This month in the constitution

In UK constitutional law this month we’ve seen two important decisions from the Supreme Court and a series of highly critical reports from parliamentary committees on what is probably the most significant Government Bill (from a constitutional point of view) in this session of Parliament. This post summarises each.

1. On the relation of common law to Convention rights

Osborn v Parole Board [2013] UKSC 61 concerns an elementary aspect of the rules of natural justice, otherwise known as the duty to act fairly: namely, when does fairness require that a public body hold an oral hearing before deciding a matter? (On the duty to act fairly, see T&T pp 699-710.) Oftentimes fairness will not demand an oral hearing, but sometimes it will. In Osborn the Supreme Court ruled that “it is impossible to define exhaustively the circumstances in which an oral hearing will be necessary” but that, in the case of the Parole Board at least, the two most important factors are “the facts of the case” and “the importance of what is at stake”. Where there is a dispute as to the facts, or where assertions as to the facts require explanation in order to test their credibility, an oral hearing will be necessary. The purpose of an oral hearing, we further learn, is not merely to assist the Parole Board in its decision-making, but is also to reflect parties’ legitimate interests in being able to participate in decisions having important implications for them, where the party has “something useful to contribute”. Naturally, a body such as the Parole Board should “guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense”.

All of this is rather axiomatic and, as ever with the “rules” of natural justice, the principles are easier to state than to apply. What is of interest, however, in the judgment of the Court is the way the matter is framed. The claimant’s argument in the litigation — that the Parole Board had acted unfairly in his case — was focused on his Convention rights (Article 5(4) of the Convention: see T&T p 753). Lord Reed, giving the judgment of the Court, stated baldly but correctly that this approach “does not properly reflect” the relationship between domestic law and Convention rights (para 54). It was an “error”, said Lord Reed, to “suppose that because an issue falls within the ambit of a Convention guarantee, it follows that the legal analysis of the problem should begin and end with Strasbourg case law” (para 63). One should, on the contrary, begin with the principles of domestic law. There is a double message here. Advocates preparing cases for argument should take care to base their submissions on domestic and common law claims where they can, resorting to arguments based on Convention rights only where necessary. But, at the same time, politicians and other commentators who consider that all their irritations with human rights or public law are the fault of the Human Rights Act and the ECHR should think again. The common law, Lord Reed reminds us, is more than capable of being a robust and potent source of protection for our fundamental rights (see paras 58-62 and the case law cited therein).

In considering the domestic legal principles of fair hearings, Lord Reed took the opportunity to clarify three matters. First, the role of the court in a natural justice case is not to review on Wednesbury grounds whether the procedure adopted by the decision-maker was reasonable: it is to determine for itself whether a fair procedure was followed (and not merely to review the reasonableness of the decision-maker’s judgment of what fairness required) (para 65). Secondly, the purpose of procedural fairness is not merely to help achieve better decisions (an instrumental purpose), but is also intrinsically valuable in terms of (a) “avoiding a sense of injustice” that a party may otherwise feel (para 68) and (b) promoting the rule of law (para 71). Thirdly, Lord Reed made the point that the costs of not holding oral hearings may be greater than the costs of holding them (para 72).

2. On prisoners’ right to vote

R (Chester) v Secretary of State for Justice and McGeoch v Lord President [2013] UKSC 63 is one of those curious cases which both parties lost. Chester and McGeoch are convicted murderers, serving long terms of imprisonment, who claimed that their disenfranchisement whilst incarcerated breaches various rights of theirs. They sought remedies in the face of the Government’s “continuing delay” in implementing the ECtHR’s infamous decision in Hirst in 2005 that the UK’s rules as to prisoner disenfranchisement violate the right to vote, a right which the Strasbourg Court has read into Article 3 of the First Protocol to the Convention (“A3P1”) and which that Court has extended to prisoners. (On Hirst and related matters see T&T pp 80 and 283.) The claimants also sought to argue that European Union law was engaged (and breached) in that they had rights under the EU Treaties to vote in local, devolved and European elections. A panel of seven Supreme Court justices was unanimous in ruling that the claimants were entitled to no fresh relief under the HRA/ECHR, that there was no breach of EU law in either of their cases, and that no reference on the points of EU law should be made to the Court of Justice in Luxembourg. A resounding failure, then, for the claimants and their legal teams.

On the other hand, however, the Government did not get want they wanted either. The Government’s case was argued by the Attorney General himself. He urged that the Supreme Court should decline to follow the ECtHR’s judgments in Hirst and Scoppola v Italy (2013) 56 EHRR 19 and should rule that, under the HRA, Convention rights do not include the right of a convicted prisoner to vote in elections. The current UK Government are of the view that the ECtHR was wrong in Hirst. Their predecessors in office shared this view. But the Supreme Court refused the Attorney General’s invitation to depart from Hirst. Lord Mance, giving the lead judgment, gave the following reasons.

In Horncastle (T&T pp 768-9) and in Pinnock (T&T pp 769-70) the Supreme Court made plain that it will not always follow where Strasbourg has led. In Chester and McGeoch, Lord Mance indicated that the purpose of the domestic courts occasionally departing from Strasbourg authority is to engage Strasbourg in dialogue “in the confidence that the reasoned expression of a diverging national viewpoint will lead to a serious review of the position in Strasbourg” (para 27). But “there are limits to this process”, particularly where (as here) there are not one but two recent judgments of the Grand Chamber on the point at issue. In such circumstances it would have to involve “some truly fundamental principle of our law or some most egregious oversight or misunderstanding” for a domestic court not to follow Strasbourg authority. The Attorney General had sought to argue that Hirst and Scoppola did not constitute a “clear and consistent line of decisions”; that in Hirst especially the ECtHR had “failed to respect” the UK’s wide margin of appreciation (para 30); that Parliament had considered the matter in detail and had concluded overwhelmingly that the law should not be changed (see the Commons debate of February 2011, references in T&T at p 283); and that in any event the ECtHR had mischaracterised the nature of the UK’s ban on prisoner voting (para 33). Lord Mance described these as “forceful submissions” (para 34) but held nonetheless that the Court should follow Hirst: it would “exaggerate” the matter, he said, to regard prisoner voting as going to some “fundamental substantive or procedural aspect of our law” (para 35). Such a fundamental matter would have to be at stake before the court could justify departing from Strasbourg authority.

Of importance in Chester and McGeoch was the fact that, even if Parliament amends the law to allow some convicted prisoners to vote, it will surely not amend the law — and will surely not be required by European human rights law to amend the law — so as to extend the franchise to all convicted prisoners. Those convicted of the most serious offences, and those sentenced to the longest terms of imprisonment, will continue to be disenfranchised. This will include murderers such as the two claimants in this case. For other, lesser, offences and in respect of other, shorter, sentences, Lady Hale said that “the arguments for and against … are quite finely balanced” (para 91). On the one hand, she could “see the logic of the Attorney General’s argument, that by deciding an offence is so serious that it merits a custodial penalty, the court is also deciding that the offence merits exclusion from the franchise for the time being” (para 92). On the other hand, she declared that she had “some sympathy for the view of the Strasbourg court that our present law is arbitrary and indiscriminate” (para 98). With this latter sentiment Lord Clarke agreed (paras 109-10).

Lord Sumption offered a different perspective. First of all, and quite refreshingly, he pointed out that “the present issue has nothing whatever to do with the protection of minorities”. “Prisoners,” he said, “belong to a minority only in the banal and legally irrelevant sense that most people do not do the things which warrant imprisonment by due process of law” (para 112). Secondly, he sought to unpick the notion that the UK’s ban is arbitrary. The argument here is that you may be sentenced, for example, to a 28-day term of imprisonment. If that term is in January 2015 you will not be disenfranchised, as there is no election at that time. But if it is in May 2015 you will be, as the next UK general election will occur that month. Of this alleged arbitrariness, Lord Sumption was dismissive. He said: “I decline to regard it as any more significant than the fact that [the term of imprisonment] may coincide with a special anniversary, a long anticipated holiday or the only period of fine weather all summer” (para 115). Whether these analogies are apt, however, may be open to doubt. Voting may be a basic right, whereas the enjoyment of anniversaries, holidays or good weather clearly is not.

Leaving this to one side, on the critical issue of whether the Court should follow the line set down in Hirst, Lord Sumption was clear. Referring to section 2 of the HRA (T&T p 766), Lord Sumption said:

“In the ordinary use of language, to ‘take into account’ a decision of the ECtHR means no more than to consider it, which is consistent with rejecting it as wrong. However, this is not an approach that a UK court can adopt, save in altogether exceptional cases. The courts have for many years interpreted statutes and developed the common law so as to achieve consistency between the domestic law of the UK and its international obligations, so far as they are free to do so. In enacting the HRA 1998, Parliament must be taken to have been aware that effect would be given to the Act in accordance with this long-standing principle. A decision of the ECtHR is more than an opinion about the meaning of the Convention. It is an adjudication by the tribunal which the UK has by treaty agreed should give definitive rulings on the subject. The courts are therefore bound to treat them as authoritative … unless it is apparent that [the ECtHR] has misunderstood or overlooked some significant feature of English (sic) law or practice …” (para 121).

Here, the matter (prisoners’ right to vote) could not be regarded as a significant, fundamental or exceptional feature of UK law. Thus, there was no justification for departing from Strasbourg’s authority.

Importantly, this is despite the fact that for Lord Sumption Strasbourg authority on the matter is odd, curious and wrong. Offering a forensic examination of the holdings in Hirst and Scoppola, Lord Sumption summarised the ECtHR’s position as follows:

“the Strasbourg Court has arrived at a very curious position. It has held that it is open to a Convention state to fix a minimum threshold of gravity which warrants the disenfranchisement of a convicted person. It has held that the threshold beyond which he will be disenfranchised may be fixed by law by reference to the nature of the sentence. It has held that disenfranchisement may be automatic, once a sentence above that threshold has been imposed. But it has also held that even with the wide margin of appreciation allowed to Convention states in this area, it is not permissible for the threshold for disenfranchisement to correspond with the threshold for imprisonment. Wherever the threshold for imprisonment is placed, it seems to have been their view that there must always be some offences which are serious enough to warrant imprisonment but not serious enough to warrant disenfranchisement. Yet the basis of this view is nowhere articulated” (para 135).

Without the decisions in Hirst and Scoppola, Lord Sumption would have held that “the question how serious an offence has to be to warrant temporary disenfranchisement is a classic matter for political and legislative judgment, and that the UK’s rule is well within any reasonable assessment of a Convention state’s margin of appreciation”.

There is much to be welcomed in Lord Sumption’s judgment, but there is one error in it which he should not be making. At para 130 he talks of the HRA having incorporated provisions of the ECHR into “English law”. The HRA is a UK statute, not one which pertains only to England and Wales. At para 137 he says of the Grand Chamber in Hirst and Scoppola that it did not overlook or misunderstand any principle of “English law”. The Representation of the People Act 1983, with which the ECtHR was concerned in Hirst, is a UK statute, not one which pertains only to England and Wales. And at para 138 he says that given the circumstances of Hirst and Scoppola, it would not be legally defensible for “an English court” to say that A3P1 has a meaning different from that set out by the Strasbourg court. Yet the appeals which the Supreme Court were deciding in Chester and McGeoch were appeals from both the English Court of Appeal and the Court of Session in Edinburgh. Sumption is a Justice of the United Kingdom Supreme Court, which is a court not only of English law. He should learn when to use the phrase “English law” and when not to. Perhaps Lords Reed and Hodge could give him some coaching?

Be that as it may, the decision of the Supreme Court in Chester and McGeoch leaves the law as the Court found it. The unwelcome, unwise and unnecessary ruling in Hirst is left intact; EU law is kept firmly away from the agonies of prisoners’ right to vote in the UK; no definitive UK judicial statement is offered as to whether (or which) convicted prisoners should be enfranchised; the matter is left for Government and Parliament. On that front, the Government’s Draft Voting Eligibility (Prisoners) Bill, published in November 2012, continues its detailed and time-consuming (foot-dragging?) pre-legislative scrutiny before a specially convened Joint Committee in Parliament. If you can bear it, watch this space, as the saga grinds on.

3. The Lobbying and Third-party Campaigning etc Bill

The legislative load in the current session of the UK Parliament includes several Bills on critical matters of public policy, but very few that touch on aspects of constitutional law. The Care Bill, the Financial Services (Banking Reform) Bill, the Children and Families Bill, and the Anti-Social Behaviour, Crime and Policing Bill, among others, are each highly significant in policy terms. But there are few provisions in these Bills that directly affect our constitutional affairs or arrangements. One current Bill of which this cannot be said is the Transparency of Lobbying, Third-party Campaigning and Trade Union Administration Bill. As well as amending aspects of trade union law, this Bill does two things of constitutional importance. It introduces a register of consultant lobbyists, and it significantly extends the scope of third-party political campaigning that will fall to be regulated by the Electoral Commission. (Third-party campaigning means campaigning by organisations other than political parties and by people other than candidates in elections.) Both the lobbying provisions, and the provisions on third-party campaigning, are controversial.

As to the former, there has been pressure for some years that the business of lobbying should be regulated and made as transparent as possible. The Bill takes tentative steps in this direction, but it really does not go very far. In-house lobbyists are left unregulated and, as the Bill stands, there will be no statutory requirement that lobbyists adhere to any code of conduct (a number of voluntary codes are in place at the moment). There is a sense that in these respects the Bill may be a missed opportunity.

More worryingly, there is grave concern that the provisions on third-party campaigning may inappropriately and disproportionately inhibit freedom of political expression. Charities, as well as trade unions, fear that they will be unwittingly caught in the newly extended regulatory framework, rendered unable to make their customary contributions to public and civic life. In part, this is because the Bill has been horribly rushed. Several provisions of the Bill have not been thought through, and there is a strong sense throughout Westminster that aspects of the Bill have been driven not by the public interest but by an unsavoury partisanship.

For these reasons, the House of Commons Political and Constitutional Reform Committee, the Joint Committee on Human Rights  and the House of Lords Constitution Committee have each published highly critical reports on the Bill. At the time of writing this post, the Bill has completed its Commons stages and is about to commence its Lords stages. Once again we will be looking to the Upper House to ensure that the Government’s legislation is fit for purpose, fair and lawful.

 

 

What’s been happening to the British constitution: an overdue update

It is too long since I have posted updates on this blog. In preparation for the new teaching year, which is about to start, what follows is a summary of the leading developments in British constitutional law and practice in 2012-13. They are presented here in the order in which they would appear in Turpin and Tomkins (hereafter, T&T).

1. Ongoing debate and confusion about Bill of Rights reform

Labour’s great constitutional reforms of the 1997-2001 Parliament are coming under increasing pressure. The imbalanced way in which devolution was delivered for Scotland (see #3 below) and ongoing rows about the Freedom of Information Act (see #2 below) are part of this, but top of the bill comes the ever more bitter wrangling about the Human Rights Act. Does this legislation over-privilege liberty at the expense of tradition, authority or security? Does it give too much power to the judges? Are ministers and Parliament unreasonably constrained? These questions are being raised particularly loudly on the Conservative benches in the House of Commons, as well as in the press. The questions are not going to go away, not least because of the spectacular (and widely predicted) failure of the Bill of Rights Commission to address them properly. The report is so woeful that I won’t post a link to it here (Google it if you must); there is a brilliant commentary on the report by Dr Mark Elliott (University of Cambridge) at [2013] European Human Rights Law Review 137 — you really don’t need to read anything else on this sorry little episode.

Two of the highest profile disputes about human rights in recent years have been the saga of prisoners’ right to vote (see T&T p 283) and the deportation of Abu Qatada (see here). The former continues to rumble on — an important judgment is expected on this matter from the UK Supreme Court in about October — and meanwhile a parliamentary committee continues to examine the matter in detail. The latter was solved, after a Treaty was agreed between the UK and Jordan, enabling the Secretary of State in July 2013 to deport Abu Qatada to Jordan without breaching human rights law.

2. Evans v Information Commissioner [2012] UKUT 313

This is my favourite case from 2012, and not just because I was in it. This was the case brought under the Freedom of Information Act 2000 by the Guardian newspaper against seven Government departments, seeking access to correspondence between ministers and HRH The Prince of Wales. The Guardian wanted to see the extent of the Prince’s notorious “lobbying” of politicians. Access was denied and the newspaper took the matter to the Information Rights Tribunal. Because of the complexity and sensitivity of the matter, the case was heard  by the Upper Tribunal, chaired by a High Court judge (Walker J). The constitutional conventions pertaining to the Heir to the Throne became central to the legal argument in the case. Expert witnesses were brought in to assist the Tribunal on these matters: Professor Rodney Brazier (University of Manchester) for the Government departments, and me for the Guardian. The Guardian won the case.

In its judgment the Tribunal examined in detail the various public interest factors which mitigated either in favour of or against disclosure, the analysis being presented in the framework of what the Tribunal understood the constitutional / conventional position to be. The judgment repays careful reading, both for its treatment of constitutional conventions and for its analysis of the public interest.

What happened next also matters, however, for the Attorney General exercised his power under FOIA s.53 to veto the Tribunal’s decision. This is a “safety valve” in the freedom of information legislation which allows ministers exceptionally to have the last word in determining what is in the public interest. The Attorney General’s exercise of the veto was unsuccessfully judicially reviewed. As well as the decision of the Tribunal, the AG’s statement of reasons as to why he was using the veto power and the Divisional Court’s judgment upholding the Attorney’s decision also repay careful reading. They will tell you much about: the relationship of law to constitutional convention; the constitutional position and powers of the Monarchy; the reasons why Prince Charles is a constitutionally controversial figure; the curious relationship of judicial to ministerial decision-making authority under the Freedom of Information Act; the meaning of that difficult phrase “the public interest”; and much else besides. You could teach an awful lot of most universities’ constitutional law courses from these sources alone! (And, for a bit of fun, look up David Aaronovitch’s account of the Brazier v Tomkins arguments in the Times, 18 October 2012, p 27).

3. Scotland etc

Where to start? On 18 September 2014 a specially extended electorate in Scotland will vote in a referendum on the question of whether Scotland should be an independent country (“specially extended” because the franchise will extend to minors: 16- and 17-year olds will be permitted to vote; prisoners will not be permitted to vote). Polls consistently show that the answer will be No, but the polls have been wrong before and informed opinion in Scotland is that it will be closer, perhaps a great deal closer, than the polls currently suggest. If there is a Yes vote, Scotland will become an independent State, leaving the United Kingdom and ending the Union with England that dates back to 1707. Were this to happen it would be the most traumatic constitutional event to afflict Britain in more than a century. I am not neutral on this — how could you be? — and should you wish to do so you can read some of my many musings on why the Unionist position should prevail on a separate blog, here.

From a UK constitutional point of view, perhaps the most interesting question is what should happen next (if the polls are to be believed), after a No vote in the referendum. Two fault-lines have emerged in the devolution “settlement” of 1997-99: first as regards the imbalances of the Scottish Parliament’s powers and secondly as regards the centre and the consequences of Scottish devolution for England. Briefly, on the first, while the Scottish Parliament has very considerable powers to spend money (and to make law), it has rather limited powers to raise money. We have extensive legislative devolution in the UK (not only in Scotland, of course) but little fiscal devolution. One of the main arguments following any No vote in the referendum will be over the extent to which the Scottish Parliament’s responsibilities for the raising of money should match its legislative and spending powers. On the second, while the basic devolutionary principle of home rule has now been accepted by all the UK’s main parties, the consequences for England and for the UK as a whole have not been. In part this is about money (the Barnett formula, and all that) — and this aspect could be made to go away if fiscal devolution takes off — but in part it’s also about the famous West Lothian Question, also known as “English votes for English laws”. On this, the March 2013 report of McKay Commission was excellent: you can read more about this here.

4. Britain and the European Union

The Conservative party’s agony over Britain’s EU membership continues. In January 2013 the Prime Minister undertook that if his party won the forthcoming 2015 general election he would seek to renegotiate the terms of the UK’s membership of the EU and then to put the result of such renegotiation to an in/out referendum. Under the leadership and direction of the Foreign Office the Government has commenced the publication of a long series of analysis papers, reviewing the current distribution of competences between the UK and the EU: you can read the first papers in the series here. No-one seems very sure what the Labour party’s position is on this matter at the moment; the Liberal Democrats are committed to the UK’s continuing membership of the EU; and the SNP wants an independent Scotland to become a Member State of the EU. Meanwhile, argument continues over the extent to which the UK should opt into or out of the EU’s various measures in the area of justice and home affairs (the most controversial of these is the European Arrest Warrant): for an overview of the issues, see here.

5. Individual ministerial responsibility

In October 2012 the Secretary of State for Transport announced that the competition to award the franchise for the West Coast mainline had been cancelled because of “significant” flaws in the procurement and tendering process. The cancellation of the process cost the public purse in excess of £50 million. A number of officials were suspended and subjected to disciplinary proceedings and the Government’s position was that the lessons to be learned were principally for civil servants rather than ministers. Yet the Transport Select Committee found that the flaws in the process were due to “failures of governance, assurance, and policy and resourcing” (para 8). These matters fall squarely within the scope of ministerial responsibility (see T&T pp 573-91), yet no minister resigned over the matter.

By contrast, the Chief Whip, Andrew Mitchell, was forced to resign from the Government in October 2012 over remarks allegedly made the previous month when he was reported to have lost his temper with a police officer guarding the gates of Downing Street. The Public Administration Select Committee was highly critical of the way this affair was investigated.

Neither episode fills one with confidence that the conventions of individual ministerial responsibility are operating effectively: that sense is only compounded when the two episodes are examined alongside one another. What is really more important: swearing at a police officer (if this is indeed what occurred) or overseeing the waste of more than £50 million of public money?

6. Collective ministerial responsibility

The extent to which coalition government is putting a strain on the constitutional rules pertaining to the collective responsibility of Government to Parliament has arisen in a number of contexts since 2010. This will be the subject of the House of Lords Constitution Committee’s major policy inquiry in 2013-14: the Committee’s call for evidence sets out the issues in summary form.

7. The civil service

For how long will the well-established values of the British civil service remain? Since the mid-nineteenth century the civil service has been permanent, politically neutral, objective and appointed on merit on the basis of open competition (see T&T pp 439-49). Ministers come and go; and are partisan. Civil servants remain to serve whichever minister is appointed to the Department; and must serve with equal loyalty ministers from all political parties. The structure of accountability that we have built on the basis of these foundations is that civil servants are responsible to their ministers; and ministers are responsible to Parliament. But this does not always work. If a civil servant (rather than a minister) wastes public money (see #5 above), for example, should Parliament not be able to question that civil servant directly? Increasingly, the House of Commons Public Accounts Committee does just that, including when it rather aggressively questioned officials from Her Majesty’s Revenue and Customs (HMRC) over certain matters pertaining to tax deals apparently struck with large corporations. When this occurs, it places strain on the traditional constitutional position that it is ministers, and not officials, who are responsible to Parliament. (HMRC may be an unusual case, however, in that there is no responsible minister: we want our tax affairs administered objectively, and so ministers are kept out of it.) The House of Lords Constitution Committee published a detailed report on the accountablity of civil servants in November 2012.

At the same time the Government launched its Civil Service Reform Plan. The Reform Plan contains proposals to extend ministers’ influence over the appointment of the most senior civil servants. Will this politicise the civil service, reducing its ability to serve governments of all colours? Or is this a necessary step towards achieving greater harmony, and therefore greater efficiency, in the co-operation which is needed between ministers and their most senior officials? For the expert verdict of the Institute for Government, which has followed this matter closely, see here.

8. National security law

One of the case-studies of liberty and the British constitution presented in T&T ch 11 is national security law. There have been significant developments in national security law in 2012-13, the most important being the passage and coming into force of the Justice and Security Act 2013. This legislation does three things. First, it makes modest reforms to the Intelligence and Security Committee, the committee which scrutinises the work of the UK’s security and secret intelligence services. Secondly, it extends the availability of closed material procedure and special advocates. And thirdly, it provides that the courts’ Norwich Pharmacal jurisdiction, famously deployed in the Binyam Mohamed case as a means of seeking access to sensitive national security information (pertaining to Mr Mohamed’s torture) can no longer be used in “sensitive” cases (as defined in the Act). (On Binyam Mohamed, see T&T pp 105-7.) This last reform may not be as controversial as might first have been thought, however, owing to the fact that in Omar the courts had in any case ruled that the approach taken in Binyam Mohamed was erroneous.

The extension of closed material procedure and special advocates is hugely controversial. On the one hand, it may enable more sensitive national security cases to be tried than would otherwise have been possible. On the other hand, however, the use of closed material procedure marks a significant inroad into what the UK Supreme Court has held is the fundamental common law principle of open justice. This is a complex subject, on which the leading judicial sources are Al Rawi v Security Service [2011] UKSC 34 and Bank Mellat v HM Treasury (No 1) [2013] UKSC 38. For an extended analysis, see my article on the Justice and Security Act posted on SSRN here.

9. Freedom of expression

Another of the case-studies of liberty and the British constitution presented in T&T ch 11 is freedom of expression. In the book we note that in 2008 the House of Lords upheld the restrictions imposed in the United Kingdom on political broadcasting (party political broadcasts and the like) — see the Animal Defenders International case. In April 2013, by a wafer thin nine-votes-to-eight majority, the Grand Chamber of the European Court of Human Rights agreed that the UK legislation was not in breach of Article 10 of the Convention. The opposite conclusion had been expected in a number of quarters but would have caused a row between London and Strasbourg that would make the fuss about prisoners’ right to vote look like a ripple in a teacup.

Finally, some things to look out for in the coming months:

• More fun and games with prisoners’ right to vote, as the UK Supreme Court hands down what could become a leading judgment on the matter
• A big fight on the Lord Chancellor’s plans to reform legal aid; a lesser fight also on his plans to reform judicial review in English law
• The Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Bill, which is set to have a stormy passage through Parliament
• Provisions in the planned Immigration Bill designed to qualify the way courts and tribunals have been ruling on aspects of the human rights of persons subject to immigration control (e.g. in the context of the deportation, post-sentence, of what the media like to call “foreign criminals”)

Finally finally, you can now follow me on Twitter @ProfTomkins. Not everything I tweet concerns constitutional law, but quite a lot of it does. 

The emergence of a devolution jurisprudence?

In late 2012 the UK Supreme Court decided two cases on the law of devolution. On the face of it each was quite separate from the other but the Court clearly saw them as being closely related and took the opportunity to develop some potentially important principles of devolution law. Each case was a challenge to the legislative competence of a devolved legislature. The first case was from Wales. The Attorney General referred to the Supreme Court the question of whether certain provisions of the Local Government Byelaws (Wales) Bill were within the legislative competence of the National Assembly. The second case was an appeal from the Court of Session in Edinburgh. Imperial Tobacco Ltd argued that certain provisions of the Tobacco and Medical Services (Scotland) Act 2012 were outwith the legislative competence of the Scottish Parliament. In each case the Supreme Court unanimously rejected the challenge and upheld the legislation.

Welsh Byelaws

The Attorney General’s reference concerned the first Bill passed by the National Assembly under the powers conferred upon it by the provisions of the Government of Wales Act 2006 (“GOWA”) that came into effect following the referendum in 2011 (see T&T pp 250-2). The Local Government Byelaws (Wales) Bill was intended to simplify procedures for making and enforcing local authority byelaws in Wales. The Attorney General referred sections 6 and 9 of the Bill to the Supreme Court. Section 6 removed the need for certain byelaws to be confirmed by the Welsh Ministers or the Secretary of State; section 9 provided that the range of byelaws in respect of which confirmation would no longer be required could be extended.

The legal challenge to section 6 centred upon Sched 7, Part 2, para 1 to GOWA, which provides that “A provision of an Act of the Assembly cannot remove or modify … any pre-commencement function of a Minister of the Crown”. For the Welsh Ministers, it was contended that section 6 was saved by Sched 7, Part 3, para 6(1)(b), which provides by way of exception that the rule just quoted does not prevent a provision of an Act of the Assembly removing or modifying a pre-commencement function of a Minister of the Crown if that provision is merely “incidental” or “consequential”.

When the equivalent provisions of the Scotland Act 1998 were examined by the Supreme Court in Martin v Most [2010] UKSC 10, the matter divided the Court three-to-two. In the Welsh Byelaws case, by contrast, the Court was unanimously of the view that the Welsh Ministers were correct that section 6 of the Local Government Byelaws (Wales) Bill was saved by Sched 7, Part 3, para 6(1)(b). Lord Neuberger gave six reasons for reaching this conclusion, of which the most important was that the primary purpose of the Bill could not have been achieved without the removal of the Secretary of State’s confirmatory powers. (The Secretary of State’s confirmatory powers were removed as regards byelaws made by local authorities in England by section 129 of the Local Government and Public Involvement in Health Act 2007.)

As for section 9 of the Bill, which was also found to be within the Assembly’s legislative competence, the Supreme Court relied on GOWA section 154(2). This section provides that a provision of an Act of the Assembly is, “if possible”, to be read “as narrowly as is required for it to be within competence”. Using this provision, section 9 was interpreted to mean that in the future the Welsh Ministers could remove the need for confirmation of byelaws only if the confirmation would have been for the Welsh Ministers and not the Secretary of State or – where it would have been for the Secretary of State – if the removal of the power was merely incidental or consequential.

Imperial Tobacco

The Tobacco and Primary Medical Services (Scotland) Act 2010, section 1, prohibited the display of tobacco products at the point of sale. Section 9 of the Act prohibits vending machines for the sale of tobacco products. Imperial Tobacco challenged the lawfulness of these provisions, arguing inter alia that they related to matters “reserved” to the United Kingdom Parliament under Sched 5 to the Scotland Act 1998. Their challenge was unsuccessful in both the Outer House and, on appeal, in the First Division of the Court of Session; it was equally unsuccessful in the Supreme Court.

The core of Imperial Tobacco’s argument was that sections 1 and 9 of the Act related to “the sale and supply of goods to consumers” and to “product safety”, both of which are expressly listed as matters reserved to the United Kingdom Parliament (by Sections C7 and C8 of Head C in Part II of Sched 5 to the Scotland Act 1998). Under section 29(3) of the Scotland Act, whether a provision of an ASP “relates to” a reserved matter is to be determined by reference to its purpose (having regard, among other things, to its effect in all the circumstances). The purpose of sections 1 and 9 was to reduce tobacco sales, on grounds of public health. The Supreme Court ruled that this purpose could not be said to have “anything to do with consumer protection”: the aim was to “discourage … sales of tobacco products, not to regulate how any sales are to be conducted so as to protect the consumer from unfair trade practices” (para 40).

A devolution jurisprudence?

In the course of the last 12-18 months there has been much academic and political argument about the proper interpretation of the UK’s various devolution statutes. The impetus behind much of the controversy was the dispute over whether the Scotland Act 1998 confers on the Scottish Parliament the competence to legislate on any sort of independence referendum. (My view remains that it does not.) That argument is no longer of any immediate practical concern, owing to the fact that the requisite legislative competence has now been conferred on Holyrood by an Order in Council made under section 30 of the Scotland Act. (An earlier post here dealt with the key developments up to March 2012; a forthcoming post will summarise developments since then.)

In both the Welsh Byelaws case and Imperial Tobacco the Supreme Court took the opportunity to set out its view of the proper legal interpretation of the devolution legislation. A starting point is to bear in mind the Court’s view that the three principal pieces of legislation – the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006 – have both similarities in common and differences between them. Whilst, in some circumstances, it will be appropriate to read across from case law concerning one of these enactments to arguments about another of them, caution must always be exercised in doing so. Thus, while Lord Hope stated in the Welsh Byelaws case that “the essential nature of the legislatures that the devolution statutes have created in each case is the same” (para 81), Lord Neuberger in the same case warned that these are “different statutes, and one must therefore be wary of assuming that they have precisely the same effect, as context is so crucially important” (para 50).

One difference, it is now clear, is that while in Robinson v Secretary of State for Northern Ireland [2002] UKHL 32 (see T&T pp 88-90) the House of Lords ruled that the Northern Ireland Act, being a “constitutional statute”, should be interpreted “purposively and generously” the Supreme Court is highly reluctant to read this across into the interpretation of GOWA or the Scotland Act. In the Welsh Byelaws case Lord Neuberger stated that it was unnecessary for him to say anything about whether the approach in Robinson could or should inform the judicial interpretation of GOWA (para 69) but Lord Hope stated that describing a devolution statute as a “constitutional statute” was a matter of description only (i.e. that such a statute concerns matters of constitutional law) and could not be taken as a guide to the proper interpretation of the statute (para 80). Indeed, for Lord Hope, a devolution statute “must be interpreted like any other statute”. Lord Hope said the same thing in his judgment in Imperial Tobacco: “the description of the [Scotland] Act as a constitutional statute cannot be taken, in itself, to be a guide to its interpretation” (para 15). The First Division of the Inner House had reached the same conclusion in Imperial Tobacco, Lord Reed (now, of course, a Justice of the Supreme Court) making it plain that even if the political context of the Northern Ireland Act justified a more generous interpretation of its terms, no such argument could be made for the Scotland Act. Robinson v SSNI, it seems, while not being overruled, has been confined to its facts. The Court of Session and the Supreme Court alike have made it plain that Robinson v SSNI does not lay down a general rule as to the interpretation of the UK’s devolution legislation. This, in my view, is very much to be welcomed, not least because it sits much more comfortably with our long-standing precepts of the sovereignty of Parliament than does the rather awkward judgment in Robinson.

In Imperial Tobacco, Lord Hope stated that “it is unsatisfactory that there should continue to be room for doubt” on the matter of the proper interpretation of the Scotland Act 1998 (para 12). In order to clarify the matter, his Lordship set out three basic principles. First, “the question of legislative competence must be determined in each case according to the particular rules that have been set out in section 29 of and Schedules 4 and 5 to the 1998 Act” (para 13). Secondly, “those rules must be interpreted in the same way as any other rules that are found in a UK statute”. Devolution, he added, was designed to be “coherent, stable and workable” but these attributes, while proper to have in mind, do not amount to “a principle of construction” (para 14). That said, “the best way of ensuring that a coherent, stable and workable outcome is achieved is to adopt an approach to the meaning of a statute that is constant and predictable” (ibid). To return for a moment to the debate about Holyrood’s competence to legislate for an independence referendum, some commentators had suggested that cases about tobacco legislation could not be taken as reliable indicators of how the courts would interpret an ASP that, without a section 30 Order, purported to authorise an independence referendum. Lord Hope’s statement just quoted gives the lie to this: the Scotland Act 1998 and the rules contained within it as to the legislative competence of the Scottish Parliament will be interpreted and enforced by the courts with constancy and predictability – their interpretation will not wax and wane according to some fanciful notion of whether the ASP is concerned with important constitutional matters or not.

A final point to note in Lord Hope’s judgment in Imperial Tobacco is his summary of section 29 of the Scotland – this is his third basic principle. While section 29 “does not create a presumption in favour of competence”, it is none the less intended, “within carefully defined limits, to be a generous settlement of legislative authority” (para 15). Perhaps this judicious statement should be borne in mind amid the political clamour for more powers to be devolved to Holyrood?

Notable cases thus far in 2012

In addition to the cases on freedom of information and on freedom of assembly which I have discussed in their own blog posts in recent days, the following are among the more noteworthy cases in constitutional law in 2012 to date.

1. Assange v Swedish Prosecution Authority [2012] UKSC 22

From the perspective of constitutional law this decision is interesting less because of the notoriety of the claimant (Mr Julian Assange) and his online achievements (with WikiLeaks), and more because of what the Supreme Court says about the interpretation of the Extradition Act 2003 and the use to be made of EU and international law in its interpretation. This is a matter we consider in the book at pp 61, 79-80 and 356-9. At issue in Assange was whether the European Arrest Warrant (EAW) issued by the Swedish prosecution authority had been issued by a “judicial authority” within the meaning of the Extradition Act 2003. The question divided the Supreme Court 5-to-2, with the majority ruling that it had been and the dissentients ruling that it had not been (thus, Mr Assange’s extradition to Sweden was deemed to be lawful in the eyes of the majority). Parliamentary material arising from the Extradition Act’s passage through Parliament seemed to make clear that “judicial authority” had been intended to mean court, magistrate, or judge — and not prosecutor. Even without relying on any parliamentary materials, it might be thought that “judicial authority” in a UK statute would ordinarily mean a court, magistrate or judge. But the majority ruled that the UK statute, which had been enacted in order to give effect to the EU’s Framework Decision on the EAW, should if possible be interpreted consistently with the UK’s international obligations, including its obligations as regards the EAW (cf R v Lyons, cited at p 61 of the book). In the Framework Decision on the EAW, the majority ruled, the phrase “judicial authority” included not only courts and magistrates, but extended also to prosecutors. The same phrase in the UK statute must therefore have the same meaning. Lord Mance and Lady Hale dissented; for these Justices the meaning of “judicial authority” in the statute clearly did not extend to prosecutors and, in any case, the meaning of that phrase in the Framework Decision was obscure. The case is a fascinating example of the extent to which international and EU law may be used by our courts as aids to the interpretation of a UK statute.

2. R (Guardian News and Media) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420

An important case on freedom of speech, (a) illustrating the close relationship between common law reasoning and Article 10 ECHR in free speech issues and (b) focusing in particular on the right of access to information as an element of free speech — an element of free speech which the court rightly sees also as a component of the rule of law. In the case the Guardian newspaper was successful in arguing that it should have access to court documents relating to the extradition of two British citizens to the US in relation to bribery/corruption allegations involving the activities in Nigeria of a subsidiary of the US company, Halliburton. The documents were needed, claimed the Guardian, to facilitate its ongoing investigations into matters of bribery and corruption.

3. R (British Sky Broadcasting and others) v Chelmsford Crown Court [2012] EWHC 1295 (Admin)

Another free speech case. This time various media organisations successfully resisted a court order that had required them to disclose to the police video recordings they had made of the Dale Farm evictions. The police had wanted the recordings to enable them to identify a number of the people who had been involved in the evictions. Under the Police and Criminal Evidence Act 1984 the police may seek access to such material where they can show that it would be of “substantial value” to an investigation (PACE, Sched 1). Unfocused or scattergun requests by the police may not lawfully result in a court order that the material be produced. Here, the Administrative Court ruled that the “substantial value” test had not been satisfied and that the order of the lower court that the recordings be handed to the police had been a disproportionate interference with the media organisations’ right to freedom of expression under Article 10 ECHR.

4. Flood v Times Newspapers [2012] UKSC 11

More free speech, this time the Supreme Court (overruling the Court of Appeal) applying in the newspaper’s favour the Reynolds “responsible journalism” defence in an action for defamation in connection with the reporting of allegations of police corruption (on Reynolds, see pp 793-4 of the book). Flood breaks no new ground — it is an application of Reynolds and Jameel — but it is another interesting example of the delicate balancing exercise that courts must undertake in litigation concerned with fundamental rights.

5. R (Calver) v Adjudication Panel for Wales [2012] EWHC 1172 (Admin)

A final free speech case. In this one a Councillor was successful in arguing that his censure for breaching a Community Council Code of Conduct was a disproportionate interference with his freedom of expression. The Code required Councillors to show “respect and consideration” for others. Cllr Calver wrote a blog on which he posted comments critical of certain of his colleagues. The court ruled that while much of what was posted was unattractive, the political nature of the remarks meant that the claimant’s free speech rights needed to be accorded considerable weight and that his censure in respect of them was disproportionate.

6. R (National Secular Society) v Bideford Town Council [2012] EWHC 175 (Admin)

A town councillor (supported by the National Secular Society) objected to the saying of prayers as a formal item of Council business. The claimant argued, among other matters, that a local authority had no legal power to itemise the saying of prayers on the agenda of its meetings. On this point the claimant was successful, the court ruling that the terms of section 111 of the Local Government Act 1972 could not render the matter lawful (on this provision, see p 273 of the book). The decision encouraged the Secretary of State (Mr Eric Pickles MP) to bring into force earlier than he had planned section 1 of the new Localism Act 2011 (on this provision see also p 273 of the book).

7. R (Williams) v Surrey County Council [2012] EWHC 867 (QB)

Section 149 of the Equality Act 2010 provides for a “public sector equality duty” (PSED), requiring public authorities to pay “due regard” to the need to eliminate discrimination and to advance equality of opportunity. The PSED is arising with increasing frequency as a matter in litigation. An example is Williams, where it was successfully argued for the claimant that Surrey CC had failed to discharge its PSED in its decision to make certain changes to its library service. As local authorities are faced with growing pressures on their budgets, it may be that we will see a glut of case law featuring arguments that the PSED has been breached in these circumstances.

 

Update on Legislation

The last ten weeks of 2011 were a relatively quiet time in terms of major constitutional developments. The beginning of 2012, by contrast, has started with a real bang, and is witnessing a dispute between the UK and the Scottish Governments that could well set much of the constitutional agenda for the next three years. I will say more about this in another post in the next few days.

First, there are two matters from the end of 2011 that I want to update. This post concerns legislation. The next post will concern an under-reported development with regard to the process of constitutional reform.

Three Bills referred to in the book have now been passed (this is in addition to those Bills noted below last October). The newly enacted measures are the Localism Act 2011, the Public Bodies Act 2011 and the Terrorism Prevention and Investigation Measures Act 2011. A word now on each.

Section 1 of the Localism Act has now enacted the form of words (quoted from clause 1 of the Bill) that we cited at p 273 of the book. The question posed at p 273 and the comment made at p 276 still apply: i.e., whether the new s 1 will mean the end of the ultra vires principle or whether it will mean only a qualification to that principle; and to note while the Act liberalises local authorities to some extent, at the same time it confers a range of fresh powers on the Secretary of State. The former will be determined in due course by case law. One further provision of the Localism Act 2011 to note is section 25, which concerns the law of bias (or predetermination) in the context of local authorities. Case law on this matter is set out in chapter 10 (p 696). Section 25 would appear to make it harder than is suggested in the case law to argue that a decision of a local authority should be quashed for reasons of predetermination.

The Public Bodies Act 2011, as prefigured at p 436, effects very considerable reforms to arms-length bodies (or quangos). As predicted in chapter 2 (pp 129-30) the legislation was substantially amended during its passage through Parliament in the light of the extensive criticisms of the Bill that were voiced by the select committees that examined it. For example, a number of the procedural safeguards now legislated for in section 10 of the Act were not contained in the Bill as it was first introduced.

Finally, the Terrorism Prevention and Investigation Measures Act 2011 (the TPIMs Act) will, when it is brought fully into force, repeal the Prevention of Terrorism Act 2005; and thus TPIMs will replace control orders in the panoply of the UK’s counter-terrorism measures. The ministerial statement that announced this is reproduced at p 787 of the book.

AXA in the Supreme Court: Is the Sovereignty of Parliament Doomed?

The UK Supreme Court has handed down its decision in AXA General Insurance v Lord Advocate [2011] UKSC 46. The case raises critically important questions for the whole of the UK, and also some significant points of concern in Scotland. But please do not read this as a Scottish case only, or as a case which only the Scots need to worry about.

Earlier judgments in the case are summarised at pp 236-7 of the book. What the Supreme Court has ruled now supersedes what the Court of Session had ruled, and the extract on p 237 from the judgment of the Lord Ordinary now needs to be read subject to what the Supreme Court have said.

Introduction

The Damages (Asbestos-related Conditions) (Scotland) Act 2009, an Act of the Scottish Parliament, provided that pleural plaques and certain other asbestos-related conditions were actionable in Scotland for the purposes of damages in the law of personal injury. In 2007 the House of Lords had ruled in a series of English appeals that pleural plaques did not constitute recoverable damage for the purposes of the law of negligence (see Rothwell [2007] UKHL 39). AXA and other insurance companies challenged the Act of 2009 both on common law and on Convention rights grounds.

The challenge was unsuccessful in both the Outer House and the Inner House of the Court of Session (see [2010] CSOH 2, 2010 SLT 179 and [2011] CSIH 31, 2011 SLT 439, respectively). AXA’s appeal to the Supreme Court was likewise unsuccessful, a seven-strong panel of Justices ruling unanimously that the appeal should be dismissed. Substantive judgments were given by both the Scots on the panel: Lord Hope and Lord Reed. Lords Brown and Mance gave short concurring judgments, and Lords Kerr, Clarke and Dyson agreed with both Lords Hope and Reed. (Lord Reed is a Senator of the College of Justice — i.e., a judge of the Court of Session; he is one of two such judges to have sat in the Supreme Court since Lord Rodger (who died in June) was taken ill. Lord Rodger’s chair at the Court is formally vacant, but it has been advertised and it will no doubt be filled soon.)

Three issues of law arose on the appeal to the Supreme Court: (i) was the Act of 2009 violative of AXA’s Convention right to property under Article 1 of Protocol 1 to the ECHR (“A1P1”)? (ii) could an Act of the Scottish Parliament (“ASP”) be judicially reviewed under common law grounds of review and, if so, was the Act of 2009 irrational? (iii) did a number of individuals diagnosed with having pleural plaques have title and interest (i.e., standing) to be joined to the action as respondents?

The case is constitutionally significant for what the courts have said about the second issue. But before we get to that, let’s get the first and third issues out of the way.

A1P1

On the first issue the Supreme Court agreed with the Court of Session that the answer was no: A1P1 was engaged but it was not violated here. There was a legitimate aim for the interference with property, and the interference was proportionate. Property lawyers or other experts in property rights may have more to say about this, but the reasoning of the Supreme Court on this issue struck me as unremarkable.

Standing (of interest mainly to Scots lawyers)

On the issue of standing the Supreme Court changed Scots law. In England and Wales a party has standing to seek to judicial review if that party has “sufficient interest” in the matter. As we report at pp 712-3 of the book the courts in England and Wales have tended to interpret this requirement liberally and flexibly in recent years, such that it has become much rarer than it once was for parties to lose a case solely because they lack standing. In Scots law, by contrast, the test has been whether a party has “title and interest”. This test comes directly out of private law. It has tended to be applied rather strictly by the Scottish courts, so that there have been instances in recent years of claims falling at this hurdle in Scotland which would not have fallen at this hurdle in England and Wales (examples are given by Lord Hope at para 59 and by Lord Reed at para 166).

Both Lords Hope and Reed call time on all this and rule that the old phrase “title and interest” should no longer be applied in judicial review. The implication is that Scots law should more clearly and more closely resemble English law in this regard. Lord Reed goes so far as to suggest that “sufficient interest” should be the test in Scotland (para 171). Lord Hope says that a party should be required to show that he or she is “directly affected” (para 63). Whether this amounts to two ways of saying the same thing, or whether there is a difference of substance between Lord Hope’s formulation and that of Lord Reed is a matter that the Court of Session will no doubt have to address in the years to come.

Before we leave this point, it is worth noting that this is the second time this year that the Supreme Court has overturned an old and long-standing aspect of the Scots law of judicial review (the previous example was the overruling of Watt v Lord Advocate in Eba v Advocate General, on which see my posting of 29 July). In both instances the effect has been to further the harmonisation of the law north and south of the border; in both instances it is Scots law that is brought into line with English law, and not the other way around.

Judicial Review of Legislation (of interest to ALL UK lawyers)

And now to the heart of the case, from a constitutional point of view.

Section 29 of the Scotland Act 1998 provides that an Act of the Scottish Parliament (“ASP”) “is not law” if it is outside legislative competence or if it is incompatible with Convention rights or with EU law. The question posed in AXA was whether section 29 provides an exhaustive list of the grounds on which an ASP may be challenged in legal proceedings, or whether it is additionally possible to argue that an ASP may be unlawful on common law grounds of judicial review (i.e., illegality and irrationality, as defined by Lord Diplock in the GCHQ case). On the one hand the Scottish Parliament is a creature of statute with limited powers, just like many other public bodies whose actions and decisions are subject to judicial review. On the other hand, the Scottish Parliament is a Parliament, not an ordinary public body, it is democratically elected, and it has the power to make law, indeed to make Acts which, like Acts of the UK Parliament, require the Royal Assent before they come into force (see Scotland Act, s 28). Moreover, the legislative power of the Scottish Parliament includes the power to amend or repeal Acts of the UK Parliament, as long as this is within legislative competence. And, of course, Acts of the UK Parliament are not subject to common law judicial review on grounds of illegality or irrationality.

Or are they?

In AXA the Court of Session ruled that ASPs are potentially subject to judicial review on grounds of illegality or irrationality but only in the extreme circumstances that bad faith, improper motive or manifest absurdity could be shown (and no such thing could be shown here). This is the force of the Lord Ordinary’s opinion, as extracted at p 237 of the book; and the First Division of the Inner House agreed with this line.

The Supreme Court has taken a different approach. The key passages are paras 42-52 of Lord Hope’s judgment, and paras 135-54 of Lord Reed’s judgment. These passages repay close and careful attention. It is worth repeating that the other (English) Justices on the panel agreed with what Lords Hope and Reed said in these passages (with one (immaterial) qualification given by Lord Mance at para 97).

For Lord Hope, ASPs are in principle amenable to the supervisory jurisdiction of the Court of Session at common law (that is, they are in principle subject to judicial review) (para 47). Case law on the extent to which delegated legislation that has been approved by Parliament is subject to judicial review is of only limited help in the context of ASPs, according to Lord Hope: rather, he said, “we are in this case in uncharted territory” (para 48) and the issue therefore has to be addressed as one of principle. And while “the dominant characteristic of the Scottish Parliament is its firm rooting in the traditions of a universal democracy” (para 49), the “guiding principle”, for Lord Hope, was (as he had said in Jackson — see p 92 of the book) “the rule of law enforced by the courts”, this being “the ultimate controlling factor on which our constitution is based” (para 51).

Lord Hope states that, in the context of reviewing legislation, the courts should “intervene, if at all, only in the most exceptional circumstances” (para 49) but what is fascinating about his analysis of the circumstances in which the courts should intervene is that he does not seek to rely on the distinction between a sovereign Parliament (such as Westminster) and a non-sovereign Parliament (such as Holyrood). Rather, he emphasises what the UK and the Scottish Parliaments have in common. On the one hand they have in common “the depth and width of the experience of [their] elected members” (para 49), which is why judges should intervene only in extremis. But on the other hand they have in common “a government that enjoys a large majority” and whose party “dominates” (para 51), which is why the judges should reserve the right to intervene to quash legislation that, for example, sought to abolish judicial review or to “diminish the role of the courts in protecting the interests of the individual” (para 51). Lord Hope goes on: “Whether this is likely to happen is not the point. It is enough that it might conceivably do so. The rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise” (para 51). What is to be noted about this reasoning is that it is not expressed to apply solely to Acts of the Scottish Parliament. It is expressed to apply to legislation generally including, apparently, to Acts of the UK Parliament.

And, as anyone who watched the Home Secretary’s speech earlier this month to the Conservative Party conference well knows, at least some Ministers in the current UK Government are clearly contemplating legislation designed to “diminish the role of the courts in protecting the interests of the individual”. We all know that the Human Rights Act is under review and, indeed, under threat.

Now, having said all this, Lord Hope does make it clear that, as he understands the rule of law, it is in conflict with the sovereignty of the UK Parliament and he also makes it clear that in this case the Court does not have to resolve that conflict, because it is concerned with legislation of the Scottish Parliament, and not with an Act of the UK Parliament. So here “the rule of law does not have to compete with the principle of sovereignty” (para 51). Nonetheless, Lord Hope has offered a clear steer that in the event of any such future conflict, he may well side with the Lord Steyn view in Jackson and not with the Lord Bingham view.

In conclusion, Lord Hope ruled that ASPs are not subject to judicial review at common law on grounds of irrationality, unreasonableness or arbitrariness. But rather than qualifying this conclusion, as the Court of Session had done, by reference to bad faith etc, Lord Hope qualifies it by reference to his general conclusions as to the principle that the rule of law means that judges should not recognise as law any legislation that seeks to abolish judicial review or to diminish the role of the courts in protecting the rights of the individual.

Lord Reed did not roam as freely into the terrain of the sovereignty of (the UK) Parliament as did Lord Hope. He confined himself to the issues arising on the facts of the case more strictly. But on the core issue of the amenability of ASPs to common law judicial review, Lord Reed was in broad agreement with what Lord Hope said. Thus, he agreed that, within the scope of its competences, the Scottish Parliament has plenary law-making power (para 146); he agreed that competent ASPs do not have to be passed for specific purposes or with regard to any specific circumstances (para 147); he agreed that this distinguishes ASPs from the acts and decisions of ordinary public bodies and that the ordinary principles of judicial review (as regards proper purposes, relevant considerations, and the like) “generally have no purchase” as regards ASPs (para 147); but he also agreed that if an ASP “offended against fundamental rights or the rule of law” then such legislation ought to be subject to common law judicial review (para 149). According to Lord Reed, the Scotland Act 1998 was not passed in a vacuum: rather, Parliament “legislated for a liberal democracy founded on particular constitutional principles and traditions. That being so, Parliament cannot be taken to have intended to establish a body which was free to abrogate fundamental rights or to violate the rule of law” (para 153). There was no suggestion of that in this case, so the common law challenge failed.

 

 

 

 

 

 

Cart and Eba: the scope of judicial review clarified

This note updates references in the book to R (Cart) v Upper Tribunal and to Eba v Advocate General for Scotland. The book (p 711) deals with the decisions of the Administrative Court and of the Court of Appeal in Cart, and of the Court of Session in Eba. Both were appealed to the Supreme Court, whose decisions in the two cases neatly solve the problems that these important cases had thrown up.

The issue in the cases is the scope of judicial review as regards the Upper Tribunal (on the scope of judicial review, see pp 710-11 of the book; on the Upper Tribunal see p 711). As reported in the book, the Court of Appeal (in Cart) and the Court of Session (in Eba) had taken diametrically different views on this question, in each case explained (in part) by the different jurisdictional histories of judicial review in English law and in Scots law. The Court of Appeal ruled that unappealable decisions of the Upper Tribunal could be judicially reviewed only in exceptional circumstances; the Court of Session considered that the right to seek judicial review in Scots law could not be so restricted.

The Supreme Court was able to hear argument simultaneously in both the English and the Scottish appeals (unlike the lower courts, which could focus only on one jurisdiction). In its judgments in the cases the Supreme Court has tried to steer a middle path between the excessively restrictive views of the Court of Appeal and Administrative Court, on the one hand, and the more liberal view of the Court of Session, on the other. What is at stake here is the attempt to balance two important principles of public law: first, the rule of law and, secondly, the recognition by generalist courts that particular matters of public administration are better left expert tribunals. As Lady Hale summarised it at para 33 of Cart, two principles need to be reconciled: the relative autonomy which Parliament has invested in tribunals; and the constitutional role of the court as the guardian of legality and due process. The rule of law would suggest that judicial review should not be restricted, but the principle that the expertise of tribunals should not be undermined would suggest that judicial review should be limited. The Supreme Court considered that the Court of Appeal had shown too much regard for tribunals’ autonomy and too little for the rule of law; and that the Court of Session had veered too far in the opposite direction.

The middle path unanimously adopted by the Supreme Court in both Cart and Eba avowedly aligns the availability (or scope) of judicial review in this context with statutory criteria governing the availability of appeals. Thus, judicial review will be available in respect of an otherwise unappealable decision of the Upper Tribunal either where the appeal raises an important point of principle or practice, or where there is some other compelling reason. Lady Hale said this of the path the Supreme Court was adopting:

It would recognise that the new and in many ways enhanced tribunal structure deserves a more restrained approach to judicial review than has previously been the case, while ensuring that important errors can still be corrected. It is a test which the courts are now very used to applying. It is capable of encompassing both the important point of principle affecting large numbers of similar claims and the compelling reasons presented by the extremity of the consequences for the individual.

Agreeing with Lady Hale, Lord Dyson added the following remark:

the scope of judicial review should be no more (as well as no less) than is proportionate and necessary for the maintaining of the rule of law … In my view … unrestricted judicial review of unappealable decisions of the [Upper Tribunal] is neither proportionate nor necessary for maintaining the rule of law.

The judgment of the Supreme Court in Eba was given by Lord Hope, who ruled that the approach set out by Lady Hale and Lord Dyson in Cart should be adopted also in Scotland, reminding the Court of Session that it “should be slow to interfere with decisions that lie within the expertise of specialist tribunals” (para 47).

There are two further points to note about Cart and Eba. The first is that the Supreme Court accepted that there was no attempt to oust the jurisdiction of the court in the Tribunals, Courts and Enforcement Act 2007, the legislation that had created the Upper Tribunal (ouster of judicial review is considered at p 714 of the book).

The second point, important for Scots lawyers, is to note that Watt v Lord Advocate was overturned by the Supreme Court in Eba. Watt v Lord Advocate is cited at p 669 of the book as authority for the proposition that the old distinction between intra vires and ultra vires errors of law continued to be important in Scotland long after it had been abandoned in England (owing to Anisminic). Lord Hope in Eba ruled (at para 34) that “the time has come for it to be declared that … Watt v Lord Advocate is incompatible with what was decided in Anisminic” and that “there is, in principle, no difference between the law of England and Scots law as to the substantive grounds on which a decision by a tribunal acts within its jurisdiction may be open to review”.

The Supreme Court did terrific work in Cart and Eba, proving its great value as a United Kingdom court. It took a hard look at both English and Scots law and made them (1) compatible with one another when they had threatened to grow apart in a way that would have generated significant problems, and (2) better. The result achieved by the Supreme Court is an improvement on what both the Court of Appeal and the Court of Session had ruled.

Take note, Mr Salmond?

On page proofs, and two cases that didn’t make the cut

We delivered the typescript of the 7th edn to the publishers at the very end of February 2011. We received the page proofs in late May. Correcting the proofs is the last chance authors have of making changes to the text as published. Publishers quite understandably seek to limit the extent of authorial changes permitted at this (late) stage. We were able to add new information where is was essential to do so, and a lot happened between late February and early June, including:

• the Welsh referendum on enhanced legislative powers for the Assembly
• the UK referendum on not moving from first-past-the-post to AV
• the astonishing success of the SNP in the May 2011 Scottish parliamentary elections, a result that could have extraordinary consequences for the future of the British constitution and, at the least, has consequences for the passage of the Scotland Bill, which is about to finish its Commons stages and commence its Lords stages
• as well as the Scotland Bill, other legislation with constitutional implications making its way through Westminster includes the European Union Bill, the Public Bodies Bill, the Localism Bill and the Fixed-term Parliaments Bill
• and, of course, the courts remain busy. Important decisions were handed down in the months of March-June 2011 in a range of fields covered in the book, including R (Moos and McClure) v Metropolitan Police Cmr [2011] EWHC 957 (Admin) on police powers, public protest, and “kettling”; and Walumba Lumba v Secretary of State for the Home Department [2011] UKSC 12 on secret policies, transparency and the rule of law

References to all of these developments were added at proof and will appear in the book as published later this summer. In addition, a separate and longer note on the extremely important decision of the Supreme Court in Walumba Lumba will appear on this site soon.

In addition, two decisions that did not make it into the book, but which are nonetheless important, are R (Shoesmith) v OFSTED and others [2011] EWCA Civ 642 and R (Evans) v Lord Chancellor [2011] EWHC 1146 (Admin). A word on each here.

Shoesmith you may have read about in the papers. Sharon Shoesmith was suspended as Director of Children’s Services at Haringey in 2008 amid a media furore over the death in 2007 of “Baby P”. She sought judicial review of the decision to suspend her, arguing that it had been unlawfully made on the ground that she had not been afforded a fair hearing. OFSTED had been called in to conduct an investigation. Following its (critical) report the Secretary of State (Mr Ed Balls) exercised his statutory powers to direct that an alternative individual be appointed Director of Children’s Services at Haringey; he then gave a press conference at which he announced that Haringey would be considering its employment relationship with Ms Shoesmith’ “immediately”. Later that day Haringey suspended her. The Court of Appeal ruled that while OFSTED had not acted unfairly in conducting its investigation under very difficult circumstances, the Secretary of State and the local authority (Haringey) had acted unfairly. Ms Shoesmith had been “summarily scapegoated”, said Maurice Kay LJ (at [135]) and, even if she was not blameless, she was entitled to be treated lawfully. Like the earlier case of Venables and Thompson (R v Secretary of State for the Home Department, ex parte Venables [1998] AC 407), the case raises the difficult issue of how a politically accountable decision-maker such as Mr Balls is to act in the face of a media frenzy that included, in this instance, a petition organised by the Sun newspaper that Ms Shoesmith should be sacked. Not to act as he did would have led to an immediate outcry in the press and, no doubt, also in Parliament. But in acting as he did, he behaved unlawfully. A troubling instance of the Government’s political and democratic accountability clashing with its obligation to abide by the due process of law. (Shoesmith can be read alongside other cases on procedural fairness considered in chapter 10.)

Evans is an interesting case that touches on an important aspect of the rule of law (see chapter 2). Ms Evans is a civil liberties campaigner and peace activist. She has brought important legal proceedings against the Ministry of Defence (MOD), proceedings that raise disturbing questions of the UK’s complicity in the torture and inhuman treatment of detainees in Afghanistan (the matter is considered in the 7th edn of the book). The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke) sought to change the rules governing legal aid, such that public interest cases would cease to be funded other than in environmental cases. This would bring an end to the legal aid received (for example) by Ms Evans. It turned out that the initiative behind the change in the legal aid rules had come not from the Ministry of Justice but from the MOD, who saw the move as a means by which the Government could avoid an adverse result in litigation claimed to raise implications for defence and security. The Divisional Court had no difficulty in ruling that this was an irrelevant consideration (see chapter 10) and that the rule change was therefore unlawful. (This does not mean that the Government is necessarily compelled to fund such litigation: only that in ceasing to fund such litigation the Government must rely only on relevant considerations.) At para 25 of its judgment the Court ruled as follows:

“For the State to inhibit litigation by the denial of legal aid because the court’s judgment might be unwelcome or apparently damaging would constitute an attempt to influence the incidence of judicial decisions in the interests of government. It would therefore frankly be inimical to the rule of law.”

You can read the full judgments here (Shoesmith) and here (Evans).