UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

David Mead: Public Law Current Survey (Aug – Oct 2015)

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

David Mead new(This survey covers the three-month period 1st August to 31st October 2015)

 

Administration of Justice

Legal Aid

There was no violation of Art. 6 and the right of access to a court for a father to be denied legal aid by the Scottish Legal Aid Board in order to pursue his application for child contact up to the Supreme Court. He had been granted legal aid (for a QC, junior and instructing solicitors) before both the Sheriff’s Court and the Inner House of the Court of Session; the same legal team had agreed to act pro bono before the Supreme Court; and the Supreme Court itself had waived its fees (NJDB v UK App 76760/12 27 October, arising out of NJDB v JEG [2012] UKSC 21).

Speeches

The Lord Chief Justice, Lord Thomas delivered a speech “The Legacy of Magna Carta: Justice in the 21st Century” to the Legal Research Foundation (25 September).

Armed Forces

The Armed Forces Bill was introduced into Parliament on 16 September, and passed second reading on 15 October. The Bill continues the Armed Forces Act 2006 and makes provision about service discipline and about Ministry of Defence fire-fighters. A Select Committee has been convened which will report on the Bill to the House on or before 17 December.

Confidentiality, freedom of information and data protection

Data Protection Directive

A corporate data controller from one member state can be liable to enforcement provisions for data processing in another member state where they constituted an “establishment” in that other state. The concept of ‘establishment’ extended to any real and effective activity — even a minimal one — exercised through stable arrangements. Such could exist with the presence of only one representative if that representative acted with a sufficient degree of stability for the provision of the services concerned in the Member State in question. So held the CJEU in a preliminary reference from the Hungarian Supreme Court in the context of enforcement proceedings brought by the Hungarian data protection authorities against W, a company registered in Slovakia, which ran a property dealing website in Hungary. Within that context, it processed the personal data of the advertisers, and where advertisers did not pay the fees owed, W forwarded their personal data to debt collection agencies. The advertisers lodged complaints with the Hungarian data protection authority which imposed a fine of the equivalent of €32,000 on W for infringing the Hungarian law transposing the directive. W contested that decision before the Hungarian courts (Weltimmo s.r.o. v Nemzeti Adatvédelmi és Információszabadság Hatóság Case C-230/14, 1 October).

Intra-governmental data sharing

A requirement in Health Service Guidance first for NHS Trusts to pass non-clinical information about non-resident patients who had received health services (but who had not paid for them) onto the Secretary of State who in turn was required to pass that information onto the Home Office (so that the individual could be subject to immigration sanctions) was lawful. So held the Court of Appeal in an appeal brought by WXY and Z, challenging the Guidance, part of the scheme for ensuring the recovery of NHS charges from non-residents. While it could constitute disclosure of confidential information, there was, on balancing the competing claims to public interest, no breach of the equitable duty by disclosure. As to vires, the Secretary of State had the power under s. 48 of the National Health Services Act 2006 to require NHS bodies to transmit the information to him in order to help promote a comprehensive health service and to secure the provision of services by facilitating the recovery of charges. It followed that the NHS bodies had the statutory duty (and therefore also the power) to comply with the requirement. There thus (dealing with another argument) could be no fettering the discretion enjoyed by NHS bodies to decide whether or not to impart the information in particular cases, as they had no such discretion. By the same token he could lawfully pass the information on to the Home Office on the basis that it was calculated to facilitate the discharge of the same statutory duty. Alternatively, passing on the information to the Home Office was permitted at common law (following R (Shrewsbury and Atcham BC) v Secretary of State for Communities and Local Government [2008] 3 All ER 548). Both the Charging Regulations and the Immigration Rules gave effect to Government policy, covering the responsibilities of two Departments. The historic doctrine was that the Secretary of State was one person. In the twenty-first century the passing of information from one Department to another for identifiably governmental purposes could more realistically be described as joined-up government. Lastly, the modest interference with the claimants’ Art. 8 rights entailed by disclosure of the information for the purpose for which it was required was “in accordance with the law”; it was common ground that the interference was justified as being “necessary in a democratic society” (WXY & Z v SoS for Health and SoS for the Home Department [2015] EWCA Civ 1034).

The so-called “named person service” requirements in s. 19 of the Children and Young People (Scotland) Act 2014 – an Act designed to form a comprehensive scheme intended to promote and safeguard the rights and wellbeing of children and young people – were not incompatible with a parent’s right to family life under Art. 8, or with the provisions of the Data Protection Directive. So held the Court of Session, Inner House in a challenge to the legislative scheme by various groups and individuals. Part 4 requires service providers to make available, in relation to each child or young person, an identified individual (“named person”), whose general function is to promote, support or safeguard the wellbeing of the child or young person, on behalf of the service provider concerned. The mere creation of a named person, available to assist a child or parent, no more confused or diminished the legal role, duties and responsibilities of parents in relation to their children than the provision of social services or education generally. It had no effect whatsoever on the legal, moral or social relationships within the family. The assertion to the contrary, without any supporting basis, had the appearance of hyperbole; there was no “arrogation by the state to itself of functions which, in a properly regulated democratic state, require to be left with parents” as claimed by the petitioners. If Art. 8 were engaged, the scheme had the appearance of achieving a balance in which the advantages of early detection of potential welfare issues involving a child outweighed any adverse effect of the measure on the Convention rights of parents and children generally. Neither was there substance in the contention that the 2014 Act could not be operated within the confines of the data protection regime. The 2014 Act created a regime involving child welfare which directed what should happen regarding the sharing of relevant information, but assumed that the actions of those operating the system would comply with data protection principles. It did not involve the creation or collection of any new data; personal, sensitive or otherwise. It attempted to introduce a system for the co-ordination and sharing of existing data in relation to children and young persons. On one view, the regime was only needed because of the way in which children’s health, educational and welfare services were separated into different departments of local or central government and other sectors. Last, the 2014 Act did not encroach upon reserved matters. Its pith and substance was child protection. If it had any effect on data protection, that effect was both incidental and de minimis (The Christian Institute and Others v The Scottish Ministers [2015] CSIH 64. The case has been expedited and will be heard by the UKSC on 8-9 March).

Machinery of government

Policy responsibility for data protection, sponsorship of both the Information Commissioner’s Office and the National Archives has been transferred from the Ministry of Justice to the Department for Culture, Media and Sport. Responsibility for Government records management policy has been transferred from the Ministry of Justice to the Cabinet Office.

Safe Harbour

The CJEU declared the Commission’s 2000 “Safe Harbour” decision (Commission Decision 2000/520/EC of 26 July 2000 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the safe harbour privacy principles and related frequently asked questions issued by the US Department of Commerce (OJ 2000 L 215, p. 7)) invalid. So held the Court in a reference from the Irish High Court on this question: did that Commission decision have the effect of preventing a national supervisory authority (here, the Irish Data Protection Commissioner) from (i) investigating a complaint (here, by S alleging that the US did not ensure an adequate level of protection) and, where appropriate, from (ii) suspending the contested transfer of data. S had lodged a complaint with the Irish Data Protection Commissioner, on the basis that, in the light of the revelations made in 2013 by Edward Snowden concerning the activities of the United States intelligence services (in particular the NSA), the law and practice of the United States did not offer sufficient protection against surveillance by the public authorities of his Facebook data transferred from Ireland for processing in the USA. In the view of the CJEU, the existence of a Commission decision that a third country ensured an adequate level of protection for personal data transferred could not eliminate or even reduce the powers available to national supervisory authorities under the Charter of Fundamental Rights and the directive. Even where the Commission had adopted a decision, the national supervisory authorities, when dealing with a claim, had to be able to examine, with complete independence, whether the transfer of a person’s data to a third country complied with the requirements laid down by the directive. The CJEU’s view was that since the Safe Harbour scheme applied solely to those US undertakings which adhered to it, and US public authorities were not themselves subject to it, and since furthermore, US national security, public interest and law enforcement requirements prevailed over the Safe Harbour scheme, so that US undertakings were bound to disregard, without limitation, the protective rules laid down by that scheme where they conflicted with such requirements, then it followed that the US Safe Harbour scheme thus enabled interference, by US public authorities, with the fundamental rights of persons. The Commission decision did not refer either to the existence, in the US, of rules intended to limit any such interference or to the existence of effective legal protection against it. Legislation permitting public authorities to have access on a generalised basis to the content of electronic communications had to be regarded as compromising the essence of the fundamental right to respect for private life. Furthermore, legislation that did not provide for any possibility for individuals to pursue legal remedies in order to have access to their personal data, or to obtain the rectification or erasure of such data, compromised the essence of the fundamental right to effective judicial protection, the existence of such a possibility being inherent in the existence of the rule of law (Schrems v Data Protection Commissioner C-362/14, 6 Oct).

Crown

Royal Charter

It was not unlawful to adopt a definition of “sport” that excluded “mind sports” such as bridge when adopting a policy relating to the distribution of funding and grants. So held the High Court in a challenge by E to a decision by S, a body created by Royal Charter. As to the construction of S’s founding Charter, the High Court took a middle path between conceiving of it contractually (as argued for by E) and as akin to statute (as argued by S). Neither analogy was entirely apt bearing in mind the nature of a Royal Charter and the process by which it was produced. It was not a contract where attempting to discern the intentions of the parties in striking their bargain may play a significant role in interpreting the document. However, unlike a statute, which was preceded by the publication of a Bill, there was not an enacting history behind the emergence of the terms of the document that could be examined so as to assist in its construction. The approach to establishing the legal meaning of a Royal Charter as a legal instrument was to seek to understand that which the document would convey to a reasonable reader with knowledge of the factual background of how it came into being, alongside its purpose and the purpose of the body which it incorporated. Such a meaning would not be contingent upon dictionary definitions of its individual words. What needed to be examined was the use of the words within the overall factual context and what a reasonable person with knowledge of that context would understand the meaning of the document to be. There was a compelling case in support of the contention that the phrase “physical training and recreation” within s. 3(1)(a) of the Physical Training and Recreation Act 1937 (under which terms the Secretary of State might make grants to certain bodies) was to be interpreted as meaning physical training and physical recreation. Furthermore, the history and context of the 1996 Royal Charter was all of a piece and strongly supportive of the conclusion that the reference to S’s objects as the fostering and supporting of “sport and physical recreation” was confined to physical activity (R (oao English Bridge Union v Sport England [2015] EWHC 2875 (Admin)).

Devolution

Northern Ireland

In early September, First Minister Peter Robinson “stepped aside”, but did not resign, something that would have triggered an election under the Good Friday Agreement, and asked a party colleague to act as First Minister. All other DUP ministers resigned. This followed an unsuccessful attempt by the DUP to adjourn the Assembly, having failed to get enough support, an attempt itself provoked by a murder the previous month where the police strongly suspected continued involvement of the IRA. Mr Robinson’s statement:

“The failure of the SDLP and Sinn Féin to implement the Stormont House Agreement, together with the assessment of the chief constable of the involvement of the IRA in murder, the continued existence of IRA structures, and the arrests that followed has pushed devolution to the brink. In light of the decision by republicans, nationalists and the Ulster Unionist Party to continue with business as usual in the assembly, I am therefore standing aside as first minister and other DUP ministers will resign with immediate effect with the exception of my colleague Arlene Foster.”

Mr Robinson resumed his duties on 20 October.

The Northern Ireland Affairs Committee continued its inquiry into the role of the UK Government in seeking compensation for the victims of IRA attacks made possible by the provision of Semtex and other weapons by the former Gaddafi regime, and held the first public evidence session (9 September).

Scotland

In Scotland, the British Sign Language (Scotland) Act 2015 was passed on 17 September and received Royal Assent on 22 October. The Act promotes the use of British Sign Language by making provision for the preparation and publication of national plans in relation to British Sign Language and by requiring certain authorities to prepare and publish their own British Sign Language plans in connection with the exercise of their functions. The Mental Health (Scotland) Act 2015, which received Royal Assent on 4 August, amends the Mental Health (Care and Treatment) (Scotland) Act 2003 in relation to: compulsory treatment orders; both emergency and short-term detention in hospital; transfer of prisoners for treatment for mental disorder; detention in conditions of excessive security in both state and non-state hospitals; a nurse’s power to detain pending medical examination; and the appointment of a named person among other matters. The Act also establishes a duty on the Scottish Ministers to carry out a review of the arrangements for investigating the deaths of patients detained under e.g. the Mental Health (Care and Treatment) (Scotland) Act 2003, makes provision about mental health disposals and detention in criminal cases including amendments to the maximum periods of detention, and makes consequential amendments relating to the victim’s right to receive information and to make representations. The Air Weapons and Licensing (Scotland) Act 2015 received Royal Assent on 4 August.

On 1 September, the Scottish Government published its Programme for Government 2015-16, setting out the legislation for the coming year, as well as summarising the Scottish Government’s key achievements and main goals for the future – both legislative and non-legislative. The Programme is organised around four themes: a stronger and fairer Scotland; a strong, sustainable economy; protecting and reforming public services; and strengthening communities.

The Devolution (Further Powers) Committee of the Scottish Parliament (formerly, the Referendum (Scotland) Bill Committee) published its 8th Report (6th October) “Changing Relationships: Parliamentary Scrutiny of Intergovernmental Relations” making a range of recommendations on the guiding principles to improve parliamentary scrutiny of inter-governmental relations and considering whether the principles and processes that would underpin such scrutiny should be placed on a statutory footing. The European and External Relations Committee of the Scottish Parliament consulted on the potential implications for Scotland of the repeal of the Human Rights Act and its replacement with a British Bill of Rights, and conducted an inquiry into implications for Scotland of EU reform and of the EU referendum.

Wales

In Wales the National Assembly legislated to establish a new body to be known as Qualifications Wales (The Qualifications Wales Act 2015, 5 August).

The Government at Westminster published the draft Wales Bill on 20 October, and the Commons Welsh Affairs Select Committee took evidence on 26 Oct from the Secretary of State as part of its pre-legislative scrutiny. The Constitutional and Legislative Affairs Committee of the Welsh Assembly is also conducting an inquiry into the draft bill. The House of Lords Constitution Committee took evidence (21 Oct) from Sir Paul Silk and Sir Kenneth Calman, who chaired Commissions on devolution to Wales and Scotland, as part of its ongoing inquiry into “The Union and devolution”. The Wales Governance Centre and The Constitution Unit produced a combined report “Delivering a reserved powers model of devolution for Wales” in September.

Discrimination

The newly-established Commons Women and Equalities Committee commenced an inquiry into equality for transgender (trans) people, looking at a range of outstanding issues and considering how they can most effectively be addressed, including how well the current law is operating; employment and workplace issues; transphobia and hate crime; trans people in the criminal justice system; NHS services for trans people; and issues affecting trans youth.

The Scottish Government’s consultative review of the future of civil partnership in Scotland closed on 15 December, something it committed to during the Parliamentary passage of the Marriage and Civil Partnership (Scotland) Act 2014. The consultation sought views on three options: no change with the status remaining available to same-sex couples only, no new civil partnerships after a certain date in the future, or introducing opposite sex civil partnership.

Elections

Prisoners’ bans

Depriving an EU citizen (in this case, a citizen of the state in question) of the right to vote represented a limitation of the exercise of the right of EU citizens to vote in elections to the European Parliament, as guaranteed in the Charter of Fundamental Rights. However, limitations might be imposed on the exercise of fundamental rights, provided, inter alia, they were proportionate. Here that was the case. So held the CJEU in a claim brought by D, a French national, convicted of a serious crime in France leading to, on the basis of the criminal law in force at that time (1988), an automatic and permanent deprivation of his civic rights. The ban took account of the nature and gravity of the criminal offence committed and the duration of the penalty; it applied, at the time, only to persons convicted of a criminal offence punishable by at least five years’ imprisonment. Furthermore, French law allowed a person in D’s situation to apply for, and obtain, reinstatement of the civic rights lost. Thus in the Court’s view, it was possible to maintain a ban which, by operation of law, precluded persons convicted of a serious crime from voting in elections to the European Parliament. Since that time, in 1994, the law had been reformed; for those convicted after that date, bans ceased to be automatic and had to be imposed by a court for a period not exceeding 10 years (Thierry Delvigne v Commune de Lesparre-Médoc and Préfet de la Gironde Case C-650/13, 6 Oct).

Voting age

In Scotland, the voting age for elections to the Scottish Parliament and for local government elections was reduced to 16 by the Scottish Elections (Reduction of Voting Age) Act 2015 which received Royal Assent on 24 July.

European Union

EU competence and citizen’s initiatives

The General Court rejected an application by A to have annulled the Commission’s refusal to register the European citizens’ initiative (established in Article 11 TEU) ‘One million signatures for “a Europe of solidarity”’ which A had previously submitted to the Commission. Registration is the first stage in the process by which EU citizens, not fewer than one million from at least a quarter of all Member States, may take the initiative of inviting the Commission, within the framework of its powers, to propose to the EU legislature the adoption of a legal act for the purpose of implementing the Treaties. Here, A’s objective was to enshrine in EU legislation the principle of the “state of necessity…when the financial and the political existence of a State is in danger because of the serving of the abhorrent debt the refusal of its payment is necessary and justifiable”. The Commission had refused to register A’s proposal on the ground that it fell manifestly outside the framework of its powers to propose a legal act to the EU legislature. The General Court agreed. There was nothing in either Arts. 122 or 136 TFEU (economic and monetary policy) that could provide the legal basis for the Commission to propose that the Parliament adopt a legal act enshrining the principle of cancellation of onerous public debt. Article 122(1) TFEU, according to which the Council may, in a spirit of solidarity between Member States, adopt measures appropriate to the economic situation, could not be relied on to justify the enshrinement of the principle of a state of necessity in EU law. The provision did not imply any EU financial assistance towards Member States experiencing or threatened by severe financing problems. Article 122(2) TFEU, pursuant to which the Council may grant EU financial assistance to a Member State in difficulties caused by natural disasters or exceptional occurrences beyond its control, entailed only ad hoc EU financial assistance to a Member State and not a general and permanent debt cancellation mechanism. Last, there was nothing to suggest that the aim of the adoption of the principle of a state of necessity would be to strengthen the coordination and surveillance of budgetary discipline or would fall under economic policy guidelines, under Art. 136 TFEU (Anagnostakis v Commission Case T-450/12 30 Sept, judgment in French only).

European Communities Act 1972

It might be the case that where Parliament legislated and by doing so sought to extend domestically an EU regime (on the facts, the protection of workers on business transfers and on redundancy) into areas outside or specifically excluded from that regime (here, protecting employees of public administrative establishments without trade union representation), then that may well fall outside the general enabling power contained in s. 2(2) of the European Communities Act 1972. The power there conferred to make delegated legislation for the purpose of dealing with matters “related to” any obligation of the United Kingdom under EU law envisaged a close link between the content of any such legislation and the relevant obligation. So held the Supreme Court (by a majority, Lord Carnwath dissenting in part) in the course of rejecting an appeal by the US that the requirement to consult employees before dismissal for redundancy contained in TULRCA 1992 as amended did not apply to N, employed at one of its UK bases and dismissed a day before it closed. The US had argued, inter alia, that extending the original provisions of TULRCA (by regulations made in 1995 pursuant to s. 2(2)) so as to protect employees at public administrative establishments (a class to whom the relevant EU scheme did not extend protection) was ultra vires. However, on the facts, the Supreme Court concluded Parliament had by its original enactment of TULCRA in 1992 established a unified domestic regime drawing no distinction between different parts of TULCRA within or outside the EU’s internal market competence. In these unusual circumstances, Parliament could be taken to have created for the domestic purposes of s. 2(2) of the 1972 Act a relationship which the Secretary of State was entitled to take into account and continue by and in the 1995 Regulations. Furthermore, and again contrary to the US argument, there was no reason to read into TULRCA an exception for non-commercial iure imperii public administrative establishments either as a matter of domestic, EU or international law, especially where the US could have invoked state immunity but did not do so in time. Neither was the UK legislating extra-territorially when providing protection for employees in the UK subjected to redundancy decisions taken elsewhere (US v Nolan [2015] UKSC 63).

EU/member state relationships

The EU Commission Annual Report 2014 on Subsidiarity and Proportionality (COM(2015) 315) and its Annual Report 2014 on relations with national Parliaments (COM(2015) 316) both published on 2 July were considered and reported on by the EU Scrutiny Committee on 9 September with a recommendation that they be debated on the floor of the House. The Committee also considered and reported at that same meeting on the Draft Annual Report from the High Representative of the European Union for Foreign Affairs and Security Policy to the European Parliament: Main aspects and basic choices of the CFSP (11083/15, endorsed by the Council on 20 July).

Financial crisis

Private investors could not rely on the principle of the protection of legitimate expectations or on the principle of legal certainty in a field such as that of monetary policy, the objective of which involved constant adjustment to reflect changes in economic circumstances. So held the General Court dismissing an application by about 200 private investors in Greek securities (mainly Italian nationals) who were attempting to hold the European Central Bank liable for the estimated reduction in nominal value of their securities by some 53% following the various reconstruction agreements and “haircuts” reached between the Greek authorities and the ECB in February and March 2012. Private investors were deemed to have knowledge of the highly unstable economic circumstances which determined the fluctuation in the value of the Greek securities. They could therefore not exclude the risk of a restructuring of the Greek public debt, given the differences of view prevailing in that regard within the Eurosystem and in the other institutions involved (Commission, IMF and ECB). The press releases and the public statements of some ECB staff members – indicating the ECB opposed, on several occasions, a restructuring of the Greek public debt and a Greek selective default – were of a general nature and came from an institution which did not have the power to decide on a possible restructuring of the public debt of a Member State. In addition, those press releases and statements did not include specific and unconditional assurances from authorised and reliable sources, capable, for that reason, of giving rise to legitimate expectations. As to the claim that under the pretext of its monetary policy task, the arrangements reached by the ECB had been able to reserve for itself ‘preferential’ creditor status to the detriment of the private sector, thus constituting unequal treatment, the Court considered the principle could not apply. Private savers or creditors and the ECB (as well as NCBs of the Eurosystem) were not in a comparable situation: confronted with the Greek financial crisis and the exceptional circumstances attached to it, the ECB was exclusively guided by public interest objectives, such as, in particular, the objective of safeguarding price stability and the objective relating to the sound management of monetary policy. By contrast, the private investors or savers acted in pursuit of a purely private interest, namely obtaining a maximum return on their investments. The loss alleged by the individuals in this instance corresponded to the economic risks ordinarily inherent in the commercial activities carried out in the financial sector (transactions in marketable debt instruments issued by a State); this was particularly true where a State presented a downgraded rating, as Greece did from the end of 2009 (Alessandro Accorinti and Others v ECB T-79/13, 7 Oct, judgment in French only).

Welfare payments

Extending the principle in Dano (Case C-333/13, noted [2015] PL 314), a member state is entitled not to pay social security benefits to nationals of third party members states not only where they had entered but did not intend to seek work but where they had entered in order to seek work and indeed had remained there and worked previously for a short time. So held the CJEU in claims brought by four Swedish nationals arguing that they had been unlawfully denied certain non-contributory social assistance and welfare benefits by a German job centre. Denying Union citizens, whose right of residence in the territory of a host Member State arose solely out of the search for employment, entitlement to certain ‘special non-contributory cash benefits’ which also constituted ‘social assistance’ did not contravene the principle of equal treatment. The benefits at issue, even if they formed part of a scheme which also provided for benefits to facilitate the search for employment, were intended to cover subsistence costs for persons who could not cover those costs themselves and were not financed through contributions, but through tax revenue. In order to obtain such social assistance, an EU citizen could claim equal treatment with nationals of the host Member State only if his residence in the territory of the host Member State complied with the conditions of the ‘Free Movement of Citizens’ Directive. There were two possibilities for the purposes of granting a right of residence to job-seekers such as those in the present case: where an EU citizen who had enjoyed a right of residence as a worker was in involuntary unemployment after having worked for less than a year and had registered as a job-seeker with the relevant employment office, he retained the status of worker and the right of residence for no less than six months. During that period, he could rely on the principle of equal treatment and was entitled to social assistance. The other was where an EU citizen had not yet worked in the host Member State or where the period of six months had elapsed. While a job-seeker could not be expelled from that Member State for as long as he could provide evidence that he was continuing to seek employment and that he had a genuine chance of being engaged, in such a case the host Member State might refuse to grant any social assistance. While a member state must take account of the individual situation of the person concerned before it adopted an expulsion measure or found that the residence of that person was placing an unreasonable burden on its social assistance system, no such individual assessment was necessary in circumstances such as those at issue in the main proceedings, since the gradual system as regards the retention of the status of ‘worker’ provided for in the ‘Free Movement of Citizens’ Directive (a system which sought to safeguard the right of residence and access to social assistance) itself took into consideration various factors characterising the individual situation of the applicant for social assistance (Jobcenter Berlin Neukölln v Alimanovic Case C-67/14, 15 September).

Working Time

The time spent each day by those workers who did not have a fixed or habitual place of work travelling between their homes and the premises of the first and last customers designated by their employer constituted working time within the meaning of the Working Time Directive (Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time OJ 2003 L 299, p. 9). So held the CJEU in claims brought by various technicians employed by T to install and maintain security equipment in homes and on industrial and commercial premises. Workers in such a situation were carrying out their activity or duties over the whole duration of those journeys and were at their employer’s disposal for the whole of the journey, and were to be considered working for the whole of the journey, not resting (Federación de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL C-266/14 10 Sept).

Freedom of speech

Journalists

There was no violation of a photojournalist’s right of free speech under Art. 10 where he was arrested and detained for over 17 hours (and eventually prosecuted), having failed to obey a police order to disperse. So held the Grand Chamber (by a majority of 13 to 4, Judges Spano, Spielmann, Lemmens and Dedov dissenting) on an appeal by P who worked for a weekly magazine and had been sent to cover a demonstration protesting against the Asia Europe meeting (ASEM) in Helsinki in 2006. The demonstration was an exceptionally large one in the Finnish context and all media followed it closely. P’s brief was to conduct an extensive report on the demonstration for the paper version of the magazine and to publish it online immediately, once the demonstration had ended. Original security service intelligence was that the event would be hostile, based in part on similar recent events, and it soon became clear that violence and disorder had escalated. The police gave general direction to disperse. While the Grand Chamber stressed the crucial watch-dog role of the media in providing information on the authorities’ handling of public demonstrations and the containment of disorder where their presence guarantees that the authorities could be held to account for their conduct, such that any attempts to remove journalists from the scene of demonstrations had to be subject to strict scrutiny, on the facts the action taken was proportionate. There was no reason to doubt that the police orders were based on a reasonable assessment of the facts and the various preventive measures against the likelihood of the events turning violent were justified. Neither could it be said that P was prevented from doing his job of reporting on the protest; he was able to take photographs during the entire demonstration until the very moment he was apprehended. Furthermore, had P wished to be acknowledged as a journalist by the police, he should have made sufficiently clear efforts to identify himself as such either by wearing distinguishable clothing or keeping his press badge visible at all times, or by any other appropriate means. He failed to do so (Pentikainen v Finland App. 11882/10 ECtHR 20 October GC)

Privacy

It would be a violation of the right of privacy contained in Art. 8 of the ECHR to broadcast, without blurring, the image of an identifiable individual, obtained through using a hidden camera where there was no general-interest justification for the journalists’ decision to broadcast his image without blurring it i.e. nothing to suggest that broadcasting the image would be newsworthy or useful (given the applicant was not famous). So held the European Court of Human Rights in a claim brought by B, who had been filmed without his knowledge in a restaurant and where that footage had been used as part of a TV documentary in which B was shown promoting his evangelical Christian beliefs and described as a “foreign pedlar of religion” engaged in covert activities in Turkey. The Court found in particular that the broadcasting of B’s image without blurring it could not be regarded as a contribution to any debate of general interest for society, regardless of the degree of public interest in the question of religious proselytising. The Court was of the view that a technique as intrusive and as damaging to private life must in principle be used restrictively. The Court was not unaware that, in certain cases, the use of hidden cameras might prove necessary for journalists when information was difficult to obtain by any other means. However, that tool had to be used in compliance with ethical principles and with restraint. B had not placed himself in the public arena except for the fact that he had published an advertisement, which could not have led him to suspect that he might be the subject of public criticism. He thought that he was merely meeting a group of individuals interested in Christianity (Bremner v Turkey App 37428/06, ECHR 13 October, judgment in French only).

Whistleblowing

The UN Special Rapporteur on the Right to Freedom of Opinion and Expression, David Kaye, presented his report on whistleblowing and sources to the 70th session of the UN General Assembly on 8 September (A/70/361).

Government and Civil Service

Third sector

The Commons Public Accounts Committee (PAC) is investigating and took evidence from senior civil servants about the charity Kids Company, which closed in August 2015 having received £46m in government funding over 13 years. The Committee is examining the management of that funding, how far the charity was held to account for the spending, who authorised the various grants, and the lessons government can learn in its use of taxpayers’ money to support the third sector.

Ministers

The Cabinet Office published a revised Ministerial Code (15 October), prompting some controversy for the removal of the duty to comply with international law. The 2010 version (para. 1.2) stated:

“The Ministerial Code should be read alongside the Coalition agreement and the background of the overarching duty on Ministers to comply with the law including international law and treaty obligations and to uphold the administration of justice and to protect the integrity of public life”

whereas it now reads:

“The Ministerial Code should be read against the background of the overarching duty on Ministers to comply with the law and to protect the integrity of public life.”

Housing

Homelessness

The procedure for challenging housing allocation decisions by appeal to Homelessness Review Officers, themselves amenable to judicial review , ensured that the system as a whole complied with Art. 6. So held the ECtHR in holding against A who had argued that she had been deprived of her right to appeal to an independent and impartial tribunal in respect of the relevant factual finding. As to whether there was an extant dispute about A’s civil rights, the Strasbourg Court, contrary to the UK Government’s assertion, saw no convincing reason to distinguish between A’s right to be provided with accommodation (as someone in priority need under Part VII of the Housing Act 1996) and the right to housing benefit (accepted as falling within Art. 6(1)) or other social security or welfare benefits such that Art. 6(1) did apply, conferring on her the right to a fair hearing before an independent and impartial tribunal. While Homelessness Review Officers could not be considered independent, as an officer of the Council which was alleged to owe the duty to the applicant albeit without any financial interest in the outcome, the legislative scheme as a whole was: there were a number of significant procedural safeguards attending that stage of the process, alongside a level of review by the County Court of both the facts and the procedure by which the factual findings of the Officer were arrived at on standard JR grounds (Fazia Ali v UK App 40738/10 ECtHR 20 October, appeal from Tomlinson and Others v Birmingham City Council [2010] UKSC 8).

Right to buy

The Communities and Local Government Committee held its second evidence session (4 November) of its the inquiry into “The Housing Association sector and Right to Buy”, hearing from housing associations about their views on the extension of the right to buy to all tenants of housing associations (from the previous position only in relation to council-owned properties) contained in the Queen’s Speech (following a commitment in the Conservative Party’s Manifesto) and what they expected the impacts to be on their organisations and on their tenants. The Housing and Planning Bill (published on 13 October) makes provision for the voluntary agreement reached between government and the National Housing Federation to deliver the extended Right to Buy on a voluntary, non-legislative basis. A 75-page research report commissioned by the Committee on the issue was published on 22 October.

Human Rights

Drone strikes

The JCHR is currently investigating the UK Government’s policy on the use of drones for targeted killing inquiry. Its terms of reference are based on the fact that the Government has not published any formulated policy on the use of drones for targeted killing with the resulting lack of clarity about the policy itself; about whether and how the legal frameworks of international humanitarian law, international human rights law and ordinary criminal law apply; about the relevant legal tests and principles that apply to the use of lethal force in such circumstances; and about how the relevant decision-makers test the sufficiency of evidence, who checks that the tests are satisfied, and what the framework of accountability is. On 24 September, the BBC reported that two Green Party politicians were planning to mount a judicial review of the drone strike policy.

EU

At its meeting on 16 September, the EU Scrutiny Committee considered and reported on the EU Action Plan on Human Rights and Democracy 2015-2019 (and recommended for debate on the floor of the House), adopted by the Council on 20 July.

HRA repeal

The House of Lords EU Justice Select Committee took evidence in October from academics and barristers on the impact that repeal of the HRA will or might have on EU Law. Despite the HRA not featuring once in the speech by the Justice Secretary to the Conservative Party conference, late October saw reports of plans by Michael Gove to fast-track a British Bill of Rights with a 12-week public consultation in November or December.

Immigration, extradition, deportation and asylum

Procedure

It had been unlawful for a Home Office caseworker to fail to follow the Process Instruction when dealing with claims for visa extensions and thus to fail to deal sufficiently flexibly with the applicant. So held the Supreme Court in upholding M’s claim, quashing the refusal of his application for a visa extension in circumstances where he had provided a series of bank statements indicating he had the required funds but for a 22-day period only, not 28-days as required under immigration rules. The Process Instruction provided that caseworkers should show some limited flexibility in relation to applications from which requisite information or evidence had been omitted. In particular, the Process Instruction set out several steps which were to be followed when there was missing evidence such as contacting the applicant to seek it. Here, the Court determined, this was what the caseworker should have done. Since there were no good reasons for not following the Process Instruction here, the failure to do so rendered the subsequent refusal unlawful. While the exercise of statutory powers could be restricted by government policy, individuals had a basic public law right to have their cases considered under whatever policy the executive saw fit to adopt, provided that the policy was a lawful exercise of the discretion conferred by statute (that is, it provided sufficient flexibility as to avoid being a fetter on discretion and was not ultra vires). That was the case here. The Court made clear that while linked to the doctrine of legitimate expectation, an applicant’s right to the determination of his application in accordance with policy is grounded in fairness and flows from a principle of good administration, by which public bodies ought to deal straightforwardly and consistently with the public unless there is good reason not to. It thus was capable of protecting those who were unaware of a policy until after the determination adverse to them was made or where reliance was placed on guidance issued by one public body to another (Mandalia v SoS for the Home Dept. [2015] UKSC 59).

Collateral use of asylum evidence

It did not found a ground to appeal a conviction where the prosecuting authorities had relied on material disclosed by an accused in separate (unsuccessful) asylum proceedings (in relation to a third party state, here Sweden) made some 27 years earlier. So held the Supreme Court upholding M’s conviction for various terrorism related offences arising from M’s membership of the IRA. M had argued at trial (and appeal) that the asylum material should not have been admitted in evidence, either because it should have been excluded under s. 76 of PACE as having such an adverse effect on the fairness of the trial that it should not be admitted, or because the admission of the evidence would offend the rule against self-incrimination. Lord Kerr giving judgment of the Court held that while the need for candour in the completion of an asylum application was self-evident, that should not be regarded as giving rise to an inevitable duty of confidence over material contained in it. Neither was there an explicit requirement in Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures for granting and withdrawing refugee status (the Procedures Directive) that material disclosed by an applicant for asylum should be preserved in confidence for all time and from all agencies, just that (per Article 22 of the Procedures Directive) it should not be disclosed to alleged persecutors or in the course of examining the individual case. The material provided by Sweden was lawfully supplied and the authorities in the UK had a legal obligation to make appropriate use of it if it revealed criminal activity. Whether the material would have been treated differently if it had originated in the UK did not affect the manner in which the trial judge was required to approach his decision under s. 76. The judge was plainly right to refuse the application. Further, the absence of compulsion in the case of an application for asylum rendered comparisons with situations involving compulsion (such as the requirement to answer questions under s. 98 of the Children Act 1989) inapt. The rule against self-incrimination did not require a prohibition on the use of evidence obtained through a non-compulsive procedure such as an application for asylum (R v McGeough [2015] UKSC 62).

Judiciary

Appointments

Peter Fraser QC, Phillipa Whipple QC, Bobbie Cheema-Grubb QC, HHJ Juliet May QC and Neil Garnham QC were all appointed High Court judges (Queen’s Bench Division) in the three-month period. Henry Carr QC was appointed a High Court judge in Chancery.

Mr Justice Cranston has succeeded Mr Justice Ouseley as Judge in Charge of the Administrative Court, Mr Justice Coulson has assumed responsibility as the Administrative Court Liaison Judge for the Western and Midland Circuits and Mr Justice Lewis has assumes responsibility as the Administrative Court Liaison Judge for Wales. Mrs Justice Patterson has succeeded Lord Justice Lindblom as Planning Liaison Judge.

Diversity

Mrs Cheema-Grubb (see above) is the first female Asian appointment to the High Court bench. In Northern Ireland, Denise McBride QC and Siobhan Keegan QC in late October became the first two women appointed as High Court judges there.

The Lord Chief Justice, Lord Thomas, spoke at the Temple Women’s Forum in Leeds on 19 October reminding his audience of the importance to us all of diversity, particularly to the judiciary and asserting that as Head of the Judiciary of England and Wales, he had particular responsibility to show leadership on the issue, believing strongly that it was imperative to improve the diversity of the judiciary:

“Diversity is important, not just to public confidence in justice. It is inherent in justice itself because it represents both fairness and equality of opportunity. Furthermore, unless we embrace the whole of our society, we do not recruit all the potential judges who ought to be appointed and who will bring to the work of a judge their skills and their expertise. We simply did not attract enough women and we did not attract enough people from Black, Asian and minority ethnic communities….[M]erit and improved diversity are entirely compatible. We need to do more to ensure that there is a level playing field and every applicant has the same fair opportunity when applying for judicial appointment to show that he or she has the potential to be an excellent judge.”

This came just three weeks after Lord Sumption JSC was interviewed by the London Evening Standard (21 September) and reported as saying:

“The Bar and the solicitors’ profession are incredibly demanding in the hours of work and the working conditions are frankly appalling. There are more women than men who are not prepared to put up with that. As a lifestyle choice, it’s very hard to quarrel with it, but you have to face the consequence which is that the top of the legal profession has fewer women in it than the profession overall does.”

The next day a spokesman for the Supreme Court said “Some of Lord Sumption’s comments appear to have been misunderstood. The full quotes make clear that he believes that increasing diversity at all levels of the profession is important, and that the range of hidden barriers to improving diversity – particularly of the judiciary – present a very complex problem. Nowhere did he try and reduce this to a simple question of ‘lifestyle choice’. The concern he expressed was against introducing any form of positive discrimination to the judicial appointments system without careful analysis of the full range of potential consequences.”

Judicial Power

The Policy Exchange think tank “Judicial Power Project” has commenced, with a speech by Professor John Finnis (21 October) entitled “Judicial Power: Past, Present and Future”, to which so far Professors Gregoire Webber, Mark Elliott and Adrienne Stone have responded.

Speeches

Local Government

The Commons Communities and Local Government (CLG) Committee continued its inquiry into the Government’s Cities and Local Government Devolution Bill, and into the lessons which can be learned from City Deals agreed between combined authorities and central government, such as the Greater Manchester Agreement, as the means for delivering local “devolution”, as well as considering how the Devolution Bill will build on local accountability. The Bill was introduced into the House of Lords on 28 May and had its first day (of two) before a Committee of the Whole House on 21 October.

Ombudsmen

An ESRC-funded comparative report “Trusting the Middle-Man: Impact and Legitimacy of Ombudsmen in Europe” on users’ expectations, levels of engagement and trust in ombudsmen systems in the UK, France and Germany was published.

The Parliamentary and Health Service Ombudsman published its annual report “Complaints about acute trusts 2014-15” showing that, similar to last year, the top three reasons for hospital complaints were poor communication, errors in diagnosis and poor treatment. Non-medical aspects of patient care were cited as a factor in almost half of all complaints investigated while poor communication, including quality and accuracy of information, a factor in one third. There was a significant annual increase in the number of enquiries received and investigated: 21,371 enquiries received about the NHS, compared to 18,870 in 2013-14. It completed 1,652 investigations about acute trusts in 2014-15, compared to 852 in 2013-14, a rise largely attributed to a change in the way the Ombudsman handles complaints to undertake more investigations, resulting in it now completing ten times as many investigations in 2014-15 than in 2012-13. In 2014-15 it upheld 36% of the cases it investigated about the NHS and 44% about acute trusts.

In Wales, the Finance Committee of the Welsh Assembly report “Consideration of Powers: the Public Services Ombudsman for Wales” was published (May 2015), an inquiry launched after the current Ombudsman highlighted five main areas for changes to the 2005 Act to strengthen the role including own-initiative powers and complaints handling across public services.

Parliament

Committees

  • The House of Lords Communications Committee continued its investigation into the BBC Charter Renewal.
  • The Home Affairs Committee published its report (HC 361, 23 October) “Psychoactive substances” with the Bill of that name now having reached its final, 3rd Reading Stage in the House of Commons.
  • The Public Accounts Committee 4th report “Fraud and Error Stocktake” in relation to welfare benefits and tax credits was published (28 October HC 394).
  • The Work and Pensions Select Committee 2nd Report “Welfare-to-work” was published (HC 363, 21 October).
  • The House of Lords EU Select Committee 4th Report “The EU Action Plan against migrant smuggling” was published (HL 46, 3 November).

English Votes for English Laws (EVEL)

The House of Commons voted for a change to Standing Orders (HC Deb 22 October 2015 vol. 600 col. 1159) that, for Bills certified by the Speaker as both relating exclusively to England (or to England and Wales) and otherwise as within devolved legislative competence, the Bill should immediately before 3rd Reading stage be referred to a separate additional Legislative Grand Committee comprising solely of English (or English and Welsh MPs) able to give or withhold consent to the Bill proceeding any further. The debate followed a Written Statement by the Leader of the House on 20 October (HC Deb 20 October 2015 vol. 600 col. 40WS) and a report by the Commons Procedure Committee (HC 410, 19 October) “English votes for English laws Standing Orders: interim report” and Government response of 21 October. The Scottish Affairs Committee also held (8 September) an evidence session on EVEL.

Legislation

There were no UK-wide Acts passed in the period. There were two significant Parliamentary votes on legislation. On 7 September, the Government lost a vote (285:312) on the floor of the House, seeking to relax the rules on 28-day purdah in relation to the EU Referendum (and contained in s. 125 of the Political Parties, Elections and Referendums Act 2000). 37 Conservative MPs voted against the Government amendment contained in the European Referendum Bill making its way through Parliament (HC Deb 7 September 2015, vol. 599, col. 78). See also evidence (16 and 21 July) to the Commons Public Accounts and Constitutional Affairs Committee Inquiry “Referendum Bill, part one: Purdah and Impartiality” (HC 319), and The House of Lords Constitution Committee 5th Report “European Union Referendum Bill” (HL 40, 19 October).

The House of Lords voted (HL Deb 7 November 2015, vol. 765 col. 976) by 307:277 on an Opposition motion to decline to consider the Government’s draft regulations setting out planned changes to Working Tax Credit “until the Government lay a report before the House, detailing their response to the analysis of the draft regulations by the Institute for Fiscal Studies, and considering possible mitigating action”. Given that the draft regulations were said by the Government to be budgetary, designed as part of a package of measures to reduce the deficit and put to the electorate in the manifesto as a pledge to reduce welfare benefits by £12bn, on which the Commons had voted three times – and thus to engage both the Salisbury convention and the Commons’ historic financial privilege – the defeat prompted the Prime Minister to announce an urgent review of relations between the two Houses, headed by Lord Strathclyde (HCWS 292, 4 November). The parliamentary debate contains much discussion of the wider constitutional issues.

Last, the vote on 2nd Reading of the Assisted Dying (No. 2) Bill, a private member’s bill introduced under the ballot procedure by Labour MP Rob Marris was lost 118:330 (HC Deb 11 September 2015 vol. 599 col. 656).

MPs

The so-called Wilson Doctrine in which the then Prime Minister confirmed, in a statement to the House of Commons (HC Deb 17 November 1966 vol. 736, col. 635), that “there is no tapping of the telephones of hon. Members, nor has there been since this Government came into office”, and confirmed that he had instructed that there was to be no tapping of MPs’ phones – subsequently affirmed or repeated in 1980 (Margaret Thatcher), 1997 (Tony Blair) and 2007 (Gordon Brown) – was of no legal effect, though in practice the Intelligence and Security Agencies had to comply with the Draft Interception of Communications Code and with their own Guidance. Neither did it operate so as to create a substantive legitimate expectation. So held the Investigatory Powers Tribunal in claims brought by two MPs and a Peeress on a preliminary issue relating to the status, meaning and effect of the Doctrine in the context of interception warrants. While the policy set out in the Doctrine did not apply to untargeted warrants under s. 8(4) of the Regulation of Investigatory Powers Act (RIPA) 2000 at the stage of issue, it did apply to targeted, but not incidental, interception of parliamentarians’ communications, both in respect of targeted s. 8(1) warrants at date of issue and in respect of s. 8(4) warrants at the date of accessing/selecting such communications. The Tribunal was satisfied that the Doctrine was not intended to extend, and could not in practice extend, to prohibit the interception, as part of a very large quantity of communications, of communications by parliamentarians which were not targeted by the warrant applied for. Unless such were the case it would render impossible the very procedure, namely the grant of s. 8(4) warrants, which Parliament, those very parliamentarians, itself approved. The Tribunal did not accept that the Doctrine was ever absolute. The policy or general policy of which the then Prime Minister spoke in 1966 was one of not tapping the telephones of MPs. It seemed unlikely that such policy, particularly once RIPA was passed by Parliament, with its statutory justification for s. 8 warrants by reference to the necessity for the interests of national security or the purpose of preventing or detecting serious crime etc, was intended to rule out any tapping of such telephones or other similar direct surveillance and certainly not any incidental interception. It was difficult to see how there could be an absolute policy which would rule out interception of any communications with parliamentarians, as opposed to a policy relating to those involving confidential communications with constituents etc. Whatever the Doctrine once was, it had changed or been changed, something indeed predicted in the 1966 statement itself: the most recent iteration was by the Home Secretary in 2014 (HC Deb 15 July 2014 vol. 584, col. 713) in reply to a question during debate:

“The Wilson Doctrine … does not absolutely exclude the use of these powers against parliamentarians, but it sets certain requirements for those powers to be used in relation to a parliamentarian. It is not the case that parliamentarians are excluded and nobody else in the country is, but there is a certain set of rules and protocols that have to be met if there is a requirement to use any of these powers against a parliamentarian.”

Furthermore, despite the seeming indication in 1966 that it was for the Prime Minister to announce changes in the policy, the Tribunal considered this now fell to the Home Secretary responsible for the issue of warrants, and so in the best position to recognise and explain how the Doctrine is operated, though “to be followed no doubt by some statement from this or a future Prime Minister at some stage in the future to the same effect.” Last, there was good ECHR authority that in general the regimes for the interception of communications under both s. 8(1) and s. 8(4) were in accordance with the law under Art. 8(2) and prescribed by law under Art. 10(2). There was no authority that the ECHR required additional protection for communications with parliamentarians, and the Tribunal was not convinced, despite the analogies drawn with LPP and journalists, that it should now establish such authority and by doing so, make new law. There were very good reasons for parliamentarians not being treated differently from other citizens (Caroline Lucas MP and others v Security Service and others [2015] UKIPTrib 14_79-CH). The judgment prompted an Emergency Debate in the House to consider the Doctrine (HC Deb 19 October 2015 vol. 600 col. 694).

Police

Data protection and investigations

The Data Protection Act 1998 conferred no right to see the report produced for the Thai prosecuting authorities by British police officers from the Metropolitan Police despatched to Thailand at the request of the Prime Minister. So held the High Court in a clam by two Burmese men facing the death penalty there for the murder of two British tourists. Because it was UK policy not to assist foreign police authorities in death penalty cases, the engagement was limited to observing and recording the investigation into the murders by the Royal Thai Police against a background of media coverage and speculation including allegations of confessions obtained through torture. The Thai police cooperated fully but it had been agreed between the Thai authorities and the Metropolitan Police that the final report would be kept confidential, effectively a precondition for the Thai police agreeing to cooperate. There was nothing exculpatory in the Met Police report. Furthermore, applying an intense proportionality test, the public interest arguments of the police, that disclosure could have a very serious adverse effect upon the ability of the police to enter into international cooperative ventures in the future, outweighed those of the claimants (Zaw Lin & Wai Phyo v Commissioner of Police for the Metropolis [2015] EWHC 2484 (QB)).

Stop and search

In Scotland, the Independent Advisory Group on Stop and Search (established by the Scottish Ministers in March 2015) reported (3 September, SG/2015/128), with the majority on the group recommending that non-statutory (i.e. consensual) stop and search by the police should end completely and without qualification. The Justice Secretary accepted the report’s findings and promised a new statutory code of practice to underpin the use of stop and search in Scotland, and committed to end the current system of consensual stop and search once that code came into effect. The Criminal Justice (Scotland) Bill was amended during passage for that purpose.

Prisons

Release

In Scotland, the Prisoners (Control of Release) (Scotland) Act 2015 received Royal Assent on 4 August. It provides for automatic early release on licence for long term prisoners at the point when they have only six months left to serve and for prisoners serving all but the very shortest sentences (up to 15 days) the power to bring forward a release date by up to two days if, in the Scottish Ministers’ opinion, it would be better for the prisoner’s re-integration into the community to do so.

An extended sentence under s. 210A of the Criminal Procedure (Scotland) Act 1995 was a determinate sentence not an indeterminate one (and therefore different to a sentence of imprisonment for public protection or IPP). That being so, Art. 5 did not impose a duty on the authorities to facilitate and hasten progress towards release by providing appropriate opportunity for rehabilitation through, for example, offering courses to assist in that, and so reduce the risk to the public. So held the Court of Session, Inner House in a claim brought by a prisoner arguing there had been a breach (Brown v Parole Board [2015] CSIH 59).

Segregation

It was unlawful as a matter of common law, under rule 94 of the Prisons and Young Offenders Institution (Scotland) Rules 1994 and the subsequent Prisons and Young Offenders Institution (Scotland) Rules 2006, and under the HRA for a prisoner to be segregated for longer than 72 hours without ministerial authority granted before the expiry of the 72-hour period. A late authority by the Scottish Ministers, granted after the expiry of the 72-hour period, was without effect. So held the Supreme Court in a challenge by S to the decision to keep him segregated for his own safety for a period of 56 months. Such a holding was consistent with the purpose of the legislation: to provide a safeguard for the protection of prisoners, by ensuring that the need for segregation was reviewed within a short time by officials external to the prison and that segregation was maintained only for so long as was necessary. On the three occasions when authority for S’s segregation was granted late, that authority was invalid, and incapable of renewal. Consequently, the appellant’s segregation for periods totaling about 14 months lacked authorisation under the Prison Rules. S’s segregation did not attain the minimum level of severity required for a violation of Art. 3 even though the duration of his segregation was undesirable, and the conditions could have been improved. There wasn’t any severe or permanent injury to health and the isolation he experienced was partial and relative. It did though constitute a violation of Art. 8. Segregation pursued a legitimate aim, namely the protection of S’s safety but for those periods in which he was segregated without valid authorisation under the Prison Rules, his segregation was not in accordance with the law. The Scottish Ministers had also failed to establish that S’s segregation for the entire period was proportionate. While it was true that other potential accommodation options, providing reduced association and greater supervision for prisoners who remained at risk of harm, were not available in Scotland during the period in question, no consideration had been given to the possibility of transferring the appellant to a prison elsewhere in the UK. No meaningful plan was put in place until the appellant had been in segregation for 55 months (Shahid v Scottish Ministers [2015] UKSC 58).

Surveillance

Legally privileged material

The system in Part II of RIPA 2000 (and its associated Code) by which intrusive surveillance of conversations between an accused and his lawyer taking place in a police station (considered analogous to the interception of a telephone call between a lawyer and client) did not attract sufficient safeguards from arbitrary misuse as to be “in accordance with law”. There had thus been a violation of Art. 8. So held the ECtHR in an application by RE, arrested and questioned in Northern Ireland in 2009 in connection with the murder of a police constable. The Court re-iterated that Art. 8 afforded “strengthened protection” to exchanges between lawyers and their clients, as lawyers would be unable to defend their clients if they were unable to guarantee that their exchanges would remain confidential. The surveillance of a legal consultation constituted an extremely high degree of intrusion into a person’s right to respect for his or her private life. As such, it required the same safeguards to be in place to protect individuals from arbitrary interference with their Art. 8 rights as in cases concerning the interception of communications. The Court accepted that the nature of the offences which might give rise to intrusive surveillance was sufficiently clear; that no further clarification of the categories of persons liable to be subject to secret surveillance could reasonably be required; and, last, that those provisions that dealt with duration, renewal and cancellation were sufficiently clear. However in contrast to Part I of RIPA and the Interception of Communications Code of Practice, (which the Court approved in Kennedy v UK (2011) 52 EHRR 4), the provisions in Part II of RIPA and the Revised Code concerning (i) the examination, use and storage of the material obtained, (ii) the precautions to be taken when communicating the material to other parties, and (iii) the circumstances in which recordings may or must be erased or the material destroyed did not provide sufficient safeguards for the protection of the material obtained by covert surveillance. There was however no violation of Art. 8 in respect of that element of RE’s claim relating to directed surveillance between detainees who were “vulnerable persons” (as was the case here) and an appropriate adult. A complaint that the surveillance deprived him of his right to a fair trial under Art. 6 was also declared inadmissible as manifestly ill-founded since RE had never faced trial but had been released without charge (RE v UK App 62498/11 27 October).

Terrorism

Police Powers

Claims by terrorist suspects that the failure by the police to provide sufficient information about the allegations against them as to allow them to mount an effective challenge to the lawfulness of their detention amounted to violations of Arts. 5(2) and 5(4) of the ECHR were declared inadmissible for failure to exhaust local remedies. So held the European Court in the case of three Iranian students arrested in the UK under s. 41 of the Terrorism Act 2000 on suspicion of being involved in the commission, preparation and instigation of acts of terrorism and detained for 13 days before being released without charge and subjected to deportation proceedings. The three had sought judicial review but had not renewed their application for permission to the Court of Appeal, and had failed to pursue private law proceedings in relation to their arrest and detention (Sher v UK App 5201/11 ECtHR 20 October).

Prevent

The Home Affairs Committee continued its inquiry “Countering extremism” by taking evidence from representatives from the Muslim Council of Britain and the East London Mosque Trust. The Counter-Terrorism and Security Act 2015 (Risk of Being Drawn into Terrorism) (Guidance) Regulations 2015 (SI 1697/2015) were passed on 17 September, bringing into effect various PREVENT guidance including that issued by the Department for Business, Innovation and Skills in relation to universities, now under a general duty “to have due regard to the need to prevent people from being drawn into terrorism” contained in s. 26 of the Counter-Terrorism and Security Act (CTSA) 2015.

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.

(Suggested citation: D. Mead, ‘Public Law Current Survey (Aug – Oct 2015)’ UK Const. L. Blog (8th Jan 2016) (available at https://ukconstitutionallaw.org/))

One comment on “David Mead: Public Law Current Survey (Aug – Oct 2015)

  1. chilly
    January 11, 2016

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This entry was posted on January 8, 2016 by in Current Survey.
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