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.



This month in the constitution