty of Law, University of Oxford and Tutorial Fellow, St Edmund Hall)

Colin Murray (Senior Lecturer, University of Newcastle; Specialist adviser to the Parliamentary Committee on the Draft Voting Eligibility (Prisoners) Bill)

Dr Michael Pinto-Duschinsky (Senior Consultant to Policy Exchange, Constitutional Affairs)

Chair:

Alexander Horne (Legal and Senior Policy Adviser, Scrutiny Unit, House of Commons; Legal Adviser to the Parliamentary Committee on the Draft Voting Eligibility (Prisoners) Bill)

 

While the media has often focused on the perceived unpopularity of extending the franchise to some prisoners and on criticising the role of the European Court of Human Rights, the debate on prisoner voting has also highlighted a number strengths and weaknesses of the United Kingdom’s constitution. The aim of this event is to identify and debate the constitutional issues that have emerged since the Grand Chamber judgment of Hirst (no 2).

 

The debate around prisoner voting has raised important questions on a number of different elements of the constitution including: the Human Rights Act 1998, the European Convention on Human Rights and the European Court of Human Rights, parliamentary sovereignty, the rule of law, pre-legislative scrutiny and Parliament’s relationship with the Government. The event brings together some of the leading academic commentators on the constitution, human rights and prisoner voting to provide some answers to these questions.

Please register via the Eventbrite page:

 

https://www.eventbrite.co.uk/e/prisoner-voting-and-the-constitution-tickets-11399531305

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Jason N.E. Varuhas: Should the common law of review and the law under the Human Rights Act 1998 be “synthesised”?

JNE VaruhasIn the recent decision of Kennedy v The Charity Commission [2014] UKSC 20 Lord Mance speculated that in time some form of “synthesis may emerge” between the common law of review and the law under the HRA. Consonant with this view he said, more specifically, that “there seems no reason” why a proportionality test or something akin to a proportionality test “should not be relevant in judicial review even outside the scope of the Convention and EU law”. No doubt the implications of this statement will be debated endlessly. But it is difficult to see Lord Mance’s statement as establishing proportionality as a head of review at common law: an appeal specifically on point, in which the Court heard full arguments on the matter and itself traversed all relevant arguments, overruled Brind [1991] 1 AC 696, and in clear and express terms stated that proportionality was now a head of review and addressed the implications for Wednesbury, would be required to effect such radical change (see similarly Lord Carnwath’s judgment at [247]).

In similar vein to Lord Mance, some commentators have argued in favour of the “unification” of common law review and HRA law around a set of common functions, norms, methods and concepts (technically they have argued against “bifurcation”, but given – as we shall see – the two fields are bifurcated, what these commentators really desire is unification). Most importantly for proponents of this heady vision, and consonant with the gist of Lord Mance’s views, such unification would entail the mainstreaming of proportionality across common law review.

This post argues against the idea that there ought to be a grand “synthesis” or “unification” of the common law of review and the law under the HRA. The post also advises caution in the reading across of norms, concepts or methods developed in one field to another. For example the justification and character of a particular norm may be dependent on considerations peculiar to the field in which that norm has been developed. Equally, its importation into a different field may cause incoherence, and undermine the distinctively valuable functions performed by the “receiving” body of law. Such considerations, of the distinctiveness of different doctrinal contexts, have largely been ignored in the long-stale Wednesbury-proportionality debate; though Lord Carnwath was attune to them in the final paragraphs of his judgment in Kennedy. In general the focus of the longstanding debate has been a running comparison of the relative advantages and disadvantages of adjectival features of each method, such as whether one is more “structured” or “transparent” than the other. The narrow focus of the debate on such second-order concerns distracts from deeper, far more significant matters.

Consideration of significant features of common law review and human rights law indicate that they are distinct bodies of doctrine which perform radically different functions. While each performs a range of functions the primary function of human rights law is, like certain actions in tort, to afford strong protection to and vindicate fundamental individual, personal interests, whereas the primary function of common law review is to ensure that public power is exercised properly and in the public interest. Once this is recognised it is difficult to make sense of calls for unification. Such claims are akin to arguing that equity and the law of torts ought to unify; the proposition is perplexing.

The Law under the HRA

The primary function of human rights law, and the law’s individualistic rights-based nature, are evident in its significant features:

  • Only the individual rights-holder may bring a claim. Claims are the property of the rights-holder and may not be assigned.
  • Claims are actionable per se: what matters is whether the claimant’s basic rights have been interfered with rather than whether the interference leaves them materially worse off; an interference may well leave a victim materially better off, but it remains the case that their basic interests ought not to have been interfered with.
  • Liability is strict: a defendant authority may be held liable for an interference with basic interests even if they acted reasonably, with meticulous care or with benevolent intentions. This reflects the prime importance the law places on fundamental interests, and their protection against outside interference.
  • Defences, such as proportionality or statutory authorisation, are narrow and construed strictly. For some rights, such as that against torture, there is no defence to breach under the HRA, other than express statutory authorisation.
  • The discretion to refuse relief is exceptionally limited due to the demands of Article 13: there must be an effective remedy for violation of basic rights.
  • Damages are available to redress personal losses; damages claims are paradigms of individuated, personal claims.
  • Claims may be brought via ordinary procedure, alongside other claims based in individual rights such as those in tort. Where they are brought via review procedure, the usual restrictions have been loosened so that, in significant respects, the procedure comes to resemble ordinary procedure.
  • Substantive questions, such as whether a risk was “real and immediate” or “reasonable steps” were taken in the context of the Osman duty, or whether interferences are proportionate, are determined objectively by the judiciary. This follows from the nature of the claim as one of individual right; determination of questions of individual right is a quintessentially judicial function.

There are striking similarities between these features of human rights law and those of the torts actionable per se, which have long performed similar protective functions and are based in individual rights. For example, in trespassory torts, only the rights-bearer may bring a claim, the claim is actionable per se, liability is strict, defences are narrow, specific relief will generally issue to halt ongoing wrongs, damages are available (although approached differently from HRA damages), and claims proceed via ordinary procedure. Such clear links are often obscured by fuzzy thinking in terms of a grand division between public and private law.

The common law of review

Whereas the primary function of human rights law is to afford strong protection to personal interests, the primary concern of common law review is the near-inverse: to ensure public powers are properly exercised according to basic precepts of good administration and in the interests of the public. The law’s principal focus is on the exercise of power itself. This is not to say the law evinces no concern for the individual. It does. But the concern is subsidiary.

Significant features of the law demonstrate this primary function:

  • Public interest standing rules. Unaffected groups or citizens may bring a claim where they have an arguable case. The reason for this is that what is at stake at common law is something we all have a legitimate interest in: the proper exercise of public power for the common good. A rights-based standing rule would be inconsistent with and undermine such function.
  • Remedies are limited to specific-type relief, reflecting the law’s functions: remedies are geared towards regulating and guiding public power so that it is exercised as it ought to be. Relief is discretionary and may be refused where its grant would compromise the public good. Damages are not available; such remedy, which redresses personal losses, would be out of place in a field concerned with the public good, rather than personal interests.
  • The review procedure evinces the law’s public interest ethos. It provides for many safeguards – restrictions on disclosure and oral evidence, short limitation period, permission stage – which serve to protect authorities from disruption in carrying out their tasks in the public interest.
  • Administrative action is presumed valid and the onus is on the applicant to demonstrate unlawfulness, in contrast to human rights law where the onus of justification lies with the defendant. These features are indicative of the law’s principal concern for the public interest: the presumption serves to protect public interests in administrative certainty and citizen compliance with decisions. One might argue that onus is not of great practical significance; but even if this is correct it is nonetheless a marker of the law’s purpose.
  • Review on common law grounds is a supervisory jurisdiction and a measure of last resort. There are several reasons for this. First, it is for the administrative decision-maker to determine what lies in the public interest. Second, administrators know a great deal more about good administration than judges. Third, judicial restraint is necessary so that in seeking to ensure power is exercised in accordance with precepts of good administration and for the public good, judges do not unwittingly undermine those goals through overzealous interference with administration; thus, good administration and pursuit of the public interest form the basis of the review jurisdiction, and the rationale for restraint in exercise of that jurisdiction.
  • The grounds of review also reflect the law’s principal functions.

o   Judges consistently emphasise that public power is only to be used for the public good. Of course, it is not for the judges to say what lies in the public interest; rather the judicial role is to keep administrators broadly “on track” in the exercise of their power. Thus, courts will in general only intervene in circumstances where it is clear that power has not been exercised for the public good, for example where its exercise is shown to have been captured by private or extraneous concerns. To act on irrelevant concerns or with bias or for improper purpose is to deviate from the basis upon which the power has been granted. Similarly, where an administrator acts wholly irrationally, this is indicative of a deviation from the purposes for which power is conferred.

o   A central concern of common law review is to ensure public power is exercised according to ordinary expectations of good administration. Making material errors of fact or making a decision which affects a person without giving them notice or the chance to be heard is not in accord with basic expectations of good administrative practice, and will lead to unreliable decision-making.

These fundamental features indicate the law’s primary function is to ensure public power is exercised properly and in the public interest. Of course, aspects of the law evince a concern for individual interests. But how the law approaches this concern is molded by its primary functions. As Lord Donaldson MR said in Argyll Group [1986] 1 WLR 763, 774, “Good public administration requires a proper consideration of the legitimate interests of individual citizens … But in judging the interest, however legitimate, regard has to be had to the purpose of the administrative process concerned”. Consider the anxious scrutiny reasonableness test applied in human rights cases. The only real onus on the primary decision-maker is to take into account the “human rights” and balance them against other concerns. If she does that, the court will only intervene if the balance struck was wholly irrational. The law’s concern is principally one of good administration: to ensure legitimate interests that might be affected by the decision are accounted for. Beyond that, the decision is for the official. In Kennedy Lord Carnwath similarly observed that even in human rights cases, “the role of the courts [at common law] is often more process than merits”.

Of course, many applicants bring review claims on the basis that they wish to preserve their individual interests. But one must keep separate an applicant’s subjective motivations for bringing a claim and the nature of the body of law which forms the basis of their claim. You may punch me, thereby giving me a claim in battery against you. I bring a legal claim because of my idiosyncratic subjective desire to test some arguments I once made in a journal article on the law of torts. This does not change the fact that the basis of the claim is breach of a personal right not to be beaten up.

The normative basis for a claim at common law is not breach of an individual right, as it is under the HRA. It is breach of a public duty, owed by authorities to the community, for the benefit of the public at large; this is a public wrong, not an individual wrong. This is why, for example, unaffected members of the community are entitled to initiate proceedings, and why damages for personal loss are not available and would be out of place. Individual interests may be taken into account in setting the specific content of these public duties – as in anxious scrutiny cases – but this does not alter the public nature of the duty: a duty on authorities, owed to the polity, not to act irrationally.

It is also worth noting that the principal reason we have this human rights dimension in the common law in the first place is, as Lord Rodger acknowledged candidly in Watkins [2006] 2 AC 395, [64], one of bare politics: English courts were, in the 1980s and 1990s, seeking to ensure compliance with Strasbourg requirements in the absence of a domestic rights-instrument. Some might see it as more than mere coincidence that Lord Mance’s observations in Kennedy come at a time when repeal of the HRA is being mooted by senior Ministers. Where courts alter doctrine according to extrinsic concerns, the result is nearly always to introduce confusion and incoherence into the law.

Synthesis?

Thus we have two bodies of law which have radically different internal structures. These differences reflect the radically different functions that the two fields perform. In this light, it is difficult to make sense of claims for unification, synthesis etc: how could one sensibly unify a body of law concerned principally with preservation of the public interest, and a body of law concerned principally with preservation of individual interests? Further, why would we want to do this? The common law serves to ensure administrators exercise their powers properly and for the benefit of the public whom they ultimately serve, while human rights law serves to protect basic individual interests which may be prejudiced by powers otherwise exercised properly for the public good. This all seems perfectly sensible.

Recognition of the importance of doctrinal context provides an answer to the well-worn claim that it is inconsistent that where administrative action touches on “human rights”, challenges will be approached differently under the HRA and at common law. A HRA claim is a claim of right within a body of law dedicated to protection of fundamental individual interests. A review claim is a claim that a court should exercise a secondary remedial jurisdiction to ensure public power is used as it ought to be. Given these differences it makes perfect sense that different approaches are taken. Fundamental features of proportionality under the HRA are only explicable in the light of the doctrinal context in which the test applies. The structure of the test and its strictness derive from the law’s principal concern, to afford strong protection to basic interests. It is because the test is applied within a claim of individual legal right that the primary, objective judgment as to whether an interference is proportionate is for the judiciary. The onus of justification lies with the defendant because proportionality is in the nature of a defence to breach of an individual legal right. None of these contextual features are present at common law. The fundamental error, too often made, is to think of proportionality under the HRA as a ground of review, conceptually analogous to Wednesbury, so that replacing Wednesbury with proportionality would be to replace like with like. But proportionality is not a ground of review: it is a defence in an action for breach of an individual, fundamental legal right, and all of its significant features flow from that context; a context far removed from the common law supervisory jurisdiction and its principal concerns. As Lord Carnwath said in Kennedy, under the HRA “[t]he court’s function … is to decide for itself whether the decision was in accordance with Convention rights; it is not a purely reviewing function”.

Because the focus in proportionality/Wednesbury debates is far too often on the proportionality method, it is worth pausing to reflect on what would be being balanced within the rubric of that method, if it were mainstreamed at common law. Some prominent protagonists of proportionality, such as Paul Craig ([2010] NZ L Rev 265), appear to argue that individual rights and interests ought to anchor the proportionality method, whether these rights and interests are of fundamental status or not. Craig’s normative argument tends to focus on the benefits of proportionality method – the importance of reasoned justification, structure in judicial analysis and simplicity. But Craig offers no serious normative argument to justify a radical shift of focus in the law of review from a central concern for preservation of the public interest (specifically those public interests Parliament intended the relevant administrative powers to be used in aid of), to the central concern of the law being preservation and protection of private interests of individuals and legal entities, such as corporations. Why should the focus of public power in general be upon such special interests rather than the common good?

English law already recognises a body of law concerned with protecting private interests: private law. By virtue of the Diceyan principle of equality, private law applies, in principle, to public authorities just as it applies to private citizens. Why is further protection of individual interests required, especially when human rights, employment, family and equality legislation, and EU law have plugged the most significant gaps in protection of private interests?

And if further protection is warranted, why should that be through review? Why not argue for a new body of law specifically dedicated to protection of the relevant interests, rather than undermine valuable, distinctive functions performed by common law review and/or distort the coherence of the common law.

Further, if common law review is to directly protect private interests, why should that protection stretch to any possible interest that might be affected by administrative action, regardless of its importance? We would need a good argument as to why each possible interest potentially affected by administrative action warrants the intervention of the law. I have not seen such arguments. Further, would it not be preferable that claims concerning low-level interests be left to informal mechanisms such as the Parliamentary Ombudsman? Unification theorists do not generally consider such possibilities, nor do they seriously consider potential detriments which may accompany a radical expansion of judicial review, such as the impact on public interests in administrative certainty, flexibility, efficiency, effectiveness, and expeditiousness, in the exercise of public functions which ultimately serve the interests of all.

 Dr Jason N. E. Varuhas is Dean’s Postdoctoral Research Fellow at the University of New South Wales Faculty of Law and Junior Research Fellow at Christ’s College, University of Cambridge.  This post is a summary of parts of a longer paper, “Against Unification: Recognising the Distinctiveness of the Common Law of Review, and the Law under the Human Rights Act 1998”, forthcoming in H. Wilberg and M. Elliott (eds), The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow (Hart Publishing, Oxford).

(Suggested citation: JNE Varuhas, ‘Should the common law of review and the law under the Human Rights Act 1998 be “synthesised”?’ U.K. Const. L. Blog (28th APril 2014) (availabl at: http://ukconstitutionallaw.org/).

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ALBA/UKCLA Seminar: Right to an Oral Hearing

UKCLA logoOn 14 May 2014 the UK CLA will hold its first joint seminar with ALBA ( the Constitutional and Administrative Law Bar Association). The topic addresses questions of procedural fairness  in relation to the right to an oral hearing.  The speakers are  Hugh Southey QC and Professor David Feldman, with Mr Justice Silber as Chair. The speakers will consider recent case law in which the courts have considered the circumstances in which fairness requires (and does not require) an oral hearing. The seminar will be held from 17.45-19.15, in Gray’s Inn, in the   Large Pension Room. 1½ CPD  points will be applied for. The seminar is free, but it is necessary to register in advance.  This can be done through the ALBA website  www.adminlaw.org.uk.

 

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Graham Gee: The Lord Chief Justice and Section 5 of the Constitutional Reform Act

graham-gee-webThe Constitutional Reform Act redrew relationships between the senior judiciary and Parliament in a number of ways. Amongst the most significant was removing the right of the LCJ to speak in the Lords. Earlier this month, the new LCJ Lord Thomas repeated the lament of his immediate predecessors that it was a mistake to deprive the LCJ of the right to address Parliament on the floor of the House on important matters relating to the administration of justice. In this context, some have read the LCJ’s suggestion of a new approach to s5 of the CRA as significant. Drawing on interviews conducted between 2011-13 as part of an AHRC-funded project on The Politics of Judicial Independence, I want to shed some light on tensions that have arisen about the use of s5.

Section 5

Under s5, each of the LCJ, the LCJ for Northern Ireland and the Lord President “may lay before Parliament written representations on matters that appear to [the officeholder] to be matters of importance relating to the judiciary, or otherwise to the administration of justice”. In debates ten years ago on the bill that became the CRA, the then LCJ and Lord Chancellor—Lord Woolf and Lord Falconer—both suggested that s5 would be used rarely and only for high profile matters of serious concern to the judiciary. Subsequently, both Lords Phillips and Judge appeared to confirm this by describing s5 as a “nuclear option” to be used only in the face of a serious threat to judicial independence or the rule of law. (See here and here). But, in practice, neither used s5 in this way, invoking it instead for the more humdrum matter of laying before Parliament periodic reports on the management of the judiciary. Behind this lies a surprising and even at times rather silly disagreement between senior judges and parliamentary authorities; or what an interviewee called “a storm in a teacup”.

“A Storm in a Teacup”

In late 2007 and early 2008, there were lengthy discussions between the LCJ, the Procedure Committee, the Journal Offices in the Commons and Lords and others about the most appropriate way of getting the LCJ’s reports before Parliament. At issue were rival interpretations of the proper scope and purpose of s5. Reversing his previous position, Lord Phillips now argued that s5 was not only to be used in “a crunch situation” to raise pressing issues of concern, but that it also supplied a statutory mechanism whereby the LCJ can lay periodic reports before Parliament. The clerks did not dispute that a report can be laid under s5, provided it contained “written representations”. Rather, they relied on statements by ministers and Lord Phillips himself to argue that s5 was only for raising serious concerns.

Driving the clerk’s arguments were rules regulating who has authority to formally “lay” papers in the Commons. Under these rules, ministers are effectively the only officeholders authorized to do so. (See this guidance from the Journal Office from April 2009). The clerks suggested instead that the Speaker and the Lords Speaker should place the report in the libraries of the Commons and Lords as a deposited paper on behalf of the LCJ. Lord Phillips initially agreed to this, only to change his mind shortly before publication of his first report, insisting that he should be able to lay his report independently, without relying on the Speaker, the Lords Speaker or anyone else. Lord Phillips’s eleventh-hour reversal surprised the clerks. As one interviewee observed, “it was frankly all a bit of shambles, and there was a lot of misunderstanding and a lot of crossed wires”. In the end, Lord Phillips invoked s5 to lay his report before Parliament, with this fact noted on the face of the report itself—although, as one interviewee told us, in reality what actually happened was that the report was laid before the House on his behalf by the Clerk of the House.

In 2009 Lord Judge’s officials approached clerks in the Commons to discuss using s5 to lay the then new LCJ’s report before Parliament, but they were “sent away with a flea in their ear”, leading to what an interviewee labelled “a bit of a tiff”. In 2010, Lord Judge issued his report, but without using s5. Subsequently he initiated negotiations with the House of Lords authorities, agreeing with them that in the future the Lords would accept reports issued under s5. Two years later, a similar agreement was reached with the Commons, and in both 2012 and 2013 the LCJ’s reports were laid before both Houses under s5.

This back-and-forth, together with all of the tensions and frustration it generated, is aptly described as “a storm in a teacup”. But like many a storm in a teacup, it reveals something about the actors involved as they fumbled to redefine working relationships following the 2005 changes. These relations have been redefined less in a systematic fashion, and more by touch-and-feel, with missteps along the way. These missteps resulted largely from a failure to understand the other’s concerns and anxieties. The judges underestimated the cautiousness of the clerks and their concern to protect Parliament’s privileges and customs. The clerks in turn did not adequately grasp the importance that senior judges placed on finding new ways of communicating with politicians, especially in light of changes to the role of Lord Chancellor. Matters were not aided by successive LCJs sending mixed messages on s5. Similar patterns can be seen in other aspects of judicial-legislative relations: some parliamentary officials feel that senior judges have sent mixed signals on the appropriate scope of questioning of judicial witnesses by select committees.

Relations are improving, with the agreement that was eventually reached over s5 evidence of this. And careful coordination is taking place on both sides to nurture mutual understanding of and respect for each other’s concerns. The previous LCJ, Lord Judge, and the current Clerk of the House of Commons, Sir Robert Rogers, are both more outward looking than their predecessors and have developed more frequent informal contacts. To aid a better mutual understanding, the Clerk of the House has begun holding regular informal meetings with the LCJ and President of the UK Supreme Court, where topics discussed have included sub judice, the use of parliamentary materials in court and parliamentary privilege. The new guidance from the Judicial Executive Board in 2012 on judicial appearances before select committees is in part a product of these contacts.

When should s5 be used?

The tone of his evidence before the Justice Committee earlier this month suggests that Lord Thomas wants to build on this more outward-looking approach. In his evidence, he referred to the enduring respect that exists between Parliament and the judiciary, but hinted at concern about a lack of understanding between them. It was in this context that the LCJ suggested that he took a different view on s5 than his predecessors, eschewing the description of it as a nuclear option. He did not elaborate on the circumstances in which he envisaged using s5, although it is safe to assume that he will continue to invoke s5 to lay reports before Parliament. Although it is sensible for the senior judiciary to search out new and fruitful ways of communicating with Parliament, s5 is best retained as a measure of last resort.

The reason can be simply stated: the LCJ already has a suite of tools available for articulating concerns to ministers, parliamentarians, lawyers or the public at large. These include monthly meetings with the Lord Chancellor and, in a fairly recent innovation, twice yearly meetings with the Prime Minister. As and when serious concerns arise, the LCJ can request an extraordinary meeting with the PM. This happened in 2001, when the LCJ and a team of senior judges went to 10 Downing Street and persuaded Tony Blair to abandon a planned reorganization in Whitehall under which responsibility for the courts would have shifted to the Home Office. Other tools include speeches, press conferences and appearances before select committees. Where bills concern the administration of the courts or constitutional matters pertaining to the judiciary, judges already routinely provide evidence—oral and written—to committees. The chairs of both the Commons Justice and the Lord Constitution Committees have indicated that the LCJ can approach them to request an urgent session to hear from the LJC on topics of serious concern to the judiciary. Under HMCTS’s Framework Document, special processes are now also available to the LCJ to raise concerns about court funding.

These tools will usually be sufficient for voicing judicial concerns. They will alert stakeholders, generate coverage in the press and often secure favorable results for the judges. Absent a real constitutional crisis, it is difficult to imagine what using s5 could add; almost always there will be more appropriate, and more effective, ways of highlighting judicial concerns short of submitting formal representations to Parliament. A prudent LCJ will engage with ministers in private first, and only slowly escalate the matter in public. When relations with government are proving troublesome, the LCJ must decide whether to raise a concern publicly, how and where, reflecting on whether putting ministers on the spot in public will advance the judicial cause over the long haul. Knowing how to advance judicial interests inside Whitehall and Westminster requires political judgment. Almost always the LCJ will be well advised to avoid escalating matters through s5. Above all, there is something to be said for having an identified measure of last resort recognized by ministers, MPs, peers and civil servants as a tool that the LCJ would only use in the most strained circumstances. Seeking to employ 5 as something other than a measure of last resort to be used only in the most serious circumstances ultimately risks undercutting its potency.

A Final Word on the LCJ’s Reports

There are more appropriate ways than s5 for ensuring that the LCJ’s reports are laid before Parliament. Only four such reports have been prepared over nearly 10 years. They offer a selective, high-level account of the stewardship of the judiciary, with their irregular frequency rendering it impossible to compare performance of the senior judiciary over time. Successive LCJs have resisted producing the reports annually on the grounds that it would be administratively burdensome. This seems a poor excuse given the wide array of management and leadership responsibilities exercised by, or in the name of, the LCJ. It seems that Lord Thomas now intends to issue reports annually. Talk is cheap: Lord Phillips made a similar commitment in 2007, only for his successor to resile from it. To ensure regular reports, the LCJ should be under a statutory duty to produce an annual report similar to that on the Senior President of Tribunals, except that it should include explicit statutory authority to enable the LCJ to lay reports directly with each House.

 

Graham Gee is a law lecturer at the University of Birmingham. In 2011-2013 he worked with Robert Hazell, Kate Malleson and Patrick O’Brien on an AHRC-funded project on The Politics of Judicial Independence.

 

 Suggested citation: G. Gee, ‘The Lord Chief Justice and Section 5 of the Constitutional Reform Act’ U.K. Const. L. Blog (14th April 2014) (available at: http://ukconstitutionallaw.org/).

 

 

 

 

 

 

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