UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

David Mead: PUBLIC LAW CURRENT SURVEY

davidmeadThe 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 May to 31 July 2014)

Administration of Justice

 Legal Aid

It was unlawful to seek, by means of secondary legislation proposed under s.9 of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), to remove from the right to legal aid those who failed a residence test. So held the High Court in a challenge by the PLP to the Secretary of State’s proposed Statutory Instrument. It was ultra vires since LASPO did not permit such a criterion to be introduced by secondary legislation. It extended the scope and purpose of the statute and was thus outwith the power to add, vary or omit services conferred by s.9 of LASPO. The only criterion that emerged from analysis of the statutory provisions, read as a whole, related the identification and provision of services to need: thus, secondary legislation could only provide an opportunity to add, vary or omit those cases when, from time to time, the Lord Chancellor judged that a greater need had arisen or a lesser need had emerged for distribution of civil legal aid. Furthermore, the proposed SI was discriminatory in so far as in those cases where the state had chosen to provide legal assistance (in contrast to those cases where the UK was, by virtue of the HRA or under the common law right of effective access to the court, obliged to provide legal assistance, which latter cases were governed by s.10 of LASPO), it planned to refuse such assistance to those who would otherwise qualify save for the fact that they did not meet a residence test. Justifying discrimination in the provision of legal services simply on the ground of the need to save money was no answer to the allegation of discrimination on the grounds of residence. The mere saving of cost could not justify discrimination. The other justification offered by the Lord Chancellor was the need for public confidence in the legal aid system. In the context of a discriminatory provision relating to legal assistance, the Court’s view was that invoking public confidence amounted to little more than reliance on public prejudice (R (oao Public Law Project) v Secretary of State for Justice [2014] EWHC 2365 Admin).

It had been wrong in law to stay a complex fraud trial for abuse of process on the ground that the accused could no longer receive a fair or on the ground that it was necessary to protect the integrity of the criminal justice system in cases where, because of a 30% cut in remuneration offered to barristers in Very High Cost Cases (VHCC), barristers had collectively withdrawn from the scheme so that none of the accused was legally represented. So held the Court of Appeal overturning a decision of Leonard J. His holding that to allow the State an adjournment to put right its failure to provide the necessary resources to permit a fair trial to take place would amount to a violation of the process of the court was wrong in principle. It was quite wrong to seek to link the Financial Conduct Authority as prosecuting authority and those responsible for the provision of legal aid or to speak of “its own failure” as if there were a joint enterprise in which both were involved. Neither could the finding of the judge that there was no realistic prospect of competent advocates with sufficient time to prepare being available in the foreseeable future be sustained, and it was unreasonable for him to reach it. At the date of the hearing before Leonard J, there was a sufficient prospect of a sufficient number of Public Defender Service advocates who were then available to have enabled a trial to proceed in January 2015. That pool included a sufficient number of advocates of the rank of QC and was available at the date of the hearing. There was thus no question of a present breach of Article 6 and, should that state of affairs have arisen in the future, there would, in any event, be remedies short of a stay that could be deployed (R v Crawley [2014] EWCA Crim 1028).

Confidentiality (and data protection)

Data Retention

The Data Retention and Investigatory Powers Act received Royal Assent on 17 July – having been debated in Parliament for only two days after being introduced by the government as an emergency measure to respond to the ECJ judgment in Seitlinger and Digital Rights Ireland (discussed in the last current survey) in relation to Directive 2006/24/EC on retaining certain communications data. It also amended Part 1 of the Regulation of Investigatory Powers Act 2000, and provided for the extra-territorial application of that Part and about the meaning of “telecommunications service” for the purposes of that Act. Draft Regulations were published on 11 July.

Information Commissioner

The Information Commissioner’s annual report for 2013/14 was published on 22 July with the Commissioner warning that it had never been more important that the general public had an independent regulator overseeing the handling of people’s personal data, something in turn dependent on strong powers and sustainable funding.

Right to be forgotten

An internet search engine operator was responsible for the processing that it carried out of personal data which appeared on web pages published by third parties. Thus, if, following a search made on the basis of a person’s name, the list of results displayed a link to a web page which contained information on the person in question, that data subject may approach the operator directly and, where the operator did not grant his request, bring the matter before the competent authorities in order to obtain, under certain conditions, the removal of that link from the list of results. So held the ECJ held, contrary to an earlier opinion of A-G Jaaskinen, in a challenge under the 1995 Data Protection Directive (Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31)) brought by G who objected that searches against his name on Google produced links to two newspaper articles that referred to old bankruptcy proceedings against him some twelve years before, proceedings that had been fully resolved for a number of years such that reference to them was now entirely irrelevant (Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González Case C-131/12, 13 May).

The House of Lords European Union Committee reported on the case “EU Data protection law: a right to be forgotten?” (HL40, 30 July) and concluded that it was unworkable, unreasonable and wrong in principle.

Constitution

Codified constitution?

On 10 July, the Political and Constitutional Reform Select Committee launched a major consultation on “A New Magna Carta” into the shape of our democracy today. That Committee also published its report “The constitutional role of the judiciary if there were a codified constitution” (HC 802 14 May). If the UK moved towards a codified constitution, one way of addressing the question of what powers the judiciary should have if they held a piece of legislation to be unconstitutional, would be to introduce the concept of a “declaration of unconstitutionality” along lines of declarations of incompatibility under s.4 of the HRA. If the UK were to adopt a codified constitution, there would be no need for a separate constitutional court.  The Supreme Court could adjudicate on constitutional matters.

House of Lords

Following the appointment of Baroness Stowell of Beeston as Leader of the Lords on the basis that she would attend Cabinet rather than be a full Cabinet member, The House of Lords Constitution Committee reported on the status of the Leader of the House of Lords (HL 41, 25 July 2014). It concluded that part of the role of the Leader of the House was to give “unpalatable” advice to other ministers about the views of the House of Lords on departments’ policies, and to advise colleagues on the chances of legislation passing the House or how long it might take. If, as now, the Leader was not a full member of the Cabinet, “there may be a risk that the views of the House are not fully listened to in the Cabinet.” The committee was not aware of any Leaders of the House of Lords who were not full members of the Cabinet and suggested this is the first time that the Cabinet had not included any representatives of the House of Lords as full members. The report stated that it sits “uneasily” with the constitutional principle that ministers are drawn from a bicameral legislature for one House of Parliament to be unrepresented in the full Cabinet.

The House of Lords Privileges and Conduct Committee has published a report recommending changes to the Code of Conduct (HL 182 12 May).

The House of Lords Reform Act 2014 (which received Royal Assent on 14 May) provides for resignation from the House of Lords and for the expulsion of Members of the House of Lords in specified circumstances.

Lord Chancellor

The House of Lords Constitution Committee is currently taking evidence for its inquiry into the office of Lord Chancellor.

Devolution 

Case law

The Agricultural Sector (Wales) Bill 2013, establishing a scheme for the regulation of agricultural wages in Wales was within the legislative competence of the National Assembly for Wales, as a devolved matter relating to agriculture with s.108 of and Schedule 7 to the Government of Wales Act 2006, rather than (as had been argued by the Attorney General for England and Wales) to employment and industrial relations, which had not been devolved to the Welsh Assembly. So held the Supreme Court on a reference by the Attorney-General under s.112(1) of the 2006 Act. The question whether a provision was outside the competence of the Assembly must be determined according to the rules in s. 108 and Schedule 7; the description of the 2006 Act as being of great constitutional significance could not be taken, in itself, to be a guide to its interpretation. The statute must be interpreted in the same way as any other statute; and if help was needed as to what the words mean, it was proper to have regard to the purpose that lay behind the 2006 Act, namely to achieve a constitutional settlement. In interpreting s.108 and Part 1 of Schedule 7, it was not open to the Court to consider inter-governmental correspondence that preceded the 2006 Act but was never made public or disclosed to Parliament. Neither did the fact that a power was not conferred during the first or second phases of devolution assist, as each of the three phases significantly increased the legislative competence of the Assembly. On a true construction, the Bill related – that is had “more than a loose or consequential connection” – to agriculture in its broader sense as meaning the industry or economic activity of agriculture in all its aspects. It appeared from the consultation process that led to the Bill that its purpose was to regulate agricultural wages so that the agricultural industry in Wales would be supported and protected. Provided that a Bill fairly and realistically satisfied the test set out in ss.108(4) and (7) and was not within an exception, it did not matter whether it might also be capable of being classified as relating to a subject which had not been devolved, such as employment and industrial relations. The legislation did not require that a provision should only be capable of being characterised as relating to a devolved subject (Agricultural Sector (Wales) Bill – a Reference by the Attorney-General for England and Wales [2014] UKSC 43).

Legislation

The Procurement Reform (Scotland) Act 2014 received Royal Assent on 17 June, making provision about the procedures relating to the award of certain public contracts and requiring certain authorities to produce procurement strategies and annual reports.

The Education (Wales) Act 2014 makes provision about the Education Workforce Council (formerly the General Teaching Council for Wales), extends the registration, qualification and training requirements of the education workforce, makes provision about the determination of school term and holiday dates in Wales and in connection with appointments to Her Majesty’s Inspectorate of Education and Training in Wales.

The Local Government (Northern Ireland) Act – passed on 12 May – is wide-ranging and includes provisions relating to disqualification of councillors, the discharge of council functions, executive arrangements, and conduct of councillors and council meetings, and performance improvement.

Parliamentary: reports and debates

The House of Lords Constitution Committee report “Scottish independence: constitutional implications of the referendum” (HL 188 16 May) was debated by the House on 24 June. The Scottish Affairs Committee produced four reports relating to devolution in the period: “The Referendum on Separation for Scotland: no doubt–no currency union” (HC 499, 21 July), “Our Borderlands, Our Future” (HC 556, 14 July), “The Referendum on Separation for Scotland: Implications for Pensions and Benefits” (HC 498, 6 July) and “The Referendum on Separation for Scotland: Scotland’s Membership of the EU” (HC 1241 27 May) alongside reports on the bedroom tax and blacklisting in employment. The Scottish Parliament’s own EU and External Relations Committee “Report on the Scottish Government’s proposals for an independent Scotland: membership of the European Union” (SP 530) was published on 23 May. The Welsh Affairs Committee published its report “Energy generation in Wales: Shale Gas” (HC 284 16 June) and is currently holding inquiries into cross border health arrangements, prisons in Wales and the treatment of offenders, and the international representation and promotions of Wales by UK bodies.

Elections

Campaigning

The House of Lords Communications Committee reported that political jockeying over TV election debates risked a return to the historical pattern of failure to ensure the debates reach our screens (“Broadcast General Election Debates” HL 171, 13 May). This would be regrettable in light of powerful evidence that the public expected the debates to happen again. Research also showed that the debates helped to energise and engage the public in the electoral process, with the most striking impact on the young and relatively disengaged.

An injunction that prevented B from distributing leaflets in which he urged people not to vote for a mayoral candidate who allegedly provided cover for a neo-Nazi Organization violated the right of free speech in Article 10 in giving undue weight and concern to the protection of the candidate’s personality rights above B’s freedom of expression. So held the European Court upholding an application against Germany after B was prevented by a court order from distributing the leaflet and making other assertions of fact which could be taken to depict the candidate as a supporter of neo-Nazi organisations. In doing so, the German courts had improperly considered the leaflets to be assertions of fact, and attached a a disproportionally high degree of factual proof, that B had failed to discharge, when it was clear that there were elements of value judgment in the leaflets that were incapable of proof. In requiring “compelling proof”, they had applied a degree of precision that came close to the one usually required for establishing the well-foundedness of a criminal charge. That degree of precision could hardly be compared to that to be observed when someone’s opinion on a matter of public concern was concerned as this undoubtedly was. The leaflet was distributed in the run-up to the mayoral elections and set out B’s view of a candidate’s suitability for the office and was therefore of a political nature and concerned a question of public interest at the time. This was all the more so when the limits of acceptable criticism were properly wider as regards a politician than as regards a private individual (Brosa v Germany App 5709/09, 17 April).

Voting ban

The ban preventing prisoners from voting in the 2014 referendum, contained in the Scottish Independence Referendum (Franchise) Act 2013, was not incompatible with A3, P1 or Article 10 of the ECHR; the duty on states in the First Protocol “to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature” did not extend to votes in a referendum. The Court handed down judgment with reasons to follow – at the time of writing these were not available (Moohan and Gillon v Lord Advocate 24 July).

European Union

Balance of Competencies

The Government published its various Reviews of the Balance of Competencies between the UK and the European Union including those covering the Single Market: Freedom of Movement, Competition and Consumer Policy, EU Budget , Cohesion Policy, Fundamental Rights and Social and Employment Policy.

The Government published its response to the House of Commons European Scrutiny Committee Report (43rd Report, 2013–14, HC979) “The application of the EU Charter of Fundamental Rights in the UK: a state of confusion” (referred to in the last Current Survey)

Commission

Jean-Claude Juncker, the former Prime Minister of Luxembourg, was elected President of the European Commission, to replace Jose Manuel Barroso, by a strong majority of 422 votes in the European Parliament plenary session in July. This followed a 27:2 vote by the European Council on 27 June 2014, with the UK (and Hungary) voting against his candidature preferring a more reforming candidate. Juncker’s political guidelines for the next European Commission were set out in “A New Start for Europe: My Agenda for Jobs, Growth, Fairness and Democratic Change”.

Parliamentary

On 10 July, the House of Commons held a general debate on the UK’s Justice and Home Affairs Opt-outs. 

Freedom of speech

Anonymity orders

An anonymity order, made under s.11 of the Contempt of Court Act 1981, during the course of deportation proceedings against A (commenced after A was convicted for sexual offences with a child) was not made unlawfully. So held the Supreme Court rejecting a challenge by the BBC to the order, in terms of both substance and process. It was an accepted fact that if A was being deported became known in his country of origin there would be a real risk of his article 3 rights being infringed. The anonymity order had been made, withholding A’s identity, was necessary to safeguard his article 3 rights and to preserve the integrity of the court proceedings; publication of the information would give A grounds for a fresh application to the Home Secretary and frustrate the proceedings. There were exceptions to the general constitutional principle of open justice, public scrutiny of the courts and media reporting of proceedings, important as they were. The courts have an inherent jurisdiction to determine how the principle of open justice should be applied and can permit the identity of a party or witness to be withheld from public disclosure where necessary in the interests of justice. Central to the court’s evaluation would be the purpose of the open justice principle, the potential value of the information in advancing that purpose, and any risk of harm that its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others. The principle of open justice was protected by both the ECHR and at common law, and the latter remains in vigour even where Convention rights also apply. The use of s.11 was not limited to protecting the public interest in the administration of justice, or to cases where members of the public are present in court. Section 12 of the HRA did not apply to s.11 applications as they were not applications for relief made against any person. Fairness nevertheless required the media to have an opportunity to be heard, but both this and the media’s right to an effective remedy were secured by enabling any person affected to seek recall of the order promptly at a hearing inter partes, as was the case here for the BBC. In terms of Article 10, the arguments in favour of making the order were overwhelming, and necessary in a democratic society in order to protect the integrity of the legal proceedings and A’s article 3 rights. The order allowing A to withhold his identity was also in accordance with the court’s common law powers (A v BBC [2014] UKSC 25).

Social Media

The House of Lords Communications Committee report “Social Media and Criminal Offences” (HL 37 29 July) concluded that legislation currently in existence, including the Communications Act 2003 and the Protection from Harassment Act 1997, along with the guidelines for applying them published by the Director of Public Prosecutions, were enough to ensure that criminal offences committed using social media could be adequately prosecuted.

Government and Civil Service

The Commons Political and Constitutional Reform Committee called for more clarity on the Prime Minister’s powers in its report “The Role and Powers of the Prime Minister” (HC 351, 24 June), and argued that more of them should be put into statute to allow for greater transparency and accountability. The Committee continued taking evidence in its inquiry into Revisiting the Cabinet Manual.

In July, there was a Cabinet reshuffle including new appointments as Foreign Secretary, Leader of the House, Chief Whip and Attorney-General.

Human Rights

Assisted suicide

Under the UK’s constitutional settlement, the courts have the constitutional authority to make a declaration of incompatibility in relation to the blanket ban on assisted suicide, contained within s.2 of the Suicide Act 1961. So held a majority of the Supreme Court in various applications challenging both the ban and the DPP’s prosecution policy. While the Supreme Court was unanimous in holding that s.2 engaged Article 8, as it prevents people who are physically unable to commit suicide without assistance from determining how and when they should die, the Court was divided on the appropriate resolution. While (per Lord Mance, Lord Neuberger and Lord Wilson) the sensitive and controversial nature of the issue did not justify the court ruling out the possibility that it could make a declaration of incompatibility, it would be inappropriate for a court to decide whether s.2 was incompatible with Article 8 before giving Parliament the opportunity to consider the position in the light of this judgment. In contrast, Baroness Hale and Lord Kerr would have issued a declaration of incompatibility. In making no exception for those whose expressed wish to die reflects an autonomous desire rather than undue pressure, the current ban on assisting suicide was incompatible with Article 8. While Lord Sumption, Lord Hughes, Lord Reed and Lord Clarke accepted that the courts had jurisdiction under the HRA to determine the compatibility of the universal ban with Article 8, that question turned on issues which Parliament was in principle better qualified to decide, it involving important elements of social policy and a moral value-judgment, which were inherently more suitable for decision by Parliament as the representative organ of the constitution. Under present circumstances the courts should respect Parliament’s assessment. On the second question, the Court unanimously held that the DPP’s policy was lawful. It was one thing for the court to decide that the DPP must publish a policy, and quite another for the court to dictate what should be in that policy. The exercise of judgement by the DPP, the variety of relevant factors, and the need to vary the weight to be attached to them according to the circumstances of each individual case, were all proper and constitutionally necessary features of the system of prosecution in the public interest (R (oao Nicklinson and another) v Ministry of Justice; R (oao AM) v DPP [2014] UKSC 38).

Children

The JCHR report “Legal Aid: Children and the Residence Test” (HC 234 / HL 14, 30 June) concluded that the impact of the legal aid residence test on children would lead to breaches by the UK of the UN Convention on the Rights of the Child because it will in practice prevent children from being effectively represented in legal proceedings which affect them.

Criminal conviction certificates

The system of enhanced criminal record certificates contained in Part V of the Police Act 1997 constituted unlawful violations of privacy, contrary to Article 8 of the ECHR. So held the Supreme Court, upholding the declarations of incompatibility granted by the Court of Appeal in respect of ss. 113A and 113B, in claims brought by two individuals against whom disclosures of cautions (some six to eight years in the past) were made. It was impossible to read and give effect to the provisions in a way which was compatible with T’s or JB’s Convention rights. Neither individual had any other criminal record. Laws requiring a person to disclose his previous convictions or cautions to a potential employer constituted an interference with Article 8. Disclosures in the ECRCs also constituted Article 8 interferences, significantly jeopardising T’s and JB’s entry into their chosen fields of endeavour. The majority of the Court considered the sections were incompatible with Article 8 because they failed to meet the requirement of legality, that is the interference was not “in accordance with law” because the legislative scheme required indiscriminate disclosure by the state of personal data which it had collected and stored but without adequate safeguards against arbitrary interferences with Article 8 rights as to enable the proportionality of the interference to be adequately examined. The Court unanimously held too that the interferences could not, in any event, be said to meet the requirement of being “necessary in a democratic society”. Lord Wilson noted that it was the Home Secretary who identified a need to scale back the criminal records system “to common sense levels”. Lord Reed pointed to a lack of a rational connection between dishonesty as a child and the question of whether, as an adult, the person might pose a threat to the safety of children with whom he comes into contact (R (oao T and JB) v Secretary of State for the Home Department [2014] UKSC 35).

Damages

The last issue noted the decision of the High Court that the Metropolitan Police had breached the Article 3 duty owed to the victims of the so-called black cab rapist for failing to carry out an effective investigation. In DSD and NVB v The Commissioner of Police for the Metropolis [2014] EWHC 2493, Green J turned to the question of quantum. In doing so, he provides a useful guide to and an analysis of the principles underpinning an award of damages under s.8 of the HRA, including an overview of the growing corpus of case-law.

Fair trial

A British citizen on trial abroad, facing charges of drug smuggling in Indonesia, and possible death penalty, was not within the jurisdiction of the UK for the purposes of Article 1 of the ECHR, which is primarily territorial. It was not possible to identify any relevant acts of diplomatic or consular agents or any relevant exercise of authority or control by such agents over S which could bring the exception into play, and which would have entitled S to free legal representation within Article 6(3)(c). A refusal to instruct or fund lawyers on behalf of S could not constitute an exercise of authority or control over her. The power the Secretary of State has under domestic law to provide assistance, including legal funding, for British citizens facing capital charges abroad, was not derived from statute but was an exercise of the prerogative. There was no necessary implication that a blanket policy was inappropriate, or that there must always be room for exceptions, when a policy is formulated for the exercise of a prerogative power. In any event, the evidence was that the Foreign Office was prepared to consider whether the policy should be modified in the face of the particular circumstances of S’s case. The department responded with urgency to S’s unexpected death sentence, and put S in contact with an experienced local lawyer who was willing to conduct the appeal on an expenses-only basis. Their reasons for not making an exception to their no-funding policy were not irrational. That said, S remained in jeopardy and urgently in need of legal help. Circumstances had radically developed in unforeseen ways as to call for an urgent review of the policy as it applied to S in light of the current information (R (oao Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44).

Freedom of Religion

On 1 May, MPs took part in a general debate on freedom of thought, conscience and religion around the world, a debate scheduled by the Backbench Business Committee following representations from Naomi Long, Dr Julian Lewis and Mark Pritchard.

Lady Hale gave the annual Human Rights Lecture for the Law Society of Ireland “Freedom of Religion and Belief” on 13 June.

It was not unlawful for the Secretary of State to seek to remove B and his daughter, Iranian nationals, to France, pursuant to Dublin II, having refused their asylum claims on third safe country grounds despite the banning by French Law of, in effect, the wearing of the burka and niqab in public. It was not a violation of any of B’s rights in Articles 3, 8, 9, 11 or 14 of the ECHR, coming nowhere near the stringent flagrancy test. It was also clear that the Minister had throughout considered the best interests of the child B, as required under s.55 of the Borders, Citizenship and Immigration Act 2009 (R (oao Baradaran) v Secretary of State for the Home Department [2014] EWCA Civ 854).

The French law prohibiting the concealment of one’s face in public places (Law no. 2010-1192 of 11 October) did not violate Article 8 or Article 9, or Article 14, of the ECHR. So held the Grand Chamber by a majority (and unanimously for Article 14) in a claim brought by a French national, who was a practising Muslim, who argued that the effect of the law was to ban her from wearing either the burka or niqab in public. Personal choices as to one’s appearance related to the expression of an individual’s personality, and thus fell within the notion of private life. Being prevented from wearing in public places clothing that she was required to wear by her religion raised an issue with regard to the freedom to manifest one’s religion or beliefs. There was a “continuing interference” with the exercise of the applicant’s rights under Articles 8 and 9, as she was confronted with a dilemma: either she complied with the ban and thus refrained from dressing in accordance with her approach to religion, or she refused to comply and would face criminal sanctions. The ban was not “necessary in a democratic society” in order to fulfil the aim of public safety. In view of its impact on the rights of women who wished to wear the full-face veil for religious reasons, a blanket ban on the wearing in public places of clothing designed to conceal one’s face could be regarded as proportionate only in a context where there was a general threat to public safety. The French Government had not shown that the ban fell into such a context. The ban though was a proportionate response to the legitimate aim of “living together”, an element of protecting and preserving the rights of others. The face played a significant role in social interaction. It was legitimate to restrict in places open to all, practices or attitudes which fundamentally call into question the possibility of open interpersonal relationships, which, by virtue of an established consensus, formed an indispensable element of community life within the society in question. The barrier raised against others by a veil concealing could thus be seen as breaching the right of others to live in a space of socialisation which made living together easier. The ban was proportionate: while it mainly affected certain Muslim women, there was no restriction on the freedom to wear in public any item of clothing which did not have the effect of concealing the face. Further, the ban was not expressly based on the religious connotation of the clothing in question but solely on the fact that it concealed the face. In addition, the sanctions provided for by the Law were among the lightest that could have been envisaged. Furthermore, as the question whether or not it should be permitted to wear the full-face veil in public places constituted a choice of society, France had a wide margin of appreciation such that the Court had a duty to exercise a degree of restraint in its review of Convention compliance, since such review led it to assess a balance that had been struck by means of a democratic process within the society in question. This was all the more so given the lack of common ground between Member States (SAS v France Application no. 43835/11 1 July).

Property 

It was a disproportionate interference with the right to peaceful enjoyment of possessions in A1, P1 for a confiscation order (of £29,000) to be imposed – following conviction for obtaining pecuniary advantage by deception through using a false passport – where that amounted to the confiscation of someone’s entire savings over nearly four years of genuine work and when the proceedings as a whole had not afforded a reasonable opportunity to put a case to the competent authorities so that they could establish a fair balance between the conflicting interests at stake, namely P’s right to protection of his property and the requirements of the general interest. As domestic law had only permitted the national courts to consider whether or not a confiscation order was “oppressive” or an “abuse of process” at the time P’s case was decided (R v Waya [2012] UKSC 51not yet having been decided), the scope of review carried out by them had been too narrow (Paulet v UK App 6219/08, 13 May; on confiscation orders, see too R v Ahmad; R v Fields [2014] UKSC 36).

While it was foreseeable as an established principle of the common law of receivership that a court-appointed receiver, including one made under s.48 of the Proceeds of Crime Act 2002 (following an application by the CPS) may draw his remuneration and expenses to the assets placed by the court in his/her control, it was disproportionate to order that the receiver’s expenses be drawn from the companies. So held the Supreme Court in rejecting an appeal by the CPS against decisions that the receiver (B) not be permitted to draw £772,000 expenses and remuneration from E’s assets. E was a holding company for a number of trading cash and carry retail outlets. The orders were sought because the CPS was conducting a covert investigation into a suspected fraud on HMRC, allegedly carried out by W and H (joint beneficial owners of E Group) through E group companies. The taking of property without compensation was, in general, a disproportionate interference with A1P1 of the ECHR. In this case E Group was neither defendant – the defendants being W and H – nor (as the Court of Appeal found) was there any reasonable cause for regarding E Group assets as those of the defendants at the time when it was made. It was akin to seeking to use the assets of an innocent defendant to cover the costs of detaining and prosecuting him or her. The receiver would have a claim in unjust enrichment against the CPS (Barnes v EastEnders Group plc [2014] UKSC 26).

Privacy

It violated a patient’s procedural rights under Article 8 not to be consulted in the process leading to a “Do Not Attempt Cardio-Pulmonary Resuscitation” (DNACPR) notice, and the same would hold as a matter of common law. While it would be inappropriate (and therefore not a requirement of Article 8) to involve the patient in the process if the clinician considered that to do so was likely to cause her to suffer physical or psychological harm, doctors should be wary of being too ready to exclude patients from the process on the grounds that their involvement was likely to distress them. Many patients may find it distressing to discuss the question whether CPR should be withheld from them in the event of a cardio-respiratory arrest. If however the clinician formed the view that the patient would not suffer harm if she were consulted, the fact that she may find the topic distressing was unlikely to make it inappropriate to involve her. So held the Court of Appeal in a claim brought by the family of T, who died in Addenbrookes hospital. A few weeks after being diagnosed with lung cancer with an estimated life expectancy of 9 months, T sustained a serious cervical fracture after a major road accident and admitted to the hospital. She had chronic respiratory problems and was placed on a ventilator, but did not respond to treatment for her chest infection. Following a review of her treatment, a DNACPR notice was placed on her notes. The family claimed that in imposing the notice without adequate consultation, and without notifying her of the notice, the hospital breached T’s rights under Article 8 of the ECHR, as did failing both to make its DNACPR policy available to her and to have a policy which was clear and unambiguous. Claims were also brought against the Secretary of State for failing to publish national guidelines but these were not upheld (R (oao Tracey) v Cambridge University Hospitals NHS Foundation Trust and the Secretary of State for Health [2014] EWCA Civ 822).

Socio-economic rights

It had been lawful for a council to reduce a care package to aid someone’s toileting needs, no longer paying for night-time carer but funding instead only incontinence pads for a 60-year old woman who had very limited mobility as a result of a stroke. While this very distressing situation, and the indignity it brought, did constitute an interference with the right to respect for her family and private life under Article 8, it pursued a legitimate aim, namely the economic well-being of the State and the interests of other care-users. The interference was “necessary in a democratic society”, especially when weighed against the economic well-being of the State. States had a wide margin of appreciation in issues involving social, economic and health-care policy, especially when deciding how to allocate scarce resources. It was therefore not for the Court to substitute its own assessment of the merits of the contested measure for that of the competent national authorities. The Court found that both the local authority (via regular care reviews) and the national courts (including the Court of Appeal and the Supreme Court) had balanced M’s need for care with its social responsibility for the well-being of other care-users in the community at large. It was thus proportionate (McDonald v UK App 4241/12, 20 May).

Human Rights Act and the ECHR.

There has been much media speculation about the future of the HRA post-2015, especially in light of the change in personnel in the office of Attorney-General. While their plans have not yet been firmed up, current Conservative thinking seems to be to re-align the balance of power between Strasbourg judges and Westminster politicians by giving a form of democratic override to ECHR judgments, while ostensibly remaining within the Council of Europe and not amending Article 46. This was reported in a leaked document by former A-G Dominic Grieve as a “a legal car crash” albeit one with “a built-in time delay”. Labour too, according to a piece in the Daily Telegraph, is seeking to resituate power but with a focus on s.2 and the duty to “to take account”. In June, Lord Phillips contributed to this debate; his annual lecture to the Centre of European Law at Dickson Poon School of Law was “European Human Rights – A Force for Good or a Threat to Democracy?”

Judicial Review

The House of Lords Select Committee on the Constitution (2nd report, HL 18, 4 July) on the Criminal Justice and Courts Bill considered in detail the Government’s proposals to reform judicial review. On 30 June, the House of Lords held a debate, and there is considerable discussion of the proposed change to s.31 of the Senior Courts Act 1981 – refusal of relief (in clause 64 of the Bill) – in debate on the Bill on 28 July, particularly by Lord Brown and Lord Woolf, with Lord Brown calling the Government’s proposals a “double heresy” (Hansard HL Deb 28 July col. 1434 onwards).

The Jobseekers (Back to Work Schemes) Act 2013 was the Government’s attempt to reverse the effects of the UKSC decision in Reilly No.1. The 2013 Act retrospectively validated the 2011 Regulations (found by the Court of Appeal in that earlier litigation to be ultra vires), retrospectively validated all notification letters that had failed to comply with the requirements in the 2011 Regulations, and retrospectively validated sanctions which had been imposed pursuant to the 2011 Regulations. The High Court held, in this further challenge by Reilly, that the 2013 Act was incompatible with Art. 6(1) ECHR and granted a declaration under s.4 of the HRA. Although Parliament was not precluded in civil matters from adopting new retrospective provisions to regulate rights arising under existing laws, the principle of the rule of law and the notion of a fair trial and equality of arms contained in Article 6(1) (according to Strasbourg case-law) “precludes any interference by the legislature… with the administration of justice designed to influence the judicial determination of a dispute” or “influencing the judicial determination of a dispute to which the State is a party”. This can only be justified “on compelling grounds of the general interest” and “any reasons adduced to justify such measures be treated with the greatest possible degree of circumspection”. Such principles also accurately reflected fundamental principles of the UK’s unwritten constitution. Here, the Secretary of State was the opposing party in the earlier litigation. The 2013 Act was promoted by the Secretary of State and enacted by Parliament in March 2013, and was directly targeted at resolving the litigation in Reilly No. 1 and so amounted to an interference in ongoing legal proceedings brought R, as it influenced the judicial determination in favour of the Secretary of State. As to the second claimant’s claims under A1, P1 by contrast, he was not here deprived of an existing possession; this was not a revocation of benefit previously received, nor a demand for repayment. The mere fact that he had been paid a benefit in respect of an earlier period did not entitle him to continuing payments in the future if he no longer met the necessary conditions. The 2013 Act did not therefore engage A1, P1 (R (oao Reilly and Hewson) v Secretary of State for Work and Pensions [2014] EWHC 2182 Admin).

Judiciary

Speeches

Lady Hale gave the Fiona Woolf Lecture for the Women Lawyers’ Division of the Law Society “Women in the Judiciary” on 27 June.

Personnel

Lord Justice Moses resigned as Lord Justice of Appeal with effect from 21 June and will become Chairman of the Independent Press Standards Organisation. Mr Justice Tugendhat retired from the High Court in June. Also in June, Jennifer Roberts QC was appointed a Justice of the High Court (Family Division) and Mark Warby QC to the Queen’s Bench Division, as well as HHJ Goss (QBD) in May. Lord Justice Moore-Bick was appointed as Vice-President of the Court of Appeal (Civil) in May.

Local Government

The Communities and Local Government committee (HC 503 9 July) report “Devolution in England: the case for local government” called for the transfer of a range of tax raising powers to local authorities along with greater flexibility to borrow for investment. Releasing groups of authorities in England—centred on large city and county regions—from the fiscal grip of Whitehall could re-energise local democracy, boost England’s economic performance and lead to more balanced growth across the country. In Scotland, the parliamentary Local Government and Regeneration Committee report “Flexibility and Autonomy in Local Government” (SP 573 27 June) recommended increased powers and freedoms for local authorities.

Parliament

Legislation

Public General Acts passed in the period include:-

  • The Immigration Act, inter alia limiting access to services, facilities and employment by reference to immigration status and providing for the removal of citizenship from persons whose conduct is seriously prejudicial to the United Kingdom’s vital interests.
  • The Defence Reform Act relating to defence procurement and reserve forces.
  • The Care Act inter alia reforming the law relating to care and support for adults and the law relating to support for carers and providing for safeguarding adults from abuse or neglect and about care standards.

Reports

Significant reports not referred to elsewhere in this survey include

  • The Commons Education Committee reported on “The Underachievement of White Working Class Children” (HC 142, 18 June)
  • The Commons Political and Constitutional Reform Committee report “Fixed term Parliaments: the final year of a Parliament” (HC 976 7 May) called on Government, Parliament and all the political parties to use the remaining time before the end of the first ever fixed-term parliament to fully and properly plan ahead of the 2015 election and the next Parliament. As the Committee Chair Graham Allen MP said, “the year ahead of the next general election presents a wonderful opportunity for Parliament, Parties and politicians to demonstrate a better side to the public including exploring real policy choices and holding serious debate. We should be bold enough to use this unique period not just as a conventional legislative year but with imagination and creativity.”

Police

The Commons Home Affairs Committee published its report “Police and Crime Commissioners: Progress to Date” (HC 757, 5 May). HMIC issue two strategic policing requirement reports in June: on dealing with threats to public order, and threats of a large-scale cyber incident, as well as (in July) “Policing in Austerity: Meeting the Challenge”.

Prisons

A person released from prison on a home detention curfew, and then recalled to prison under s. 255 of the Criminal Justice Act 2003, did not have the right under Article 5(4) of the ECHR to challenge that deprivation before a judicial body. So held the Supreme Court in rejecting a challenge by W, who had been sentenced to 18 months in prison for robbery, and released after five months under a home detention curfew pursuant to s.246 of the 2003 Act. Two months later the Secretary of State decided to revoke the licence under s.255, because the appellant’s whereabouts could no longer be monitored in the community, and he was recalled to prison. The decision of the Secretary of State was not subject to any statutory judicial control or review. Under Strasbourg jurisprudence, where a person was lawfully sentenced to a determinate term of imprisonment by a competent court, there was (at least in the absence of unusual circumstances) no question of his being able to challenge his loss of liberty during that term on the ground that it infringed Article 5(4). This was because, for the duration of the sentence period, “the lawfulness of his detention” has been “decided…by a court”, namely the court which sentenced him to the term of imprisonment. On this approach, Article 5(4) could not normally be invoked in a case where, in relation to those serving determinate terms, domestic discretionary early release provisions were operated by the executive. The notion that Article 5(4) was satisfied by the original sentence appeared entirely principled, and the consequence that a person under such a regime had to rely on his domestic remedies, at least unless other Convention rights were engaged, was not unreasonable in practice. The common law should be well able to afford appropriate protection to the rights of people in the position of W without recourse to the ECHR. The Court divided on the question of whether Article 5(4) was capable of applying to the revocation of a mandatory licence, rather than (as here on the facts) a discretionary decision to release on licence. The majority considered Smith and West [2005] UKHL 1 to be incorrect and the observations of Lord Brown in R (Black) v Secretary of State for Justice [2009] UKHL 1 to be wrong in so far as they suggested that domestic law in relation to article 5(4) differed from the Strasbourg jurisprudence. Baroness Hale was of the view that once a prisoner passed the point of mandatory release on licence, the basis for any later recall and detention was the risk of reoffending rather than the original court order and, therefore, Article 5(4) applied (R (oao Whiston) v Secretary of State for Justice [2014] UKSC 39).

Terrorism

Reports

The Independent Reviewer of Terrorism’s Report into the operation of the Terrorism Acts in 2013 was published on 22 July. Among topics covered were recent developments in proscription; alleged ethnic or community bias in the use of police powers; reform of the Schedule 7 port power; developments concerning arrest and detention; the worldwide reach of UK counter-terrorism law; the breadth of the definition of terrorism; and the future of independent review, in the light of recent Government proposals to create an Independent Privacy and Civil Liberties Board (announced as part of the package surrounding the Date Retention and Investigatory Powers Act).

Terrorist trials

In exceptional circumstances, the core of a criminal trial could be held in private and not defeat the principle of open justice. So held the Court of Appeal, varying an order of Nicol J that would have permitted the entirety of the trial to be held in camera, in applications brought by two defendants charged with various offences under the Terrorism Acts 2000 and 2006, and under the Identity Documents Act 2010. On the evidence, there was a significant risk – at the very least, a serious possibility – that the administration of justice would be frustrated were the trial to be conducted in open Court; for what appeared to be good reason, the Crown might be deterred from continuing with the prosecution. That said, there would be no risk to the administration of justice if certain elements of the trial were heard in open Court: swearing in of the jury; reading the charges to the jury; at least a part of the Judge’s introductory remarks to the jury; at least a part of the Prosecution opening; the verdicts; and sentencing (Guardian News and Media v AB CD [2014] EWCA Crim 1861)

 

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.

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This entry was posted on October 2, 2014 by in Current Survey and tagged .
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