All posts by Mark Elliott

About Mark Elliott

Mark Elliott is Professor of Public Law at the University of Cambridge, a Fellow of St Catharine's College, Cambridge, and Legal Adviser to the House of Lords Constitution Committee. All views on this blog are expressed in a purely personal capacity.

This site will stop working soon … start following Public Law for Everyone

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As I explained in this post, I am no longer maintaining this blog. That’s because it has evolved into a new blog: Public Law for Everyone. The intended readership of the new blog is not limited to – but it certainly includes – those who may be thinking about studying Law at university. If you are in that position, then this post – linking to some videos I have recorded introducing the subject of Public Law – may be of particular interest. You will also find a resources section on Public Law for Everyone aimed at those who are thinking of studying Law. In addition, all of the content from Applying for Law has been copied across to the new blog.

The Applying for Law blog will become inactive (and I think inaccessible) shortly. If you are following it by email, you may therefore want to begin to follow Public Law for Everyone instead. You can sign up so that new posts are automatically emailed to you (via the “sign up for email updates” box on the right-hand side). In addition, or instead, you can follow me on Twitter.

Thanks for reading Applying for Law. I hope you will also find my new blog of interest.

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Public law for everyone: A new name (and home) for my blog

When I first started writing this blog last year, I was brand new to blogging (and to Twitter: which I joined simply in order to be able to tweet links to blog posts). Since then, the blog – along with my (still limited) grasp of this part of the online world – has evolved. In particular, I have come to realise that blogging and Twitter are increasingly important ways in which academics can engage with one another, with students, and with the wider world.

The original intention behind my blog was to open up the world of Law – and academic Law in particular – to people who are thinking of applying to study Law at university. I still think that that is important, and that will remain part of what I try to do via my blog. But I now also appreciate that blogging has a real role to play in relation to my academic work, including as a means by which to float ideas at an early stage and to offer commentary on current events.

So I am retiring “applying for law”. The new version of the blog is called “Public law for everyone”. The new name reflects the facts that the focus will be on my key area of academic interest – public law – and I that I will be writing on that topic in ways that will, I hope, be accessible and of interest a range of people. Some posts will continue to be aimed at the uninitiated, such as prospective Law students. Other posts will be more specialised or technical in nature, and as such will be aimed at other public lawyers and law students. As with the original incarnation of this blog, the new iteration will remain a work-in-progress, and will no doubt continue to evolve. 

The old URL (http://applyingforlaw.org) will continue to work for a while. The new address is http://publiclawforeveryone.wordpress.com

Sumption v Virgo debate: Should prospective lawyers study Law at university?

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Professor Graham Virgo (left); Lord Sumption (right)

This week, the Law Faculty at Cambridge University will host a debate between Lord Sumption, a Justice of the Supreme Court, and Graham Virgo, who is a Professor at the Faculty here. The debate was sparked by remarks made by Sumption last year. He is reported to have said:

I think that it is best not to read law as an undergraduate … The problem is that we have a generation of lawyers, and this applies to solicitors as well as barristers, who are coming into the profession with much less in the way of general culture than their predecessors. It is very unfortunate, for example, that many of them cannot speak or read a single language other than their own …

Most arguments which pretend to be about law are actually arguments about the correct analysis and categorisation of the facts. Once you’re understood them it’s usually obvious what the answer is. The difficulty then becomes to reason your way in a respectable way towards it. That’s why the study of something involving the analysis of evidence, like history or classics, or the study of a subject which comes close to pure logic, like mathematics, is at least as valuable a preparation for legal practice as the study of law. 

Appreciating how to fit legal principles to particular facts is a real skill. Understanding the social or business background to legal problems is essential. I’m not sure current law degrees train you for that, nor really are they designed to. This is not a criticism of the course. It’s simply a recognition of the fact that a command of reasoning skills, an ability to understand and use evidence, and broad literary culture are all tremendously valuable to any advocate. If you don’t have them you are going to find it difficult to practise. If you don’t know any law that is not a problem; you can find out.

It is unclear (from these reported remarks) why Sumption does not think that studying Law teaches “command of reasoning skills” or an “ability to understand and use evidence”. Nor is it clear why Sumption thinks that those who study Law lack an awareness of broader, cultural issues. Perhaps he assumes – mistakenly – that Law students spend their time locked away reading dusty tomes. The reality, of course, is that all university student specialise – and that with specialisation comes a focus on some things and not on others. But this rather misses one of the fundamental points of a university education: namely, that students do not spend their whole time engaging only with their own subject. One of the great strengths of studying at university is the opportunity to engage – through extra-curricular activities, public lectures, debates, and simply interacting with a cross-section of students – with a broad range of academic and other disciplines. To suppose, therefore, that Law students know nothing beyond the Law suggests a very narrow view of the nature and purpose of university study.

If accepted, then the argument set out above helps to establish that studying Law is not a bad thing, in that it does not preclude awareness of and engagement with the broader cultural matters that are of concern to Sumption. But is studying Law at university a positively good thing? Sumption appears to believe that ignorance of the Law (as opposed, say, to ignorance of “broad literary culture”) is unproblematic. Not knowing “any law”, he says, creates no difficulty – because “you can find it out”. The implicit suggestion is that Law is, in some sense, a straightforward matter that can simply be ascertained by consulting a book: and that students need not spend three years at university learning things that they could just as easily pick up as and when they need to.

Yet by adopting this stance, Sumption appears to fail to appreciate the nature of Law as an academic subject as it is taught in universities. One of the first things that Law students at Cambridge (and doubtless elsewhere) are told is that learning the Law is not simply about picking up and memorising factual information about the applicable rules. Rather, learning the Law – and learning to be and to think as a lawyer – is, in part, about appreciating that not all legal questions have clear-cut answers; that the meaning of a statutory text or a judicial decision may vary depending upon the perspective from which the matter is viewed; and that underlying the technical rules with which all lawyers have to grapple is a deeper layer of issues that engage such realms as morality, philosophy and politics.

Does this mean that people who have studied Law as a degree subject become better lawyers? Perhaps; although there are many excellent lawyers who did not study Law at university (Sumption being one of them). But what it clearly does mean is that Law, studied as an academic subject at university, is a rich and fascinating subject: and that even if Law can, at some level, be picked up in the way Sumption suggests, studying Law at university has far, far more to offer than a grasp of dry, technical rules.

In this week’s Cambridge Law Faculty debate, Sumption will defend the proposition: “Those Who Wish to Practise Law Should Not Study Law at University”. Virgo will oppose. For a foretaste of Virgo’s arguments, take a look at the two videos below, in which he argues that prospective lawyers should study Law, and that a Law degree also has a great deal to offer people who intend to work in other sectors. If you want to attend the debate, you will find more information about it here.

Law in Focus video: The Defects of Jury Trials

In this video – part of the Cambridge Law Faculty’s Law in Focus series – Professor John Spencer discusses difficulties relating to the system of trial by jury and suggests ways in which the delivery of justice might be improved. Professor Spencer’s talk was prompted by the discharge of the jury in the Vicky Pryce case, on which see this post

A Damp Squib in the Long Grass: The Report of the Commission on a Bill of Rights

Long grass: which is where the report of the Bill of Rights Commission is likely to end up
Long grass: which is where the report of the Bill of Rights Commission is likely to end up

In December 2012, the Report of the Commission on a Bill of Rights was published. The Commission was established by the Coalition Government to consider how human rights should be protected in UK law – and, in particular, whether the Human Rights Act 1998 should be repealed and replaced with a new UK Bill of Rights. The Report was somewhat underwhelming – not least because the Commission was so divided. As a result, very little by way of real consensus as to the way forward emerged from the Report.

Shortly after the publication of the Report, I posted a piece entitled “Ten things you wanted to know about the Bill of Rights Commission’s report but were afraid to ask”. I have now finished writing a longer article, entitled “A Damp Squib in the Long Grass: The Report of the Commission on a Bill of Rights”. The abstract of the article, which gives an idea of its scope and of the view I take of the Commission’s Report, is as follows:

In December 2012, the Commission on a Bill of Rights, established by the UK Government, issued its final report. The Report advances very limited, inchoate proposals for a UK Bill of Rights that are essentially superficial in nature. The Report fails to grapple with the fundamental questions that would naturally fall to be confronted as part of a serious debate about the future direction of human rights protection in the UK. The failure of the majority clearly to articulate what it understands a Bill of Rights to be renders vacuous its recommendation that such legislation be adopted in due course. While the proposals contained in the Report are highly unlikely to be implemented in the foreseeable future, the shortcomings of the Report – and of the process that yielded it – contain important lessons for how future debates of this nature ought to be conducted.

The article will be published in the second issue of the 2013 volume of the European Human Rights Law Review. However, the text of a near-final draft of the article can be read here.

The Vicky Pryce case and trial by jury: some resources

Vicky PryceThere is a great deal of discussion in the media today about the merits or otherwise of trial by jury, following the dismissal of the jury in the Vicky Pryce case. A new trial will take place next week. Vicky Pryce, the ex-wife of ex-Cabinet Minister Chris Huhne, was being tried for perverting the course of justice: it is alleged that she accepted penalty points (for speeding) that ought to have been added to Huhne’s driving licence. Huhne pleaded guilty to perverting the course of justice, but Pryce is pleading “marital coercion” in her own defence.

Yesterday, the trial judge, Mr Justice Sweeney, discharged the jury in the light of a series of questions that the jury put to him. For example, the jury asked: “Can a juror come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it, either from the prosecution or defence?” Explaining his decision to discharge the jury, the judge said:

“I don’t ever recollect getting to this stage in any trial, even in far more complicated trials than this one, and, after two days of deliberations, a list of questions of this very basic kind illustrating that at least some jurors do not seem to have grasped it … This is not jury misconduct, this is not irregularity, this is a jury which has not, it appears, understood its function.”

Of course, it is entirely possible that many of the jurors understood their role perfectly—and that the questions were manifestations of a disagreement between jurors. Nevertheless, the case inevitably places trial by jury under the microscope. Yet much of the discussion of juries in the media today is pretty superficial and poorly informed. You might therefore want to find out more about how juries work in order to arrive at your own, informed view about the merits of the system.

The UK Criminal Law Blog has a series of posts on jury basics, covering topics including what juries do, how juries are selected, how juries decide cases, and whether juries should have to give reasons. At the moment, juries do not have to—and in fact must not—give reasons. An obvious difficulty this poses is that it makes it impossible to ascertain whether a jury has decided a case on the basis of irrelevant matters or faulty reasoning—which, it has been noted, makes it hard to conduct research into the reliability of juries’ verdicts. Against this background, Ben Fitzpatrick, an academic at York Law School, suggests that there are good arguments in favour of requiring juries to give reasoned verdicts. His blog post is well worth reading. Something that particularly struck me was his suggestion that:

“the trial involves citizens calling one of their number to account, and asking for an explanation from that individual for their behaviour. It seems to me that a basic duty of reciprocity (as well as the need to retain what Duff refers to as ‘moral standing’), would require those who do the calling to account, to give an account of their own decision-making.”

I have argued elsewhere that public authorities should be legally obliged to give reasons for their decisions. It seems to me that at least some of the arguments in favour of public authorities doing so can be applied to juries—not least because juries, when determining criminal liability, are wielding the coercive power of the state in a particularly acute form.

Finally, for a longer read, try this article by Fergal Davis of the University of New South Wales. He argues that trial by jury plays an important political, democratic role: “Public involvement in the process of determining guilt or innocence has the potential to increase transparency and legitimacy in the criminal justice system.” He goes on to say: “In the context of the criminal trial, the body that issues the verdict must represent the population and have a mandate. While a non-jury court may fulfil both criteria, the jury is more likely to appear to have both representative capacity and mandate because of its make-up.”

A human rights reality check for the Home Secretary

Theresa May

In this week’s Mail on Sunday, the Home Secretary, Theresa May, published an article strongly criticising judges for allowing some foreign criminals to remain in the UK on human rights grounds, contrary (as she sees it) to instructions that Parliament issued to judges about how such cases should be decided. In her article, the Theresa May says that because judges have (she thinks) ignored those instructions, they should now be enshrined in primary legislation – an Act of Parliament. This, she says, will give the judges no choice but to do as they are told: because Parliament is sovereign, argues May, it can make whatever laws it wishes, including laws that require judges to decide cases in a way that is incompatible with fundamental human rights.

In this post on the UK Human Rights Blog, I respond to the Home Secretary’s article. I argue that her position is symptomatic of a broader malaise in public discourse concerning human rights. First, by assuming that Parliament is free to enact such legislation she fails fully to acknowledge that the UK is bound in international law by human rights obligations, such as those found in the European Convention on Human Rights. And, second, the Home Secretary assumes that there is necessarily a tension between judicial enforcement of human rights and respect for democracy; in adopting this position, she implicitly assumes a particular, and arguably inadequate, view of the nature of democracy.

The post is (I hope) written in a way that will be accessible to non-lawyers as well as lawyers. But there is one point that perhaps requires explanation. Towards the end of the post, I refer to the “margin of appreciation”. This principle was developed by the European Court of Human Rights in the case of Handyside v UKIt recognises that it will sometimes be appropriate for the Court to give a degree of latitude to individual States when it comes to deciding whether it is acceptable to limit an individual’s right in order to achieve some conflicting public interest. (In Handyside, the balance that fell to be struck was between the individual’s right to freedom of expression and the State’s wish to restrict access to certain forms of pornography in the interests, as it saw it, of public morality.) However, the point I make in my post is that there are limits to this. Where appropriate, the European Court will attach a degree of respect to the State’s view about whether restricting a right is necessary in the public interest: but this does not mean that States have an entirely free hand. The basic point, then, is that the legislation envisaged by the Home Secretary might well (indeed, almost certainly would) fall outside the UK’s margin of appreciation, thereby making it unlawful under the European Convention on Human Rights.

Belmarsh and the UK constitution #2: The House of Lords’ judgment

This is the second in a series of three posts on the Belmarsh Prison case. The posts originate from some videos that I have been recording for the Cambridge Law Faculty’s new admissions website. In the videos, I aim to introduce some fundamental ideas about the nature of UK constitutional law using the decision in Belmarsh as a case study. The first post, setting out the background to the case, can be found here. In this second post, I examine the judgment of the Appellate Committee of the House of Lords.  

The Belmarsh Prison case was looked at at several levels of the court system: the Special Immigration Appeals Commission, the Court of Appeal, the Appellate Committee of the House of Lords, and the European Court of Human Rights. I want to focus on the decision of only one of those courts: the Appellate Committee of the House of Lords. (The Belmarsh case was decided in 2004, well before the judicial functions of the House of Lords were transferred to what is now the United Kingdom Supreme Court. At that time, then, the Appellate Committee of the House of Lords was the UK’s apex court – that is, its highest court – albeit that beyond the UK, further claims could, as they still can, be brought in the European Court of Human Rights.)

Article 15 of the European Convention on Human Rights

What, then, was the issue that the House of Lords had to resolve in the Belmarsh case? The Government argued that the foreign terror suspects’ right to liberty could, in effect, be suspended – and suspended lawfully – because the “get-out” clause in the European Convention on Human Rights, Article 15, applied. The key question was whether that was the case. Could the right to liberty – which is normally protected by Article 5 of the European Convention – be suspended by using Article 15, thereby avoiding any incompatibility between the Convention and the legislation – the Anti-terrorism, Crime and Security Act 2001 – providing for the detention of the suspects?

Article 15 does not allow Governments to suspend human rights just because they feel like it. Quite the reverse. Preventing people from exercising their fundamental rights is a very serious step – and Article 15 rightly sets out some very strict conditions that have to be met before that step can be taken. So, what are those conditions? First, there has to be a “war or other public emergency threatening the life of the nation”. Second, if there is, then a State – like the UK – can “derogate“ from the Convention “to the extent strictly required by the exigencies of the situation”. In other words, human rights can be suspended as long as there is a war or emergency, but only to the extent that the suspension of human rights is made strictly necessary by the nature and severity of that emergency.

Was there a “war” or “public emergency threatening the life of the nation”?

So, in Belmarsh, the House of Lords had to decide whether those two conditions were met. First, then, was there a “war” or a “public emergency threatening the life of the nation”? Of the nine judges – or Law Lords, as House of Lords judges were known – who decided the Belmarsh case, eight thought that there was. None of those eight thought there was a “war” – notwithstanding the rhetoric of the “war on terror”. But eight Law Lords were prepared to accept the Government’s argument that the 9/11 attacks amounted to evidence of a global terror threat that was sufficiently likely to affect the UK – and, if it did, sufficiently likely to be sufficiently catastrophic – as to amount to a “public emergency threatening the life of the nation”.

One of the nine Law Lords, however, did not think there was a war or a public emergency. Lord Hoffmann argued that the others had misunderstood what Article 15 of the Convention means when it refers to an emergency that threatens “the life of the nation”. He agreed that Al-Qaeda might well have been a threat to the lives of individual people. But, he went on: “Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.”

This disagreement between Lord Hoffmann and the other eight judges reflects more than a dry, technical difference of opinion about the precise meaning of Article 15 of the Convention. Rather, Lord Hoffmann’s position was informed by his view about just how fundamental human rights are, and, therefore, about how easily they should give way to other considerations (such as a terror threat). Of course, this does not mean that the other Law Lords thought human rights were unimportant. Far from it. But they did disagree about the relative importance of individuals’ rights, on the one hand, and extent to – and circumstances in – which those rights should be capable of being sacrificed, or at least qualified, in order to secure other interests.

Was indefinite detention without trial necessary?

What about the second question, then? Was indefinite detention without charge or trial a necessary response to the “emergency” that the majority was prepared to acknowledge? The eight judges who thought there was a public emergency had to go on to decide whether the nature and seriousness of the emergency was sufficient to justify the particular step that had been taken – that is, indefinitely detaining foreign terror suspects without charge or trial. Seven of the eight judges said it was not. The Government had failed to show that such drastic steps were necessary. In particular, the Government had failed to show that lesser steps – such as surveillance, monitoring, and electronic tagging of suspects – would not have sufficed.

And, crucially, the Government had not adequately shown why the detention regime applied only to foreign terror suspects. As Lady Hale, one of the judges, pointed out, the logical inference was that some other – less drastic – way had been found of managing the threat posed by British suspects. And if it was not necessary to detain British suspects, it was hard to see why it was necessary to detain foreign – but equivalently dangerous – foreign suspects. The majority therefore concluded that the extra-judicial detention of foreign terror suspects had not been shown to be a necessary response to public emergency evidenced by the 9/11 attacks. It followed that the conditions for derogation set out in Article 15 of the Convention were not met – and that detainees’ right to liberty, under Article 5, remained in effect. And of course the provisions in the Anti-terrorism Act allowing for detention without trial were plainly inconsistent with that right.

The Human Rights Act 1998

To many people, the House of Lords’ conclusion in Belmarsh came as a real surprise. Not because the Government’s argument wasn’t weak – it clearly was. But because the court was prepared to recognise that weakness and condemn the Government’s position.Why was this surprising? Because previously, courts had almost invariably been extremely deferential to the Government on matters of national security. In other words, they had been generally unwilling to second-guess the Government when it asserted that some step or other had to be taken in order to uphold national security. And yet in the Belmarsh case, the House of Lords adopted quite a different approach.

The explanation (or at least a large part of it) for that change in attitude lies in the Human Rights Act 1998. That Act equips – indeed, requires – the courts to examine Government decisions and Acts of Parliament for compliance with human rights standards. And where the courts find that those standards have not been met, the Act entitles them to say as much. So when, in the Belmarsh case, the Government argued that the court should (in effect) mind its own business, and leave the Government to get on with protecting national security, the court had a clear and straightforward response. Things had changed. As Lord Bingham put it, the Human Rights Act “gives the courts a very specific, wholly democratic, mandate” to uphold human rights. In other words, courts will no longer accede to the argument that national security is none of their business – at least not when human rights are at stake. The Human Rights Act makes this the courts’ business.

Here, then, we see a shifting in the tectonic plates of the constitution, as power shifts from Parliament and the Government, on the one hand, to the courts, on the other. And that change in the bigger picture has profound consequences for ordinary people like the Belmarsh detainees. They found themselves, for the first time, able to challenge the balance struck by Parliament between the rights of individuals and the perceived interests of wider society. That, in turn, carves out a new role for law and for courts as a means of calling into question the choices that politicians have made, and raises some fundamental questions about the sort of constitution we have today.

In the third and final post, I will explain what the consequences of the Belmarsh judgment were, bearing in mind the fact that the UK Parliament is “sovereign”, meaning that, as a matter of domestic law, there is no limit upon the legislation it can enact. We will see that although this prevented the court from invalidating the legislation under which the detainees were held, the court was able to take steps that ultimately precipitated the repeal of that legislation. 

Belmarsh and the UK constitution #1: Setting the scene

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I have been recording some short videos for the new admissions website that we are developing at the Cambridge Law Faculty. In the videos, I discuss the Belmarsh Prison case, decided by the Appellate Committee of the House of Lords in 2004. Belmarsh is one of the most significant public law decisions of recent years, and (I think) it provides an accessible and interesting way of starting to understand how the UK’s constitution works. I will post the videos in due course. In the meantime, however, I’ll be posting the text of these mini-lectures over the next week or two. This is the first instalment (of three). 

Public law

People often assume that public law – constitutional law – is about very big picture questions. How are laws made? How does devolution work? What is the UK’s legal relationship with the European Union? Public law is about those things. But it is also about how that big picture relates to – and impacts upon, sometimes in very stark ways – real people.

Sometimes those people are marginalised and unpopular. And the question arises whether the majority in society are – and should be – free to treat such people as they wish. Or does – should – law prevent the majority from advancing their own interests at the expense of the weaker and the more vulnerable? Those are the questions that lie at the heart of the Belmarsh Prison case – more formally known as A v Secretary of State for the Home Department

Our story begins, however, thousands of miles from Belmarsh Prison in London. It begins in the north-eastern United States. As everyone knows, events in that part of the world on September 11th 2001 – and, most iconcally, at the World Trade Center in New York – changed the course of recent history. The fall of the Twin Towers precipated the decade long war in Afghanistan, and, only slightly less directly, the war in Iraq.

The events of 9/11 also gave rise to a climate of fear unparalleled in comfortable, secure Western societies in recent decades. That was certainly the case in the UK. As a key strategic ally of the United States, it was perfectly reasonable to suppose that if Al-Qaeda could strike in Washington DC and New York City, then London might be next.

The Anti-terrorism, Crime and Security Act 2001

Against that background, legislation – which became the Anti-terrorism, Crime and Security Act 2001 – was rushed at top speed through the UK Parliament in the days and weeks following 9/11. The Act was very long and complicated, covering a sweep of terrorism-related matters ranging from police powers to nuclear and aviation security. But of all the provisions contained in the Act, one set – known as Part 4 – was especially striking.

Here’s how Part 4 worked. The Home Secretary – a member of the Government – could issue a “certificate” against somebody if certain conditions were met. So, what were those conditions? First, she had to reasonably believe that the person’s presence in the UK was a risk to national security. Second, she had to reasonably suspect the person of being an international terrorist. And, third, the person concerned had to be a foreigner – in other words, not a British citizen.

If someone met those conditions, then a certificate could be issued. And then what? If it was not possible to deport the person then they could be detained instead. In other words, people who had certificates issued against them but who couldn’t be removed from the country could instead be imprisoned. And that didn’t mean imprisoned after having been convicted of a criminal offence following a fair trial before an independent court of law. It meant imprisoned, for an indefinite, open-ended period, on the say-so of a Government Minister.

The European Convention on Human Rights

Of course, people – including terror suspects, and even foreign terror suspects – have human rights. And one of the most fundamental human rights is the right to liberty. That right has been recognised in UK law for centuries, and is now enshrined in the European Convention on Human Rights.

Article 5 of the Convention says that everyone has the right to liberty, and that a person’s liberty can only be restricted in very limited circumstances – for example, when an independent court of law has found someone guilty of a criminal offence and sentenced them to a term of imprisonment. But it is very clearly a breach of the right to liberty to imprison someone indefinitely without a fair trial at the direction not of an independent judge but of a Government Minister.

So how could this happen? How could the UK make a law so clearly in breach of fundamental human rights? The Government, of course, had anticipated all of this. And it had a card up its sleeve. That card was another part of the European Convention – a sort-of “get-out clause”.

Article 15 of the Convention says that in certain very grave circumstances, it is lawful to, in effect, suspend some human rights, including the right to liberty. (But Article 15 doesn’t allow some other rights to be suspended. One right that cannot be suspended is the right not to be tortured – which includes the right not to be deported to countries where there is a real risk of torture. That is why the Government could not deport some foreign terror suspects – they came from countries known to practice torture – and therefore sought to imprison them in the UK instead.)

The Government’s case, then, was that following 9/11, the security situation was so severe that Article 15 allowed the right to liberty to be suspended. The suspects who were being held in Belmarsh Prison disagreed. And that disagreement was what the courts had to resolve in the Belmarsh Prison case. In doing so, the courts had to address some difficult and delicate questions about the extent to which individuals’ rights can be sacrificed or qualified in the pursuit of the (perceived) interests of the majority. And the courts also had to confront questions about their own role, and the extent to which the views of elected politicians expressed through an Act of Parliament – should take priority in such circumstances. Looked at in this way, the case was not only about how to strike the balance between individual liberty and (the perceived demands of) public safety, but also concerned the balance of power between Parliament and the courts.

In the second post, I’ll examine the decision of the House of Lords in the Belmarsh Prison case itself. A third post will follow, concerning the wider implications of the case—and the lessons we can learn from it about the nature of the UK’s constitution today. If you would like to read more about this case and related issues, you might like to look at chapter 1 of the textbook, Public Law, which I published in 2011 with Professor Robert Thomas. Chapter 1 can be read, free-of-charge, via this link on the Oxford University Press website.  

The Government’s judicial review proposals: a bluffer’s guide

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Before Christmas, the Government published a consultation paper called Judicial Review: Proposals for Reform. The consultation process ends today, and the Government will then decide whether to press ahead with its proposals, amend them, or abandon them. The proposals have been very widely criticised, including by the Bingham Centre for the Rule of Law and the Cambridge Centre for Public Law (whose responses to the consultation I helped to write) and the Public Law Project. If you’re studying Public Law or Administrative Law, you might well want to look at the Consultation Paper and at some of those responses. This post, on the other hand, aims only to give a brief overview of what all the fuss is about.

What is judicial review? 

Judicial review enables courts to ensure that Government decisions are legal, procedurally fair and rational. Legality requires that all relevant considerations are taken into account and irrelevant considerations ignored. Procedural fairness requires all relevant interests to be properly addressed and assessed, thus gaining more information of a decision’s likely effect. Rationality seeks to avoid arbitrary and illogical decisions. The Public Law Project has a brief guide to judicial review on its website.

Why is judicial review important? 

Judicial review serves a number of crucial functions. It allows individuals to challenge Government decisions – about matters such as asylum, immigration, planning and education – that may have a profound impact on their lives. It is also an important means by which the Government can be held to account – not least by ensuring that it exercises only those powers given to it by Parliament, and that it exercises those powers fairly and reasonably. Judicial review therefore upholds the rule of law: it ensures that Government occurs in a lawful manner. The absence of oversight of Government by an independent and free judiciary is the hallmark of a tyrannical society.

What is the Government proposing? 

The Government wants to reduce access to judicial review. In particular:

  • It thinks that in some types of cases (planning cases and cases involving the award of Government contracts) people should have only 30 days or six weeks to challenge a decision. That compares to a current time limit for judicial review of three months – and time limits in many other areas of law of up to several years.
  • The Government also wants to make it harder to get permission to bring a judicial review claim. At the moment, claims can only be brought with the permission of a judge – and that decision is taken “on the papers”. In other words, the judge considers whether the person challenging the decision appears to have a viable case, and if so, gives permission for it to continue. It is then possible to try again, this time at an oral hearing – and, surprisingly often, permission is granted at that oral hearing. The Government, however, wishes to reduce the circumstances in which it is possible to get this sort of oral hearing.
  • And the Government wants to make it more expensive to seek judicial review. In particular, in cases where permission is initially refused and then reconsidered at an oral hearing, a fee will have to paid by the person challenging the decision at that stage (whereas at present, there is no additional fee at that point).

Why have these proposals attracted so much criticism? 

All three of the proposals are problematic:

  • Reducing the time limit to 30 days or six weeks gives people very little time to decide whether to bring a challenge. That might mean that some (good) cases that would have been brought will not see the light of day. Alternatively, it might actually mean that more cases will be brought – because people will rush to start judicial review proceedings (so as not to get caught out by the short time limit) rather than trying to resolve the matter in other, cheaper, quicker ways. That cuts directly across the Government’s objective of reducing the number of judicial review cases.
  • Making it harder orally to challenge refusals of permission is also problematic. Judges often refuse permission “on the papers”, only for another judge – following an oral hearing – to grant permission to bring a judicial review claim. This suggests that judges often get it “wrong” when looking at cases “on the papers”. And this, in turn, suggests that oral hearings serve a crucial role in ensuring that viable cases do not get filtered out right at the start.
  • Finally, the objection to imposing a new fee is that it may inhibit access to justice. There is something particularly troubling about increasing court fees in order to make access to the courts more difficult – which is arguably the purpose here.

Why does the Government want to do this? 

The Government argues that judicial review gets in the way of efficient decision-making: that Ministers are doing their best to make decisions and get things done, but that nitpicking judges are constantly holding things up by picking holes in the procedures that have been followed. This is a very weak argument. Indeed, there is evidence to suggest that judicial review – and even the prospect of judicial review – may improve the quality of decision-making. The impression is given that the Government does not like judicial review – because it is an irritant to Ministers who would rather not be troubled by judges – and then sets out to make a case against it. That case fails to convince because it is based almost exclusively upon assertions and anecdotal evidence.

What is the broader objection?

The broader objection to the Government’s proposals is that they play fast and loose with the constitution, by failing to respect the fact that courts have a legitimate role to play in ensuring that Government acts in accordance with the rule of law. Here, by way of conclusion, is what Sir Jeffrey Jowell and I wrote in the response submitted to the Government on behalf of the Bingham Centre for the Rule of Law:

“The rule of law does not merely require that judicial review be available in some notional, theoretical sense. It requires that individuals have a real and adequate opportunity to challenge Government decisions before independent courts or tribunals. The proposals in the Consultation Paper fall to be evaluated in that light. The opportunity to challenge official decisions in different ways has been one of the significant contributions of this country to the rule of law over the past fifty years. It has been fashioned both by parliament and the courts. It has surely improved not only the justice but also the quality of the decisions themselves. This is because our carefully crafted principles of good administration require decision-makers to have proper regard both to all relevant legal considerations and to the interests of the public which, after all, they are there to serve. The need for efficient and expeditious decision-making is of course important. However, it must be balanced against the need for legal and other forms of accountability, which should not be lightly diminished.”

What else can I read?

If you don’t want to tackle the detailed responses mentioned at the beginning of this post, try the following short pieces instead: