Category Archives: Constitutional Law

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.

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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:

Ten things you wanted to know about the Bill of Rights Commission’s report but were afraid to ask

Screen Shot 2012-12-19 at 10.27.22On 18 December 2012, the Commission on a Bill of Rights published its report. This post answers ten key questions about the Commission, its report and its implications.

The report is very long, and paradoxically the parts that actually address the controversial questions are the least useful (for reasons that will become apparent if you read on). In contrast, those parts of the report (e.g. chapters 3 to 5) that set out the background to the debate and the existing legal position provide valuable overviews and surveys of other countries’ approaches to human rights protection and incorporation of the European Convention on Human Rights.

(1)  Why was there a Commission on a Bill of Rights?

The Commission on a Bill of Rights was established under the terms of the Coalition Agreement – which, in this area as in many others, sought to paper over divisions of opinion between the Conservatives and the Liberal Democrats by establishing a review. In their 2010 general election manifesto, the Lib Dems undertook to “[e]nsure that everyone has the same protections under the law by protecting the Human Rights Act”. The Conservative Party, meanwhile, said that it would “replace the Human Rights Act with a UK Bill of Rights”.

That somewhat opaque manifesto position inevitably fell to be read against more direct statements by Conservative spokesmen, some of which evidenced strong scepticism about the HRA. For instance, David Cameron said that the HRA should be replaced with a British Bill of Rights in order to “define the core values which give us our identity as a free nation” while facilitating a “hard-nosed defence of security and freedom”. The implication was that the HRA precluded a sufficiently hard-nosed approach in such areas. The further implication was that a domestic Bill of Rights would strike the balance differently between individuals’ rights (particularly those of such “undesirables” as terror suspects and prisoners who deign to demand to vote) and the interests of the “law-abiding majority”.

Ultimately, then, the Commission was formed because the Conservatives and the Liberal Democrats had gone into the 2010 election with irreconcilable policies on human rights. The Liberal Democrats wished to preserve the status quo – that is, the courts’ powers under the HRA to protect rights – while the Conservatives wanted to reduce the extent to which priority is afforded to rights over other interests. The Commission was thus given an impossible task of reconciling the irreconcilable – and it is unsurprising that its report is a damp squib.

(2)  What does the Commission propose?

That question is surprisingly difficult to answer. One of the members of the Commission resigned earlier this year, and those who were left failed to arrive at a consensus. There are therefore majority and minority views contained within the report – and the picture is further complicated by eight additional papers written or co-written by individual members of the Commission, but which do not have the support of all members.

However, a majority of members think that there should be a UK Bill of Rights. In line with the Commission’s terms of reference, the Bill of Rights would build upon the Human Rights Act in that, like the HRA, it would seek to give effect in UK law to the rights contained in the European Convention on Human Rights (plus perhaps some other rights – on which see below). All of this sounds very much like a rebranding exercise – which is essentially what it boils down to. As one blogger has put it, the public is “fed a diet of strident anti-human rights rhetoric by a number of daily newspapers and by certain politicians”. As a result, the HRA (a majority of members of the Commission have concluded) has become such a damaged brand that it is likely to be beyond redemption, making a fresh start necessary. And, says the Commission, a UK Bill of Rights would lead to a greater sense of “ownership”, helping to dispel the myth that human rights are an alien concept imposed upon the UK by a foreign court.

(3)  Doesn’t everyone agree?

No. Two members of the Commission – Helena Kennedy and Phillipe Sands – entered a strong dissent which is set out in some detail in a separate paper (“In Defence of Rights”) annexed to the report and in this article in the London Review of Books. They saw little evidence of an “ownership” problem, arguing that those opposed to the HRA in its present form often based themselves on misinformation peddled by the media and politicians – a problem of public understanding that could be tackled without changing the law. They concluded that the majority had failed to identify substantive problems with the HRA (as distinct from problems of perception) and that there was a risk that support for a Bill of Rights could operate as a Trojan horse for advocating British withdrawal from the ECHR system.

Elaborating upon this point, Kennedy and Sands argued that for some members of the majority, a UK Bill of Rights would be “little more than a re-branding exercise intended to foster a greater  sense  of  ‘ownership’”; but for others it would offer “a  convenient  means to reduce rights, to cast Europe adrift and return to the delusional idyll of an earlier age of sovereign authority unconstrained by obligations set out in international instruments”. Kennedy and Sands were unwilling to be associated with a case for a Bill of Rights that might ultimately weaken the protection of rights by bringing about the UK’s withdrawal from the ECHR.

Before leaving those who dissent from the majority’s conclusion, it is worth drawing attention to the excoriating criticism of the majority’s view in an article in the Guardianby eminent human rights barrister Ben Emmerson. He castigates the majority’s proposals as “lazy and sloppy” ones advocated by people who he says (in the main) lack “recognized competence in human rights law”. “It is like allowing the editors of the Daily Mail and the Sun to draft our constitution,” says Emmerson.

(4)  What rights would be in a UK Bill of Rights?

The Commission’s terms of reference required it to produce proposals that would build upon the HRA: meaning that a commitment to the ECHR had to be taken as a given. (As explained below, this constraint was almost more than some members of the Commission could bear.) But the Commission did consider whether additional rights should be contained in a Bill of Rights. On this point, they found a strong case for a free-standing equality provision (although it is unclear whether this would add anything in substance to the protections already found in the Equality Act 2010). There was not, however, an appetite for including within a Bill of Rights such things as socio-economic rights and environmental rights.

But the Commission’s conclusions on all of these matters were tentative because – in an extraordinary concession – it said that it lacked the expertise and experience needed to make firm recommendations about what rights should be contained in a Bill of Rights. This does not reflect well on the Commission, the way in which it was established, or the processes it followed in arriving at its conclusions.

(5)   How would rights in a UK Bill of Rights be protected?

A Bill of Rights, as conceived by a majority of the Commission, would work in a similar way to the HRA: courts would not be able to strike down Acts of Parliament that were found incompatible with human rights, but would instead be able to issue a non-binding “declaration of incompatibility”. This, thought the Commission, struck a sophisticated and appropriate balance between the sovereignty of Parliament and the effective protection of human rights. However, while this conclusion is a sensible one, its adoption underlines the fact that, at best, a UK Bill of Rights as conceived by the majority of the Commission would amount to a repackaging of the HRA.

In a separate paper annexed to the main report, two members of the Commission – Lord Faulks and Jonathan Fisher – argue that thought should be given to providing the courts with greater powers than they have under the HRA by allowing them to strike down, or refuse to apply, rights-incompatible legislation. However, this proposal does not appear to be born of enthusiasm for judicial protection of human rights. As well as raising the possibility of the UK’s withdrawal from the ECHR (meaning that a UK Bill of Rights would protect an entirely British set of rights – whatever that means), Faulks and Fisher anticipate that judges would use a strike-down power more sparingly than they use their present, lesser power to issue declarations of incompatibility. Paradoxically, then, their intention appears to be to equip courts with powers that they would be reluctant to use. It is also worth noting that Faulks and Fisher’s paper demonstrates the fragility of the coalition of views comprising the majority.

(6)  Would the UK still be part of the ECHR system?

Yes. Or at least, that is the official line of the majority. But their view on this point is expressed in very careful terms: their proposals are put forward “in accordance with their terms of reference … on the basis that [a Bill of Rights] would incorporate and build on all of the UK’s obligations under the ECHR”. Yet, as noted above, two members of the Commission explicitly advocate the possibility not only of decoupling a Bill of Rights from the ECHR, but of withdrawing from the ECHR itself. So while the majority is not formally proposing withdrawal from the ECHR, it is plain that some members of the majority think that a UK Bill of Rights could pave the way for withdrawal.

The majority’s position is further complicated by the fact that they envisage that the rights contained in a UK Bill of Rights may not be expressed in the same language as those contained in the ECHR. At present, the Convention rights are reproduced verbatim in the HRA. But, says the majority of the Commission, there is a “strong case at least in principle for drafting [a UK Bill of Rights] in language reflecting our own heritage and tradition”. This would help, they think, with the (perceived) “ownership” problem: that, at present, people think that the HRA gives effect to “foreign” rights that are insufficiently “British”.

But there are three problems with this position. First, human rights are supposed to be universal: they are rights to which people are entitled by virtue of their humanity, not their nationality. Any re-expression of the rights in “British” language could only be legitimate if it was cosmetic. Second, the UK (unless those arguing for withdrawal prevail) would remain bound by the ECHR, creating the risk that a differently-worded UK Bill of Rights would be out of step with the UK’s international obligations. And, third, the rights in the ECHR are not in any event “foreign” ones. The UK was closely involved in the drafting of the Convention, and the rights, for the most part, reflect values deeply embedded in the legal culture and laws of the countries of the UK.

(7)  Would the UK still be bound by ECtHR judgments?

A large part of the impetus for the formation of the Commission was dissatisfaction on the part of Conservative politicians with judgments of the ECtHR and judgments issued by UK courts implementing the Convention. As is by now well-known, the prospect of implementing the ECtHR’s judgment in Hirst v UK (No 2) holding that (at least some) prisoners have a right to vote makes the Prime Minister feel “physically ill”. So, too, it may be inferred, does the UK Supreme Court’s judgment holding that indefinite inclusion in the sex offenders register, with no prospect of reprieve in the event of rehabilitation, is incompatible with the right to respect for private life. That “offensive’ decision”, which flew “completely in the face of common sense”, prompted the Prime Minister to vow that a Bill of Rights commission would be “established imminently because … it’s about time we started making sure decisions are made in … Parliament rather than in the courts”.

But what difference would a UK Bill of Rights along the lines envisaged by the Commission make? Ultimately, none. The UK – for as long as it remains a party to the ECHR – remains bound in international law by the Convention rights and the Strasbourg Court’s judgments. That is why some members of the Commission, like Faulks and Fisher, openly contemplate withdrawal from the ECHR; only if that step were taken would it be possible to move beyond the current position which the Prime Minister appears to regard as unacceptable.

(8)  What about “responsibilities”?

For some time now, politicians – both Labour and Conservative – have argued that there is too much talk of individuals’ rights, and not enough about their “responsibilities”. A vague notion has emerged that rights should somehow be linked with, or dependent upon, responsibilities: that those who fail to discharge the latter should be unable, or less able, to enforce the former. The Commission on a Bill of Rights has, quite rightly, concluded that this is nonsensical: that is fundamentally misconceives the nature of human rights. “[I]t is in the nature of human rights,” says the Commission “that they exist for all human beings equally without reference to whether they are ‘deserving’ or not and that they cannot be made directly contingent on the behaviour of the individuals concerned.”

However, the Commission does not entirely dismiss the relevance of “responsibilities”. First, it concludes that awards of damages for breaches of human rights should be informed by the behaviour of the victim. And, second, it thinks that there may be a case for a declaratory provision in a Bill of Rights “setting out the importance within our society of mutual responsibilities towards one another”.

(9)  Should a Bill of Rights be adopted right now?

The Commission thinks not. This is for two main reasons. First, the Commission recognizes that “any process of moving towards the creation of a UK Bill of Rights would have to be undertaken gradually, with full consultation, and with great care to avoid creating divisiveness and disharmony”. This is a sensible view. Indeed, the way in which the Commission itself was set up attracted criticism, and it is good that the Commission recognizes that a more far-reaching and inclusive process would be necessary were a Bill of Rights to be adopted. This point is particularly important given that public scepticism about the HRA may in part be attributable to the lack of such a process prior to its enactment.

Second, the majority on the Commission believes that this is not the right time to adopt a Bill of Rights because the constitutional future of the UK is so uncertain. In particular, the Commission does not think that a debate about a UK Bill of Rights could sensibly get underway until the referendum on Scottish independence has been held. The outcome of that referendum – whichever way people vote – is likely to have profound implications for the future development of the UK’s constitution, and it seems sensible that any discussion about a Bill of Rights should form part of the wider conversation that is likely to ensue.

(10)  What next?

It is extremely unlikely that anything will happen before 2015: that is, after the Scottish independence referendum and after the next UK general election. Beyond that, it is very hard to predict what will happen. Much will depend on the outcome of those two democratic processes.

The Bill of Rights Commission’s terms of reference precluded it from formally considering the case for UK withdrawal from the ECHR. But it is clear, as noted above, that some of the members of the Commission think that such a step may be warranted. It is also the case that the possibility of withdrawal is now entering into mainstream political debate to an unprecedented degree. The Lord Chancellor and Justice Secretary, Chris Grayling, wrote in the Telegraph earlier this week: “We believe that with rights come responsibilities. And we believe that the European Court of Human Rights has overstepped its mark, and that things have to change.” It is therefore entirely conceivable – but not yet certain – that the Conservative Party will go into the next election advocating withdrawal from the Convention.

It is time for an open and honest discussion about all of these matters. Those arguing for a UK Bill of Rights need to be clear about what it is they are advocating. A Bill of Rights that simply repackages the HRA? A Bill of Rights that extends and deepens legal protection of rights in the UK? Or one that reduces that protection by decoupling the UK human rights system from that of the ECHR? In particular, those arguing for the latter must be forced to make plain their agenda and to attempt to justify it.

That task will be a hard one. As Phillipe Sands and Helena Kenndy put it in their dissenting paper: “A UK Bill of Rights may seem harmless and even attractive at first sight, but alarm bells should be ringing about motivations. For us, human rights is about working not just within our own country but with other countries to improve the human condition, to engender respect for all individuals, to protect those who are vulnerable, and to create the conditions for the delivery of justice and peace. To remove the glue that holds us together with other nations is dangerous.”

Judicial review – why the Ministry of Justice doesn’t get it

Screen Shot 2012-12-17 at 10.06.18This post was first published on the UK Constitutional Law Blog. It follows on from a piece I published on this Blog a few weeks ago concerning the Prime Minister’s criticisms of judicial review. 

Following the Prime Minister’s declaration of “war” on judicial review last month, the Ministry of Justice has now published a consultation paper in which it sets out, and invites comments on, specific proposals concerning the judicial review process. They include reducing the time limit for seeking judicial review in certain circumstances. In planning cases, the limit would come down to six weeks, and in procurement cases to 30 days. The Government also proposes to reduce the scope for renewing applications for permission to seek judicial review following an initial refusal. In particular, such renewal applications would not be permitted by way of an oral hearing in cases where “substantially the same matter” had already been the subject of a hearing before a judge or where, on the papers, a judge had ruled the claim to be “totally without merit”. Court fees would also go up. Applying for judicial review would cost £235 instead of £60 (as at present), and a new fee (of £215-£235) would apply to oral renewals.

These ostensibly dry proposals do not appear to amount to a “war” on judicial review, not least because there is no attempt to immunize any categories of Government decisions against all judicial scrutiny. But this does not mean that the proposals are trivial. Shorter time limits will undoubtedly make it harder for some challenges to be made, given the time needed to put together some applications. Meanwhile, reducing the scope for challenging initial refusals of permission to seek judicial review arguably assumes that the initial stage is more robust than it actually is. In fact, empirical research by Bondy and Sunkin shows that it is something of a lottery, with significant variation between individual judges’ inclination to grant permission. And while, in the general scheme of things, £235 may not be a huge amount of money (given the other costs often associated with litigation), there is something rather troubling about increasing court fees in order to make access to the courts more difficult – which is arguably the purpose here.

These aspects of the proposals are considered in more detail by Adam Wagner in a thoughtful piece published on the UK Human Rights Blog. In this post, however, I wish to focus more on the “mood music” associated with the MoJ’s consultation, and will suggest that it inadequately reflects – indeed, distorts – the constitutional significance and role of judicial review.

“Pyrrhic victories”

Part of the Government’s case for making judicial review more difficult is that, compared with a few years ago, far more claimants are now seeking to bring judicial review applications: a phenomenon which, the argument goes, has undesirable implications both for judicial resources and public administration. Much is therefore made of the fact that only a small proportion of applications for permission to seek judicial review are granted; that fewer than half of cases that proceed to a substantive hearing are decided in favour of claimants; and that even those claimants who are successful may win only “pyrrhic victories” – all of which supposedly demonstrates that the judicial review process is, for the most part, an unwelcome and unnecessary distraction from the business of governing.

This argument can be contested in a variety of ways, but here I concentrate on one particular aspect of it – namely, the dismissal of some (perhaps many) successful judicial review claims as merely pyrrhic victories, “with the matter referred back to the decision-making body for further consideration in light of the Court’s judgment”. Given the context (described above) of this claim in the consultation paper, its import is presumably that pyrrhic victories are pointless ones, because the decision-maker might ultimately make the same decision again. But to make such an argument is to miss the point in spectacular fashion.

It is undeniably the case that success on a number – but by no means all – of the judicial review grounds will result in the matter being referred back to the decision-maker in the way described in the consultation paper. But such victories are far from unimportant. Viewed in instrumental terms, it is impossible to know in advance whether any given judicial review victory will be pyrrhic – in the sense of failing to prevent the unwanted substantive decision from being retaken – or not. If, for instance, a court rules that the decision was flawed because a legally irrelevant consideration was taken into account or an improper purpose pursued, the new decision – taken only on the basis of relevant considerations and for statutorily authorized purposes – may or may not differ.

But even this instrumental analysis misses the point – or at least fails to capture the whole of it. For judicial review is about far more than merely helping some claimants to get the decision they want. In normative terms, it discharges a constitutionally imperative function by enabling the Government to be held to rule-of-law based standards of good administration and due process. Viewed in this way, there is no such thing as a pyrrhic judicial review victory: every victory – whatever the eventual outcome for the individual – is a victory for the rule of law.

The “negative effect” of judicial review on decision-makers

The consultation paper contains a second, equally surprising assertion. According to paragraph 35:

“It is not just the immediate impact of Judicial Review that is a concern. We also believe that the threat of Judicial Review has an unduly negative effect on decision makers. There is some concern that the fear of Judicial Review is leading public authorities to be overly cautious in the way they make decisions, making them too concerned about minimising, or eliminating, the risk of a legal challenge.”

As well as noting the highly impressionistic nature of this assertion – should not Government policy be based upon more than “belief” and unsubstantiated “concern”? – three specific points may be made in response to it.

First, the argument, even if taken at face value and assessed on its own terms, is lamentably weak. It reduces to the contention that public authorities should be shielded from judicial review to a greater extent than they are at present because of their tendency – if exposed to judicial review – to do things that the law does not actually require of them. The solution to this problem – if it exists – is so obvious as not to require elaboration.

Second, it could just as easily – and, arguably, more convincingly – be contended that the threat – or, putting the matter less pejoratively, possibility – of judicial review may have a positive effect on decision-makers. This point can be made in relation to specific individual cases, an obvious and notable recent example being supplied by the collapse of the Government’s decision to award the West Coast rail franchise to First Group. It is clear that that decision – which had been robustly defended by Ministers – may well have stood had judicial review not been in prospect.

Third, the foregoing argument can be applied in a broader sense. Not only may the prospect of judicial review impact upon particular decisions; it may also influence the approach to decision-making within Government more generally. Looked at in this way, the principles of good administration enforced via judicial review constitute a template of best practice – and one that is taken seriously thanks to its legal enforceability. This is reflected, for instance, in the former Cabinet Secretary’s foreword to the 2006 edition of The Judge Over Your Shoulder, who commended it “as a key source of guidance for improving policy development and decision-making in the public service”. This point cannot be pressed too far. It is, for instance, well-known that public authorities are not particularly good at internalizing judicial decisions within their front-line decision-making processes; but this is hardly a reason for attempting to shield public bodies from judicial review.

Judicial review as an unwelcome irritant

In one sense, the consultation paper says the “right” things about judicial review. It is, for instance, acknowledged to be a “critical check on the power of the State”; and the intention behind the reforms “is not to deny, or restrict, access to justice, but to provide for a more balanced and proportionate approach”. (“Proportionate to what exactly?” one wonders.) But underlying the consultation paper is a mindset that postulates judicial review proceedings as an unwelcome irritant. For instance, it is said (without the provision of any examples) that:

“[They] create delays and add to the costs of public services, in some cases stifling innovation and frustrating much needed reforms, including those aimed at stimulating growth and promoting economic recovery.” 

Similarly, in his media statement accompanying the publication of the consultation paper, Chris Grayling, the Lord Chancellor and Secretary of State for Justice, said:

“We have seen a huge surge in Judicial Review cases in recent years. The system is becoming mired in large numbers of applications, many of which are weak or ill-founded, and they are taking up large amounts of judicial time, costing the court system money and can be hugely frustrating for the bodies involved in them.”

This reflects sentiments expressed by the Prime Minister in his speech to the CBI in November. Judicial review, like other trappings of the administrative state such as consultations, audits and compliance with EU procurement rules, was cited as a factor that makes the Government “far too slow at getting stuff done”. Being distracted by such matters was not what had made the UK “one of the most powerful, prosperous nations on earth”. And so part of the solution, said Cameron, was to cut back on judicial reviews, “many of which are completely pointless”, thereby “getting a grip” on this “massive growth industry”.

Whatever lip service is paid to the constitutional importance of judicial review in the consultation paper, the mood music is pretty clear. Judicial review is not a Good Thing. Of course, it is hardly surprising that politicians are not fond of judicial review, given that they are among those on the receiving end of such proceedings (not, of course, that this should really bother them that much if many cases are “completely pointless” and victories merely “pyrrhic”). In that sense, the fact that the Government has brought forward these proposals against the backdrop of antagonism towards the courts’ judicial review powers has a certain “Dog Bites Man” quality to it.

Judicial review in its broader constitutional setting

But this surface observation masks a deeper point about the nature of the constitution and judicial review’s place within it. If Parliament is sovereign, then there is clearly no legal inhibition upon its clipping the courts’ wings – whether in the relatively modest ways proposed in the consultation paper, or more profoundly via (for instance) the use of statutory ouster provisions. And there is equally nothing that legally prevents the Executive – its obvious vested interest notwithstanding – from pressing Parliament to enact such legislation. On this view, then, judicial review is fair game, and there is nothing improper – at least in a legal sense – if the political branches modify or curb the High Court’s supervisory jurisdiction.

However, as I have argued elsewhere, the UK’s unusual – including unwritten – constitutional arrangements are defensible and sustainable only for as long as the three branches of Government exhibit appropriate respect towards one another. This requires, among other things, that Parliament and the Executive acknowledge and accept that a key part of the courts’ constitutional role involves securing Government according to law. Indeed, it is increasingly clear that for at least some senior judges – consider, for instance, the by now well-known dicta in Jackson – the absence of such respect for the courts might trigger a wider breakdown in institutional comity.

It is difficult, if not impossible, to predict what would happen were such circumstances to eventuate, precisely because the unwritten constitution is animated and sustained by a fundamental uncertainty, or mystery, about the relationship between different loci of power.  It would, for instance, be going too far baldly to argue that judicial review is a constitutional fundamental such that Parliament is not sovereign – just as it would be going too far to assume blithely that the courts’ powers of judicial review are as constitutionally precarious as an orthodox application of the doctrine of parliamentary sovereignty would suggest. What can, however, be said with relative confidence is that acceptance by the political branches of the courts’ judicial review powers is a crucial component of the implicit institutional comity upon which the British constitution – in the absence of an explicit, formalized constitutional settlement – depends.

The Ministry of Justice’s proposals fall well short of a full-frontal attack upon judicial review, and as such they do not fundamentally threaten that comity. But they reflect both an underlying antagonism towards judicial review and an assumption that the courts’ powers in this area exist only on the terms and to the extent that the other branches are prepared to tolerate them. That assumption is a misplaced one, which exhibits inadequate sensitivity to the delicate, if unarticulated, nature of the UK’s constitutional settlement.

Richard Bacon MP and Nick Herbert MP on human rights

Screen Shot 2012-12-06 at 09.31.38On 4 December 2012, Richard Bacon MP introduced—under the “ten minute rule”—a Bill to repeal the Human Rights Act 1998. The Bill was rejected when put to a vote. But the fact that Bacon’s Human Rights Act 1998 (Repeal) Bill was introduced is significant in itself. It demonstrates growing unease—or at least, unease that is articulated more frequently and more boldly—with the idea of law and courts preventing elected politicians from doing what they think is right.

This reflects the tension—referred to in my previous blog post—between “political constitutionalism” and “legal constitutionalism”, which is concerned with the ways in which the exercise of power should be constrained. One way of understanding this is to ask: “What should stop the state from doing bad things—and who, in the first place, gets to decide what ‘bad things’ are?” Political constitutionalists argue that we should rely upon the political process—and, ultimately, upon the capacity of the majority (through Parliament) to exercise self-restraint. Legal constitutionalists, in contrast, argue that self-restraint by the majority is inadequate, and that there must be some external restraint upon what law-makers can do—e.g. by the courts enforcing constitutional laws that protect fundamental rights and interests, including those of minority groups too small or weak to punch their weight in the political process.

Bacon’s speech in the House of Commons earlier this week unashamedly, if implicitly, advocates political constitutionalism. (The text is available here; or you can watch the speech via this link.) He argues that:

… our best check is not unelected judges, but the spirit of liberty in the hearts of the elected representatives in this House.

This, he suggests, is because the sort of questions that human rights courts tend to engage with are ultimately “political” questions, even if they are presented as legal ones:

The fundamental point is that one cannot alter the political nature of a decision by changing the location where the decision is made. Judges do not have access to a tablet of stone not available to the rest of us which enables them to discern what our people need better than we can possibly do as their elected, fallible, corrigible representatives. There is no set of values that are so universally agreed that we can appeal to them as a useful final arbiter. In the end they will always be shown up as either uselessly vague or controversially specific. Questions of major social policy, whether on abortion, capital punishment, the right to bear firearms or workers rights, should ultimately be decided by elected representatives and not by unelected judges.

Bacon’s view is highly contestable. But if it is accepted, the question becomes: what should be done? Many people—including the Prime Minister—seem to think that the solution to this perceived problem is to repeal or amend the Human Rights Act 1998. In its submission to the Commission on a Bill of Rights, the Cambridge Centre for Public Law pointed out that this is not so, because the UK would remain bound in international law by its obligations under the European Convention on Human Rights. Professor David Feldman also makes that point in his piece published on the UK Constitutional Law Blog today. To his credit, Bacon also recognizes this point:

there is no point in belonging to a club if one is not prepared to obey its rules. The solution is therefore not to defy judgments of the Court, but rather to remove the power of the Court over us … [W]e need to repeal the Human Rights Act and resile from the convention.

In advancing this argument, Bacon echoes a speech given last week by another Conservative MP, Nick Herbert. (For a great commentary on Herbert’s speech, see Carl Gardner’s article on his Head of Legal Blog.) Criticising the notion of a “British Bill of Rights” that would sit alongside the European Convention, Herbert argues:

Far from giving us greater discretion to strike a balance between liberty and security, a British Bill of Rights, complementary to the Convention, would give us even less.  Our courts would remain bound not only by the Convention, and Strasbourg’s interpretation of it, but also by our judges’ interpretation of the British Bill of Rights. 

He therefore concludes

that we should resile from the European Court of Human Rights, repeal the Human Rights Act and introduce instead a UK Bill of Rights.  In doing so, we could also address some of the flaws in the operation of the Human Rights Act.

This suggests a subtle but important difference between the positions being staked by Herbert and Bacon. Whereas Bacon appears (on the basis of this week’s speech, at least) to be an unambiguously political constitutionalist, Herbert does not dismiss the case for legal-judicial enforcement of rights. Rather, he argues that British courts should be the ultimate arbiters of what those rights mean.

However, this position is not without difficulty. Herbert rightly observes that the language of “rights” has been devalued: “There has been, as Lord Justice Laws recently put it, a tendency to treat ‘I have a right to…’ as a synonym of  ‘I would like…’” But properly understood, rights that constitute “human rights” are truly fundamental—and universal. They are rights possessed by people because of their humanity—not because of where they live. As Professor John Eekelaar has pointed out:

It is antithetical to the core idea of human rights that they should be particular to any specific jurisdiction or particular group of people, or that they should be unavailable to any jurisdiction or group of people. That is why they are usually located in international instruments … One of the main values of the European system lies in the principle that when a human right is recognised as being held by someone in one European country, people living in other European countries will be considered as enjoying the same right. This should not be seen as a manifestation of foreign (i.e. European) power over national interests, but as an appreciation of the implicit commitment to universality in all human rights norms.

On this view, the pan-European nature of the system for upholding human rights in the UK is not (as Herbert thinks) one of its greatest weaknesses, but one of its greatest strengths. As debate in this area increasingly acknowledges that the ECHR is a real constraint – meaning that changes to the Human Rights Act would ultimately accomplish little – it becomes incumbent on those who share Eekelaar’s view forcefully to articulate and justify the key arguments: that the fundamentality of some rights should place them beyond legislative interference by the majority, and that the universality of such rights exposes the unfounded parochialism of the Euro-scpectic case against the ECHR. But this cuts both ways. The ECtHR, for its part, must resist the urge to (as Lord Hoffmann put it) “micromanage the legal systems” of the states that are parties to the Convention if it wishes to retain respect as the custodian of enduring, timeless values.

Justice Secretary on prisoner voting and disproportionate force against burglars

I have posted before (here and here) on the appointment of Chris Grayling as Lord Chancellor and Justice Secretary. Since his appointment, two major issues that Grayling has had (in one case) and chosen (in another) to deal with are prisoners’ voting rights and the rights of householders to act in self-defence against burglars. Yesterday, Grayling was interviewed on the BBC’s Andrew Marr show and was asked about both of these matters. (The interview can be watched on BBC iPlayer until Saturday 3rd November. The link is to the whole show; the Grayling interview starts around 40 minutes in.)

On prisoner voting, Grayling was (unsurprisingly) ambigious. He acknowledged that, at present, the “reality is that we [the UK] are signed up” to the European Convention on Human Rights, and that there would therefore be consequences if the European Court’s judgment, holding British law in this area to be incompatible with the Convention, were ignored. But pressed by Marr, Grayling did not rule out, in the medium term, the UK’s withdrawal from the ECHR. He reserved his position, indicating that the Conservative Party would bring forward proposals in time for the next election, and implied that those proposals may consist of steps that could not be taken at present thanks to the constraining effect of coalition politics. But looking beyond this period of coalition, Grayling said that the present human rights system “has got to change”.

Ultimately, Grayling’s view seems to be that the European Court of Human Rights has substantially overreached itself by interpreting and applying the Convention in ways that were not intended when the Convention was first drafted. (I have explained elsewhere why it need not follow that this is inappropriate.) Grayling’s perception appears to be that the Convention was intended to address grotesque human rights abuses (he gave the example of imprisonment without a fair trial in gulags in Stalin’s Russia), the implication being that the Court has stretched too far the range of matters that are now treated as unlawful breaches of the Convention.

On householders’ rights to defend themselves against burglars, Grayling defended his proposal to allow “disproportionate force” to be used (as opposed, at present, to “reasonable force”). My colleague, Professor John Spencer, has recently posted a Cambridge Law Faculty Law in Focus video on this subject, in which he suggests that the change proposed by Grayling is based on a misconception of the present legal position – based partly on tabloid misreporting of the notorious Tony Martin case. However, Professor Spencer goes on to argue that other aspects of the law in this area – concerning the ability of wounded burglars (or the families of burglars who are killed) to recover damages from householders and the sentencing of householders who kill burglars. Professor Spencer’s video can be watched below.

The prisoner voting saga, human rights, and the rule of law: the thin end of a very unpleasant wedge

The government has got itself into an enormous mess in relation to whether prisoners should be allowed to vote. Under UK law as it stands, prisoners are not allowed to vote in elections. But the European Court of Human Rights decided in 2005, in the case of Hirst v UK (No 2), that a complete ban on voting by prisoners amounts to a breach of the European Convention on Human Rights. Earlier this year, the Court set a deadline – which will expire in November – for the UK Government to bring forward proposals for legislation that would put UK law in line with the requirements of the Convention.

Against that background, on Wednesday morning, the Attorney-General, Dominic Grieve, indicated to the House of Commons Justice Committee that the UK would implement the ECtHR’s ruling. But within hours, the Prime Minister, David Cameron, said at Prime Minister’s Questions: “No one should be in any doubt. Prisoners are not getting the vote under this government.”

This episode, as well as providing a mildly entertaining example of senior members of the Government publicly contradicting one another, illustrates a series of interlocking issues concerning the status and protection of human rights in the UK today. The issues are complex, and in this post I simply wish to outline, very briefly, what they are. A crucial point, however, is to recognize that these issues are, although related, separate – and that a failure to acknowledge their separateness is one of the reasons why the “debate” about prisoner voting lacks coherence and rigour. What, then, are the issues?

The substantive issue

The first, and most obvious, issue is the substantive question: should prisoners be allowed to vote? Some questions concerning human rights – such as “Should the state be allowed to torture people?” – have answers that are so obvious that the question is hardly worth asking. Whether prisoners should be allowed to vote is, however, a rather different type of question. At the very least, there is scope for greater disagreement on this point even amongst people who all subscribe to a fundamental commitment to liberal values. Indeed, the ECtHR itself has indicated – most recently in the case of Scoppola v Italy (No 3) – that banning some prisoners (eg those imprisoned for more serious offences) can be reconciled with the European Convention. It the blanket nature of the ban in the UK to which the Court objects.

The European Court’s interpretation of the Convention

But there is, in any event, far more going on here than a simple disagreement of principle about whether prisoners (and, if so, which ones) should be allowed to vote. The second matter, then, concerns the legitimacy of the European Court’s interpretation of the Convention. The European Convention in fact says nothing explicitly about prisoners being allowed to vote. The judgments in Hirst and Scoppola are instead based on inferences the Court has drawn from Article 3 of Protocol 1, which requires states to “hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature”.

There are those who argue that by finding an implied requirement that some prisoners be allowed to vote, the Court has overreached itself. It is (so the argument goes) finding requirements in the Convention that were not intended by those who drafted it and by the States that signed up to it. Such an argument was made earlier this week in an article in the Telegraph by Jack Straw (a former Labour Home Secretary) and David Davis (a former Conservative Shadow Home Secretary):

Of course, the UK Government should not defy Strasbourg judgments regarding serious breaches of human rights, such as concerns that a deportee may be tortured. Such cases are precisely what the Court was set up to do; its conclusions in such cases ought to be respected by Britain in accordance with our obligations under the European Convention on Human Rights. However, in recent years the Court seems to have forgotten that its job is to apply the principles of the Convention as originally intended by those who signed it – nothing more, nothing less … [W]e now find ourselves in a situation where the Court is trying to impose judgments on Britain which would have astonished those who signed the Convention.

The scope for such “astonishment” does not, however, necessarily mean that the Court is behaving inappropriately. The Convention entered into force over 60 years ago. And the world has moved on since then. People’s attitudes have changed, and have (happily) become more progressive. Take, for instance, Article 14 of the Convention. It prohibits discrimination (in relation to the other Convention rights) in relation to “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. No mention is made of sexual orientation in the text of Article 14 – but there are few today who would doubt that the Court is right to treat sexual orientation as a “status” by reference to which discrimination is prohibited.

The bigger point is that the Convention, like most human rights texts, deals in general principles rather than specifics. Article 3 of Protocol 1 requires “the people” to be able to participate in choosing those who makes their laws. It is self-evident that a national law that disenfranchised vast swathes of the population would fall foul of this requirement: a small fraction of the population would not amount to “the people”. Article 3 of Protocol 1 – like every other provision in the Convention – therefore requires the Court to draw a line that is not drawn by the explicit text of the Convention itself. The judgments in Scoppola and Hirst show the Court grappling precisely with this line-drawing exercise: and in doing so it has distinguished between the UK’s indiscriminate exclusion of all prisoners, which has been held unjustifiably to undermine the principle of universal suffrage enshrined in Article 3 of Protocol 1, and Italy’s more nuanced approach which prevents only a limited category of prisoners from voting.

The rule of law

However, all of the foregoing questions are, in one crucial sense, of only secondary importance. There are many people who think that prisoners should not be allowed to vote and that the European Court went too far in reading into the Convention a requirement that at least some prisoners should be allowed to vote. Those views both relate to matters that are genuinely contestable. What is not, however, contestable is the nature of the legal position in which the United Kingdom now finds itself.

For as long as the UK is a party to the European Convention on Human Rights, it is bound by that Convention in international law. Article 1 of the Convention says that the States that are parties to it have agreed to “secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”. (The same is true of rights contained in optional protocols signed by particular States.) And Article 46(1) records that the States have undertaken to “abide by the final judgment of the Court in any case to which they are parties”.

The position is ultimately therefore very simple. Refusing to comply with the Court’s ruling on prisoner voting is not an option that is lawfully open to the UK. Such a refusal would be a breach of its obligations under international law. And as well as being unlawful, it would have significant reputational consequences, as Attorney-General recognized on Wednesday:

The United Kingdom government is adherent to the convention. The convention is one of our international legal obligations. And successive governments, including this one, have always put a great emphasis on the observance of our international legal obligations. We live in a world where international law matters increasingly … We do observe international obligations that are imposed on us … I have absolutely no doubt it would be seen by other countries as a move away from our strict adherence to human rights laws [if the UK refused to comply with the ruling on prisoner votes].

The matter therefore reduces to one of legality. David Cameron – and many other politicians – may think that prisoners should not be allowed to vote. They may also think that the European Court’s interpretation of the Convention went too far. But those objections do not alter the simple fact that respect for the rule of the law now requires the UK to adhere to the Court’s judgment.

Human rights in the UK today

Stepping back from the details of the prisoner voting saga, some broader truths emerge about the nature and status of human rights in the UK today. The Attorney-General correctly pointed out in his evidence to the Justice Committee that “Parliament is sovereign in this area. Nobody can impose a solution on parliament.” This is true as a matter of national law. If Parliament were to refuse to comply with the European Court’s judgment – by allowing at least some prisoners to vote – there would be nothing that domestic courts could do about that: the Human Rights Act 1998 explicitly denies national courts any authority to question the lawfulness of an Act of Parliament.

On the face of it, then, the HRA is an ultimately toothless statute: courts can issue declarations indicating that Acts of Parliament are incompatible with Convention rights, but cannot strike down such laws or require Parliament to change them. But the truth is generally thought to be more subtle: while national courts cannot do these things, behind those courts stands the ECtHR, whose judgments are binding on the UK in international law. It follows that if, as the Prime Minister’s stance on prisoner voting now suggests, the UK is prepared to ignore judgments of the European Court with which it disagrees, then that undermines the effectiveness of the HRA itself.

All of this suggests that it is time for a clear-headed, grown-up debate about the sort of human rights system that should apply in the UK. The process being undertaken by the Commission on a Bill of Rights suffers from deficiencies (some of which are mentioned here) that mean it is no substitute for such a debate. Nor is the highly-charged discussion concerning prisoner voting, which (as I have suggested) fails to distinguish between (on the one hand) questions of policy and  interpretation and (on the other hand) fundamental considerations stemming from the rule of law.

For a British Prime Minister to advocate disregard of the rule of law and to be cheered in Parliament for doing so is a depressing thing. The rule of law requires people and governments to respect the decisions of courts of law whether or not they agree with those decisions. That does not mean that people and governments should not criticize judgments with which they disagree or advocate law reform when courts’ judgments produce outcomes that are felt to be unacceptable – but it does require only lawful means to be resorted to in such circumstances.

If the UK government is prepared to disregard the ruling of the European Court of Human Rights on this particular issue, then what next? Disregard other rulings with which it disagrees, including rulings of national courts? The principle at stake in this case – respect for the rule of law – is a far bigger and deeper matter than any specific question about the rights and wrongs of a ban on prisoner voting (important though that question is). Those who are today applauding the Prime Minister’s “strong” stance on this issue should therefore bear in mind it may represent the thin end of a very unpleasant wedge.

Hidden influence, Prince Charles and freedom of information

You may or may not think that having an unelected monarch as head of state is an outrageous anachronism. But, either way, it is hard to dispute that the Queen discharges her functions in a way that acknowledges the limited role of a monarch in a constitutional democracy. That is why, quite rightly, we know essentially nothing about the Queen’s views on political or other remotely controversial matters. In contrast, Prince Charles appears to be perfectly happy to use his public role in order to advance his opinions. He is, for instance, a well-known advocate of “traditional” architectural styles – intervening in a highly controversial way in relation to the development of Chelsea Barracks – and a supporter of homeopathic “medicine”. As a senior figure in the royal family, he is unusually well-placed to attract attention to his views, however eccentric they might be.

Of course, Prince Charles is not the monarch. It may therefore be argued that he is not, and should not be, bound by the same requirements of neutrality as those which apply to the Queen. But such an argument cuts both ways. If the role of the heir to the throne is not as constrained as that of the monarch, then Charles should not expect the same privileges either. The constitutional role of the heir to the throne – and the reciprocal rights and privilieges that it entails – was at the heart of the judgment, delivered earlier this week by the Administrative Appeals Chamber of the Upper Tribunal, in the case of Evans v Information Commissioner.

A journalist had sought (under the Freedom of Information Act 2000 and other relevant legislation) the disclosure of “advocacy correspondence” between Prince Charles and several Government Departments. For this purpose, “advocacy correspondence” is correspondence (with Government Departments) that promotes particular points of views, including in relation to Charles’s charitable activities. The Government Departments resisted disclosing the correspondence, seeking legally to justify this position by asserting a public interest in non-disclosure. The Information Commissioner upheld the Government’s position, but the Upper Tribunal has now ruled against the Government (and, implicitly, Prince Charles).

The judgment is lengthy and complex, and I will make no attempt to summarise it. (If you want to read the whole thing, you can find it here – but this summary makes for easier (and quicker) reading, and gives a good overview of the issues.) Instead, I will just make three brief points for the time being.

First, the Upper Tribunal’s decision is surely correct. The so-called public interest in keeping this correspondence under wraps was said to consist in a constitutional need for free and frank exchanges between the heir to the throne and Government Ministers. This need, it was said, arose because the heir had to be “educated” about the workings of what would one day become his Government. While the Upper Tribunal accepted that there was an accepted need for the heir to the throne to be educated in such a way, it rightly concluded that no such educative purpose was necessarily advanced by engaging in advocacy correspondence. The balance of public interest lay in the opposite direction. If the heir to the throne is using his privileged position to push his views with Government Ministers, then there is a powerful argument that the use of such privileged access should be transparent. Quite so. If Government Ministers were to cave in to pressure from the Prince of Wales, the paper trail demonstrating that they had done so ought to be publicly available.

Second, very unusually for a judicial body, the Upper Tribunal had to consider “constitutional conventions”. Such conventions amount to the non-legal, or political, rules and practices of the constitution. They cannot (at least on a traditional view) be enforced directly by courts of law or tribunals, but they may influence the way in which the law is applied. Here, for instance, the scope of any convention concerning the education of the heir to the throne might be relevant to the establishment – or even be evidence – of a public interest in facilitating that process, not least because in order to be recognized as a constitutional convention, the practice or rule must be underpinned by a good constitutional reason.

The Government argued that the “education convention” extended to all correspondence between Government Departments and the heir to the throne. The Upper Tribunal rightly rejected this contention. It is accepted – indeed, it is a convention – that the monarch has the constitutional right to be consulted by, to encourage and to warn her Government. But that is not part of the constitutional role of the heir to the throne – and so his “advocacy correspondence” (which presumably might “encourage” or, more likely, “warn”) should not enjoy a privileged status.

Third, however, the law in this area has now been changed in a quite astonishing way. This case was decided under the old law. But the Freedom of Information Act has been amended. Section 37, which protects from disclosure communications between public bodies and the royal family, has been extended. It used to be the case that such communications were protected only in a limited way: they still had to be disclosed if the public interest in disclosure was judged to outweigh the public interest in non-disclosure. But certain categories of communications with the royal family – including communications with the heir to the throne – now enjoy absolute protection against disclosure. That means they do not have to be disclosed, however strong the public interest in disclosure might be. So if a similar issue arose today, there would be no need – indeed, no opportunity – for the Tribunal to weigh the public interests for and against disclosure: the information would be immune from release under the Freedom of Information Act, and that would be that.

The latter point is a reminder that in the British constitutional system, no values (such as transparency) are sacrosanct as a matter of law. If Parliament can be persuaded to change the law, then no system of higher constitutional law prevents it from trampling over such values. And, thanks to this amendment to the Freedom of Information Act, we are now less likely to discover whether Parliament is wielding this limitless legislative power at the behest of Ministers who have buckled under pressure from an unelected, unaccountable member of the royal family.

Image above reproduced under Creative Commons Licence