Tag Archives: Constitutional Reform Act 2005

Christopher Forsyth: Principle or Pragmatism: Closed Material Procedure in the Supreme Court

forsyth1 In Al Rawi & Ors v The Security Service & Ors [2011] UKSC 34; [2012] 1 AC 531 the claimants (respondents in the Supreme Court) were bringing civil claims for damages against the defendants (appellants in the Supreme Court) alleging complicity by the defendants in their mistreatment by foreign powers (including detention at Guantanamo Bay). The defendants as part of their defence wished to place before the court “security sensitive material” – presumably the evidence of intelligence agents, or similar, denying the complicity – which for security reasons could not be disclosed to the claimants. Thus the defendants submitted that the court hold a “closed material procedure”. They envisaged that the evidence would be placed before the courts in closed session, i.e. a session from which the claimants and their representatives (and the public) were excluded. In the closed session the claimants would be represented by “special advocates” appointed by the court who would have access to the evidence but would not be able to take instructions from the claimants. Such procedures are controversial since they threaten the fundamental principles of open justice and natural justice. On the other hand, the national interest would doubtless be impaired, in some cases, if intelligence agents gave evidence and their methods and secrets were exposed in open court.

Statute makes express provision for such “closed material procedure” to be adopted by judicial bodies in several cases (for instance, the Terrorism Prevention and Investigation Measures Act 2011, Schedule 4, or the Counter-Terrorism Act 2008, Part 6); but there was no specific statutory provision applicable to civil actions for damages.  Thus the question arose whether the court had power at common law (or under its inherent jurisdiction) to craft such a procedure.  Lord Dyson, giving the lead judgment in which Lords Hope, Brown and Kerr concurred, was clear. He said:

“Closed material procedures and the use of special advocates continue to be controversial. In my view, it is not for the courts to extend such a controversial procedure beyond the boundaries which Parliament has chosen to draw for its use thus far. It is controversial precisely because it involves an invasion of the fundamental common law principles to which I have referred [viz, open justice and natural justice particularly the right to know the case to be answered]. I would echo what Lord Phillips said in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28; [2010]2 AC 269. ‘How [the] conflict [between full disclosure of the allegations against a party and other aspects of the public interest] is to be resolved is a matter for Parliament and for government, subject to the law laid down by Parliament’.”

That one might have thought was that. In the absence of clear Parliamentary warrant there could be no “closed material procedure” or its concomitant “special advocate”.  But what then is to be made of Bank Mellat v Her Majesty’s Treasury (No. 1) [2013] UKSC 38? Here the Supreme Court, in the absence of an express statutory warrant, held that it had the power to order a “closed material procedure” and indeed went on to hold such a procedure!

What had happened here was that the Treasury had made the Financial Restrictions (Iran) Order 2009 which in effect closed down the UK operations of Bank Mellat, an Iranian Bank, and its subsidiary. The Order was made under section 62 and Schedule 7 of the Counter-Terrorism Act 2008 which provides that amongst many other things if “the Treasury reasonably believes” that “the development or production of nuclear …. weapons in [a] country … poses a significant risk to the national interests of the United Kingdom”  it might give directions which had the effect mentioned. The directions had to be (and were) approved by affirmative resolution of Parliament within 28 days.

This decision could be challenged and was challenged by Bank Mellat by way of a statutory form of judicial review provided for in section 63 of the 2008 Act. The 2008 Act, in Part 6, provided for a “closed material procedure” in such proceedings. And the Treasury “took the view” (which was accepted by Mitting J at first instance) “that some of the evidence relied on by the Treasury to justify the 2009 Order was of such sensitivity that it could not be shown to the Bank or its representatives”; consequently that evidence was dealt before Mitting J by a closed material procedure (and there was a short closed judgment). On appeal to the Court of Appeal that material was dealt in a short closed session.  But now the matter had come before the Supreme Court. Part 6, and in particular section 73 of the 2008 Act, made provision for “closed material procedures” to be adopted in the High Court, the Court of Appeal and the Court of Session. But no mention was made of the Supreme Court. Where was the Parliamentary warrant for “closed material procedures” before the Supreme Court?

Lord Neuberger (with Lady Hale, Lord Clarke, Lord Sumption, and Lord Carnwath concurring), however, held that the Supreme Court had the power to conduct a “closed material procedure”. (Lord Dyson agreed with this outcome.) But here is the interesting part: the Supreme Court (or at any rate the majority) was not, in its view, disregarding or departing from Al-Rawi.  The statutory warrant to hold a “closed material procedure” was found or implied from section 40(2) and 40(5) of the Constitutional Reform Act 2005. Section 40(2) provides that “An appeal lies to the [Supreme] Court from any order or judgment of the Court of Appeal in England and Wales in civil proceedings” (emphasis added) and section 40(5) provides that “The [Supreme] Court has power to determine any question necessary to be determined for the purposes of doing justice in an appeal to it under any enactment.” Thus the majority reasoned: since “section 40(2) provides that an appeal lies to the Supreme Court against ‘any’ judgment of the Court of Appeal… that must extend to a judgment which is wholly or partially closed…[and] in order for an appeal against a wholly or partially closed judgment to be effective, the hearing would have to involve… a closed material procedure;.. such a conclusion is reinforced by the power accorded to the Court by section 40(5) to ‘determine any question necessary … for the purposes of doing justice’, as justice will not be able to be done in some such cases if the appellate court cannot consider the closed material” (Lord Neuberger, para 37). This is a powerful argument. How could the Supreme Court do justice in a case where there had been a “closed material procedure” in the Court of Appeal or at first instance, without looking at that material itself? And, ignoring the closed material, or revealing it before the Supreme Court, were not attractive alternatives.

But the dissenting judges (Lord Hope, Lord Kerr and Lord Reed) took a different view. Naturally much was made of Lord Hoffmann’s canonical words in R v Home Secretary, ex parte Simms [2000] 2 AC 115 at 131: “…the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.” Whatever else might be the case there had been no careful consideration by Parliament in enacting the 2005 Act whether the right to open justice should be overridden (in 2008!).

And Lord Kerr (paras. 124-5) explained why he was not persuaded by the claims of the pragmatic considerations of the majority. He said:

“Pragmatic considerations can – and, where appropriate, should – play their part in influencing the correct interpretation to be placed on a particular statutory provision. But pragmatism has its limits in this context and we do well to recognise them. As a driver for the interpretation of section 40(5) for which the respondent contends, pragmatism might seem, at first blush, to have much to commend it. After all, this is an appeal from courts where closed material procedures took place. How, it is asked, can justice be done to an appeal if the court hearing the appeal does not have equal access to a closed material procedure as was available to the courts whose decision is under challenge? And if one proceeds on the premise that the court will be more fully informed and better placed to make a more reliable decision, why should the Supreme Court not give a purposive interpretation to section 40(5)?

The answer to this deceptively attractive presentation is that this was never the purpose of section 40(5). It was not even a possible, theoretical purpose at the time that it was enacted. It was never considered that it would be put to this use. The plain fact is that Parliament introduced a closed material procedure for the High Court, the Court of Session and the Court of Appeal and did not introduce such a procedure for the Supreme Court. This court has said in Al-Rawi that it does not have the inherent power to introduce a closed material procedure. Only Parliament could do that. Parliament has not done that. And to attempt to graft on to a statutory provision a purpose which Parliament plainly never had in order to achieve what is considered to be a satisfactory pragmatic outcome is as objectionable as expanding the concept of inherent power beyond its proper limits.

“Closed material procedure” and “Special Advocates” will never be popular with lawyers bred, as they should be, with natural justice in their bones. So the courts, and particularly the Supreme Court, will be rightly sceptical of such devices. But Parliament has ordained that such procedures are lawful in certain circumstances. The inevitable tensions and discontinuities between what Parliament has ordained and the instincts of the courts are difficult to resolve. In this fallen world there will never be an easy resolution to this clash between pragmatism and principle. The clash between the protection of fundamental rights and the protection of national security (as well as loyalty to Parliament’s will) will always be acute.  Bank Mellat shows that the pragmatists are, on this issue, in the ascendency. But the issue is still contested and we have not heard the last of it.

In one respect the tension is resolved. Part 2 of the Justice and Security Act 2013 enacted in response to Al-Rawi provides for closed material procedures in civil proceedings; and section 6(11) provides that “relevant civil proceedings” means “any proceedings (other than proceedings in a criminal cause or matter) before (a) the High Court,  (b) the Court of Appeal, (c) the Court of Session, or (d) the Supreme Court” (emphasis added).  Alas, in enacting the Terrorism Prevention and Investigation Measures Act 2011, Schedule 4 (dealing with closed material procedures for TPIM) Parliament was presumably not mindful of Al-Rawi and refers only to the High Court,  the Court of Appeal and  the Court of Session! Presumably in TPIM cases the power to hold closed material procedures will be vouchsafed by section 40(2) & (5) of the 2005 Act.

Bank Mellat prompts a final reflection based on something that is not mentioned in any of the judgments. In R v The Lord Chancellor, ex parte Witham [1998] QB 575 Laws LJ suggested that common law constitutional rights – he had in mind the right of access to the courts but the right to open justice would serve as well –  could only be removed by express words in legislation.  He said: “I find great difficulty in conceiving a form of words capable of making it plain beyond doubt to the statute’s reader that the provision in question prevents him from going to court (for that is what would be required), save in a case where that is expressly stated. The class of cases where it could be done by necessary implication is, I venture to think, a class with no members”. But the bold approach by the majority in Bank Mellat suggests that limitations on constitutional rights may established by necessary implications from the relevant statute.

Christopher Forsyth is Professor of Public Law and Private International Law at the University of Cambridge.

Suggested citation:  C. Forsyth, ‘Principle or Pragmatism: Closed Material Procedure in the Supreme Court’  UK Const. L. Blog (29th July 2013) (available at http://ukconstitutionallaw.org)

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Patrick O’Brien: Does the Lord Chancellor really exist?

patrick-obrienOn 12 June 2003 a minor constitutional revolution began with the resignation of Lord Irvine as Lord Chancellor and the announcement of a package of reforms including the abolition of his office and the creation of a Supreme Court, later to become the Constitutional Reform Act 2005 (CRA). To commemorate the tenth anniversary of these events, the Judicial Independence Project held a private seminar on 12 June 2013 at which some of those directly involved in the changes spoke about the experience and the effects it has had on constitutional change. A note of the seminar is available here. In part the seminar brought out the drama and the comedy of the day itself. An old friendship ended in acrimony: Irvine had been the Prime Minister’s pupil master and had introduced him to his wife. At the same time the senior judiciary, at an away day with civil servants, were taken by surprise by the announcement and had to have the details explained to them whilst they huddled, increasingly angry, around a single phone in a country pub.

The judiciary and lawyers have always seen the constitutional changes that ultimately became the CRA as being about them: about judicial independence and the courts. In fact for the government they were primarily about policy delivery and changes to the machinery of government. The Prime Minister wanted to replace the Lord Chancellor’s Department, which was perceived to be poorly managed, with a normal government department led from the Commons and capable of delivering the New Labour agenda of reform.

The reforms of 2003-2005 were also intended (at least in part) to make the judiciary more independent, but by removing the voice of the Lord Chancellor in Cabinet the judiciary felt that they would be left less independent. The perception remained – and largely remains – that the old Lord Chancellor was a staunch defender of the judiciary and their independence. Yet many of Lord Chancellors of recent decades had fallen out badly with the judiciary over reforms of one kind or another. Lord Mackay was highly respected as a judge and as Lord Chancellor but his reforms to pensions and the legal profession enraged the judiciary. Lord Elwyn-Jones’ refusal to promote Sir John Donaldson in the 1970s for fear of the political reaction amongst back bench Labour MPs is remembered bitterly as a low point for judicial independence.

The plan to abolish the Lord Chancellor was not followed through following pressure from the House of Lords and recognition that abolition would be an extremely complex matter. The title of Lord Chancellor was retained. But what is it that remains? Speakers at the seminar suggested that post-CRA the office no longer exists. There is something called ‘the Lord Chancellor’ but, shorn of the judicial functions and the speakership of the Lords that characterised the old office, the new office is a sort of vestigial organ attached to the Justice Secretary, to be exercised in wig and gown at state occasions but with little more substance than that (and the current incumbent appears to have foresworn the wig). The two remaining functions of significance to the judiciary that the Lord Chancellor retains are the protection of judicial independence and the appointment and discipline of judges (and the passage of the Crime and Courts Act has made his involvement in appointments less significant). The CRA says that a Lord Chancellor must be ‘qualified by experience’ but defines this so loosely (a person may have experience as a Minister, MP, lawyer or any ‘other experience the Prime Minister considers relevant’) as to render the requirement redundant: effectively, anyone can be Lord Chancellor if the Prime Minister agrees. In early interviews for the Judicial Independence Project, judges repeatedly emphasised that the major change to the office of Lord Chancellor would occur not when it was given to a non-lawyer but when the profile of the incumbent changed: when it moved from a big political beast at the end of his or her career to a politician on the way up. We crossed that Rubicon in September 2012 when the office moved from Ken Clarke to Chris Grayling and arguably the judges’ instincts have been borne out. Naturally sympathetic to the hawkish Home Office position rather than the traditionally dovish Lord Chancellor’s position on law and order, Grayling has not been slow to make his mark on issues from the rather severe cuts to Legal Aid to the restriction of judicial review and the eye-opening proposal to privatise part or all of the courts service. This is perhaps not surprising for a minister whose brief includes a large chunk of the former Home Office – the law-and-order-ish prisons and probation – and was picked for his experience as shadow Home Secretary.

Which brings us to a conclusion: if the Lord Chancellor does not really exist anymore should we not face this fact and get rid of the title and the legacy functions associated with it? This need not be considered a bad thing. The duty to uphold the independence of the judiciary in the CRA is given not just to the Lord Chancellor but to all ministers of the Crown and the Attorney General, Dominic Grieve, appears on occasion to speak to these kinds of issues (he has, for example, spoken to Grayling on the Legal Aid proposals in response to a letter written to him by a group of Treasury counsel). And there are others in government, Parliament and the civil service who work hard to maintain and support the courts and the rule of law. But perhaps the point is broader than that. Does the existence of the title ‘Lord Chancellor’ and its loose commitment in the CRA to the principle of judicial independence conceal the need for these others to step into the breach more frequently and more publicly? Do we need less personalised and more stable protections than the CRA provides?

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

Suggested citation: P. O’Brien, ‘Does the Lord Chancellor really exist?’, UK Const. L. Blog (26th June 2013) (available at http://ukconstitutionallaw.org).

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Kate Malleson: Taking the politics out of judicial appointments?

Seven years after the judicial appointments process was completely refashioned under the provisions of the Constitutional Reform Act 2005 (CRA), the system is being looked at again. In November, the Ministry of Justice issued a consultation paper on ‘Judicial Appointments and Diversity: A Judiciary for the 21st Century’ pre-empting the forthcoming report of the House of Lords Constitution Committee inquiry on the same topic. A key issue in both the consultation paper and much of the evidence submitted to the Lords inquiry is the role of the Lord Chancellor in the appointments process. The provisions of the CRA reducing the role of the Lord Chancellor to that of a limited veto over the decisions of the judicial appointments commission (JAC) have been subject to a range of criticisms. The aim of the consultation paper is to address these concerns by achieving ‘…the proper balance between executive, judicial and independent responsibilities’. To this end, it proposes transferring the Lord Chancellor’s powers to the Lord Chief Justice in relation to appointments below the High Court or Court of Appeal while at the same time ensuring that the Lord Chancellor plays a more ‘meaningful role’ in relation to the higher judicial ranks. This would be achieved by requiring the JAC  to consult the Lord Chancellor on potential candidates for the most senior appointments and by including the Lord Chancellor on the JAC  selection panel for the appointment of the Lord Chief Justice and for the appointment of the President of the UK Supreme Court by the ad hoc Supreme Court appointment commission. At the same time, the Lord Chancellor’s current power of veto would be removed.

At first blush, therefore, these proposals look like a sensible attempt to recognise the distinction between the lower and upper ranks of the judiciary, acknowledging what the Lord Chancellor, Kenneth Clarke, has described as the ‘ritual’ element of his involvement in appointments at the lower ranks, while recognising the need for greater political accountability in appointments to the senior judiciary. The consultation paper notes the potential for a democratic deficit if the executive is not involved in the process: ‘We consider that the complete removal of the Lord Chancellor from the entire process would result in an accountability gap and are of the view that this gap increases with the seniority of the appointment being made’.

The first element of the proposed change, the removal of the role of the Lord Chancellor in relation to positions below the High Court or Court of Appeal, has attracted considerable support from those who gave evidence to the Lords inquiry. The Lord Chancellor himself stated in evidence to the Committee that in relation to this aspect of his role he simply ‘goes through the motions’ of reviewing the candidates about whom he knows little or nothing. In contrast, the proposed removal of the Lord Chancellor’s current right of veto in relation to the upper judiciary is far more controversial and it is hard to see that this aspect of the proposed change represents the creation of a more ‘meaningful’ role for the executive. The reason why the JAC was set up as a recommending commission rather than an appointing body, with the Lord Chancellor retaining the final say in appointments, was to provide a potential check on the decision-making of the independent commission in the event of something going wrong in relation to an appointment (whether the error was committed in good faith or bad) and to maintain a meaningful degree of political accountability in the process. The first of these functions would be lost under the proposals and the second would be weakened. In addition, the proposed change is likely to undermine efforts to increase diversity in the judiciary. Experience in other jurisdictions, as well as the UK, has shown that diversity does not automatically improve as the composition of the legal profession changes but requires political will to drive forward proactive changes, some of which are not supported by the judiciary or the legal profession.

A better option for striking the correct balance between the branches of government would be to retain the Lord Chancellor’s veto and for the JAC (and the ad hoc commission in relation to Supreme Court appointments) to provide the Lord Chancellor with a short-list of three names of candidates to choose from for all senior appointments whom the commissions consider to be very well-qualified and appointable. This would allow for an appropriate degree of political input in the process and would open space for the Lord Chancellor to promote greater diversity though his choice of candidates while maintaining selection on merit. It would also maintain the important function of a back-stop in case of error or malpractice.

Kate Malleson is a Professor of Law at Queen Mary, University of London

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Roger Masterman and Jo Murkens: What Kind of a Court is the UK Supreme Court?

The United Kingdom Supreme Court (UKSC) is something of a novel institution among apex courts.  It is not a typical supreme court with strong powers of constitutional review, but it has powers to determine the legality of administrative and executive acts and to review statutes on human rights and European Union law grounds.  It cannot be conceived as the ‘ultimate guardian of the constitution’, but it clearly discharges a range of constitutional functions which are in many ways approximate to those carried out by top courts elsewhere.  It is not a federal court, but has power to determine competence disputes between the Westminster Parliament and devolved legislatures and administrations.  It is not an agent of the legislature, though its work is conditioned by the doctrine of parliamentary sovereignty.  It undertakes no constitutionally-prescribed checking function, though it can be seen to play a ‘counter-majoritarian’ (at paras 209-211) role in holding government to account.  It is not a political institution, though it clearly makes decisions that are politically controversial.  As a result, the UKSC neither clearly fits, nor completely eschews, the institutional precedents of other national apex courts.

Some explanation for this can be found in the fact that it was never an objective of the Labour government to engage (in this area at least) in radical constitutional redesign.  The transition from Appellate Committee of the House of Lords to Supreme Court displays much of the continuity and incrementalism that is characteristic of constitutional change in the United Kingdom; neither the jurisdiction nor composition of the UKSC, for instance, depart radically from those of the House of Lords.

At the same time however, as a result of the of the UK’s traditional apathy towards separation of powers as a template of institutional design, the severing of structural links between the legislature and top court was a marked development, and the most visible aspect of the Constitutional Reform Act’s new regime.  The creation of a formal apex court, autonomous of the elected branches of government, is also a milestone in the formalisation of the judicial branch and its functions and a manifestation of the ongoing shift in the balance of power, away from politicians towards the judges, which has implications for all constitutional institutions.

Any attempt to characterise the UKSC has to take account of the past: the judicial House of Lords was subordinated to Parliament, and did not play a leading role in the interpretation of constitutional law and politics.  Any new conception also has to take account of the present: the incremental accrual of functions relating to EU Law, individual rights and devolution – alongside the burgeoning constitutional function of the common law – have begun to cement the place of the UKSC as a constitutional actor in its own right.  Lord Hope has spoken of the ‘added authority’ carried by decisions handed down by a Supreme Court independent of Parliament.  In terms of powers, Lord Phillips has acknowledged that the UKSC discharges ‘some of the functions of a constitutional court’, while in Parliament the suggestion has been made that the UKSC is becoming ‘increasingly robust’.  Finally, the conception of the UKSC has to make provision for the future: there are judicial dicta by Lord Steyn and Baroness Hale in Jackson that the courts may claim an inherent power to strike down legislation or, at least, to render ineffective any Act of Parliament deemed to be ‘unconstitutional’.  Whilst this may still be viewed as a hypothetical scenario, how widespread is the view amongst the senior judiciary that Parliament can with impunity violate the fundamental precepts of the rule of law?

The precise constitutional status of the UKSC is difficult to encapsulate, but two traps need to be avoided.  The UKSC does not have suprema potestas: the establishment of the UKSC will not usher in an age of ‘judicial supremacy’.  But neither is it ‘a third chamber in perpetual session’: the passive-subservient conception of the United Kingdom’s apex court no longer reflects judicial attitudes, nor the status of the UKSC as an independent constitutional actor.

In short, the essence of modern constitutionalism is not determined by its form (e.g. visible separation of powers, documentary constitution, higher-order law etc.) but through its content.  The ‘new constitutional settlement’ that consists of the Human Rights Act 1998, the devolution legislation of 1998, and the Constitutional Reform Act 2005 is best understood as allowing for a constitutional relationship between Parliament and the courts in which each is able to make a distinctive contribution to the furtherance of rights protection and the articulation of constitutional standards.  The search for an ultimate constitutional authority is a diversion: as Lord Cooke has argued ‘legislative and judicial functions are complementary; the supremacism of either has no place.’

In providing a focal point around which the judicial checking and balancing functions of the UK constitution might coalesce, the creation of the UKSC finally vindicates aspects of the French and American constitutional paradigm.  However, instead of forming part of a revolutionary constitutional moment or explicit break with the past, the UKSC ushers in a more visible separation of powers by stealth.  Alongside the traditional legislative-executive dualism, and skirting the extremes of constitutional subordination and superiority, the UKSC has emerged as an autonomous and co-equal agent of the constitution.

 

Roger Masterman is Reader in Law at Durham University.

Jo Murkens is Senior Lecturer in Law at the London School of Economics and Political Science

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