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

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. 

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

National Security Case Law: A Continuing Trend

On 17 January 2012 the European Court of Human Rights (ECtHR) handed down its judgment in Othman (Abu Qatada) v UK. In a unanimous ruling the Court held that the UK could not lawfully deport Abu Qatada to his native Jordan, overturning the House of Lords (who had unanimously come to the opposite conclusion in RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2010] 2 AC 110, noted briefly at p 788 of the book). The House of Lords had themselves overruled the Court of Appeal; and the Court of Appeal had overruled the Special Immigration Appeals Commission (SIAC). Thus, the Court of Appeal and the ECtHR ruled in Abu Qatada’s favour; whereas SIAC and the House of Lords ruled against him. As all of this suggests, the matter of law at the heart of the case is not an easy one.

The issue is this: under what circumstances may a state that is bound by the European Convention on Human Rights (ECHR) be required not to deport an individual to a country that is not bound by the ECHR where the individual concerned will face a trial that would fall short of the standards set by Article 6 (the right to a fair trial)? The ECtHR has ruled before that, as a possibility, there may be such circumstances but until its decision this week it had never found them to exist in fact. (Indeed, the ECtHR first identified the principle at issue here in Soering v UK in 1989, but in the 22 years following that judgment the Court had not once found that an expulsion would be in violation of Article 6.)

Abu Qatada has been convicted twice in Jordan, both times in his absence, for various serious terrorist offences. He alleges that part of the evidence against him had been obtained under torture. The UK sought nonetheless to deport Abu Qatada to Jordan, having first agreed a Memorandum of Understanding with the Jordanian authorities that Abu Qatada himself would not be subjected to treatment contrary to Article 3 ECHR (thus complying with the well-known principle in Chahal v UK: see p 780 of the book, and see further Tooze [2010] PL 362).

In RB (Algeria) the House of Lords recognised that ECtHR authorities suggested that a deportation would not be lawful where the deportee would face in the receiving country a trial that amounted to a “flagrant denial of justice”, or a “flagrant breach of Article 6” or, as the Court of Appeal had put it, a “complete denial or nullification of the Convention right”. Their Lordships also recognised that the Jordanian proceedings to which Abu Qatada would be subject would be unlikely to meet the standards of Article 6. They ruled, however, that the departures from those Article 6 standards would not be so serious as to satisfy the tests of flagrant denial. The Court of Appeal had ruled that, for Abu Qatada’s deportation to be lawful, a “high degree of assurance” would be required that evidence obtained by torture would not be used in the proceedings. For the House of Lords, this was setting the bar too high. Lord Phillips ruled, for example, that the principle that the state must stand firm against permitting the use of evidence obtained under torture “applies to the state in which an attempt is made to adduce such evidence” but “it does not require this state, the United Kingdom, to retain in this country to the detriment of national security a terrorist suspect …” (para 153; see to similar effect Lord Hoffmann at paras 197-201).

In its judgment in Abu Qatada the ECtHR first clarified the test (“flagrant denial of justice”) and then, for the first time, applied it in favour of an applicant. As to the former the Court said this (paras 260-1):

A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article.

In assessing whether this test has been met, the Court considers that the same standard and burden of proof should apply as in Article 3 expulsion cases [such as Chahal]. Therefore, it is for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if he is removed from a Contracting State, he would be exposed to a real risk of being subject to a flagrant denial of justice. Where such evidence is adduced, it is for the Government to dispel any doubts about it.

Applying this test to the facts of the case, the Court ruled as follows (paras 263-7):

The central issue in the present case is the real risk that evidence obtained by torture of third persons will be admitted at the applicant’s retrial … Gäfgen v Germany (2010) reflects the clear, constant and unequivocal position of this Court in respect of torture evidence. It confirms [that] … in the Convention system, the prohibition against the use of evidence obtained by torture is fundamental …

The Court considers that the admission of torture evidence is manifestly contrary … to … Article 6 … It would make the whole trial not only immoral and illegal, but also entirely unreliable in its outcome. It would, therefore, be a flagrant denial of justice if such evidence were admitted in a criminal trial.

That there was a real risk that if he was deported to Jordan Abu Qatada would face a trial at which evidence obtained by torture would be used therefore meant that it would be contrary to Article 6 ECHR for the UK to deport him.

The UK now has three months to decide whether to refer this judgment to the Grand Chamber.

Two comments fall to be made about this decision.

The first is: where does this case leave their Lordships’ controversial ruling in A (No 2) (see p 747 of the book)? Recall that in this case the House of Lords had strongly condemned the use of torture evidence but that by a 4:3 majority the Law Lords decided that such evidence should be excluded only if it was established, on a balance of probabilities, that it was obtained by torture. Recall further that the three Law Lords in the minority on this point were scathing about it (see p 747). (A (No 2) is a judgment based on the common law; not on Convention rights.) In Othman (Abu Qatada) v UK the ECtHR commented on this question, saying the following (para 274):

The Court does not consider that the balance of probabilities test, as applied by the majority of the House of Lords in A (No 2), is appropriate in this context. That case concerned proceedings before SIAC to determine whether the Secretary of State’s suspicions that an individual was involved in terrorism were correct. Those proceedings were very different from criminal proceedings where, as in the present case, a defendant might face a very long sentence of imprisonment if convicted. In any event, the majority of the House of Lords in A (No 2) found that the balance of probabilities test was for SIAC itself to apply: an appellant before SIAC had only to raise a plausible reason that evidence might have been obtained by torture. Therefore, the Court does not regard A (No 2) as authority for the general proposition that, subject to a balance of probabilities test, evidence alleged to have been obtained by torture would be admissible in legal proceedings in the United Kingdom, least of all in criminal proceedings.

With respect, not all of this reasoning is persuasive. In at least one sense, the SIAC proceedings in A and in A (No 2) were not so different from criminal proceedings where a defendant may face a long term of imprisonment: after all those SIAC proceedings were concerned with a scheme of indefinite detention without trial (under the Anti-terrorism, Crime and Security Act 2001, s 23). Abu Qatada himself, of course, was one of the claimants in A (No 2): he was one of the men subjected to the internment regime that was impugned by the House of Lords in its famous Belmarsh judgment. Further, it is not clear that the ECtHR has correctly understood the application of the balance of probabilities test in A (No 2). In RB (Algeria) Lord Hoffmann noted (at para 202) that the effect of the Court of Appeal’s decision in Abu Qatada’s case was that the Jordanian court would be perpetrating a flagrant denial of justice if it did not exclude evidence which would be admissible before SIAC! Thus, it may well be that, on analysis, the decision of the ECtHR in Abu Qatada does a great deal more damage to the House of Lords’ approach to the admissibility of torture evidence in A (No 2) than the Strasbourg court was prepared to admit. If I am right about that, hurrah for Strasbourg.

The second comment to make about Othman (Abu Qatada) v UK is hinted at in my title: this is but the latest decision of the Strasbourg court in a national security case from the UK in which the ECtHR has overturned the House of Lords: MB was effectively overturned in A v UK (as their Lordships recognised in AF (No 3)); Gillan was next; then Al Skeini and Al Jedda; and now Abu Qatada. This is quite a list. It makes for sobering reading for anyone who thinks that human rights are safe in the UK, even in our highest courts. Strasbourg may still get it badly wrong from time to time, but my word do we still need it. Strasbourg was right, and the House of Lords wrong, in all five of these national security cases.

National Security Case Law: A Continuing Trend