UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

David Mead: PUBLIC LAW CURRENT SURVEY

davidmead

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

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

 

Administration of Justice

See also Devolved nations; Human rights; Policing

Anonymity orders

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

Legal Aid

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addressing the situation which would operate, as the applicants saw it, once criminal legal aid for prison law was withdrawn.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

 

Armed forces

Reports

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

 

Confidentiality (and data protection)

Data Retention

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

Information Commissioner

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

Privacy

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

 

Constitution

See Government; Judicial Review; Judiciary

 

Crown

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

 

Devolved nations

Devolved powers

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

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

Legislation

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

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

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

Scottish Referendum

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

Westminster

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

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

 

Discrimination and equality

See Ecclesiastical; Free speech; Judicial Review

 

Ecclesiastical

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

 

Elections

See Devolved nations

 

Environment

 See EU

 

European Union

 See also Confidentiality; Extradition; Judiciary

 Opt-out

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

Charter

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

Financial Transaction Tax

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

Copyright and duties of ISPs

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

Parliamentary activity

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

 

Extradition, deportation and immigration 

Immigration Bill

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

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

Asylum

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

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

Extradition

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

 

Freedom of Information

 Exemptions

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

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

Attorney-General’s certificate

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

Freedom of speech

 See also Administration of justice; EU; Parliament; Policing

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

Government and Civil Service

Parliamentary reports

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

 

Human Rights

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

Article 2

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

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

Article 6

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

Article 11

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

 

Inquiries

See also Human Rights

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

 

Judicial Review

See also Freedom of Information; Inquiries; Policing

Procedure

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

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

Housing

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

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

 

Judiciary 

Appointments

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

Speeches

Speeches given by members of the senior judiciary include:-

Parliamentary

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

 

Local Government 

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

 

Ombudsmen

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

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

 

Parliament

See also Armed forces; Crown; Ombudsman

Procedure

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

Parliamentary Reports

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

e-petitions

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

Legislation

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

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

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

Standards

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

 

Policing

See also Parliament

Crime statistics

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

Use of force

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

Osman duty

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

Police complaints

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

Production Orders

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

Stop and search

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

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

 

Prisoners and mental health detainees

See also Administration of justice; Parliament

Whole life tariffs

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

Mental health and deprivation of liberty

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

 

Public Order

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

 

Terrorism

See also Parliament

TPIMS

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

Counter-terrorism powers

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

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

 

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

 

 

3 comments on “David Mead: PUBLIC LAW CURRENT SURVEY

  1. Pingback: Religion and law round up – 6th July | Law & Religion UK

  2. Pingback: David Mead: PUBLIC LAW CURRENT SURVEY | UK Constitutional Law Association

  3. Pingback: David Mead: Public Law Current Survey (Feb – Apr 2015) | UK Constitutional Law Association

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