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.
There 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.”
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 UK. It 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.
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:
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.
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.
Joshua Rozenberg has recently published an excellent article in the Guardian concerning the UK’s relationship with the Council of Europe – the international organisation (not to be confused with the European Union) which seeks to promote and secure protection for human rights in Europe. Rozenberg argues that that relationship will soon reach a turning-point, such is the UK Government’s dissatisfaction with the judgments of the the European Court of Human Rights concerning the European Convention on Human Rights (one of the Council of Europe’s principal treaties).
In his article, Rozenberg cites as evidence of this tension a range of examples, including the prisoner voting issue, the Court’s decision, earlier this week, concerning the dismissal from his job of a member of the British National Party, and an upcoming decision about whether the UK breached its positive obligation to protect life by failing to intervene when one person made serious threats against another person, later going on to kill him.
Rozenberg also refers to a fascinating interview on his Law in Action programme with Sir Edward Garnier QC (who, until recently, was the Solicitor-General), in which the UK’s relationship with the Council of Europe is discussed. If you want to listen to the programme, here is a link to it on the BBC iPlayer.
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 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.
I have just been re-reading (for some teaching I’m doing this week) the recent contributions of Jonathan Sumption and Stephen Sedley to the debate about the proper limit of the courts’ powers in a democracy (and in the UK in particular). Whether you are a prospective Law student or someone who is currently studying Public Law, Constitutional Law, or Administrative Law, Sumption and Sedley’s sharply differing papers are well worth looking at.
The first contribution is by Lord Sumption – written after his appointment to the Supreme Court was announced, but before he had taken up his appointment. (Sumption was appointed to the Supreme Court, somewhat controversially, without prior substantial experience as a senior judge, having been a prominent and widely-respected barrister.) Sumption argues that English judges have overstepped the mark: that they are too willing to rule against the Government (meaning, interchangeably it seems, Parliament and the Executive); that they conjure “rights” from thin air in order to find Government policy wanting; and that this reduces (at least in some situations) to little more than the advancement of judges’ own opinions under the guise of legal adjudication.
The second contribution is by Sir Stephen Sedley, who recently retired after several years as a distinguished High Court and Court of Appeal judge. Sedley puts forward a blistering critique of Sumption’s position, accusing Sumption of basing his argument on an unrepresentative (and sometimes poorly presented) set of cases, and of simply ignoring the great lengths to which courts go when attempting to work out whether it is acceptable for judges to adjudicate on a particular matter – and, if so, how close their scrutiny can properly be.
The disagreement between Sumption and Sedley reflects a much broader debate about the merits of so-called “legal constitutionalism” and “political constitutionalism”. On the one hand, there are those who maintain that the political branches of the constitution – that is, Parliament and the Executive – should be regulated principally by the political process itself. On this view, political scrutiny – including, ultimately, the electoral process – should be the principal forum for examining the wisdom of policy choices; courts should stick to making sure that the letter of the law has been adhered to and due process observed. On the other hand, legal constitutionalists contend that law should play a greater role in seeing that Parliament and the Executive respect basic rights and values – not least because those rights and values as they apply to some individuals and groups (eg marginalised minorities) may not be readily respected by a political process that inevitably aims to please the majority of prospective voters.
These issues are complex; the roots of the disagreement between Sumption and Sedley are deep, and their implications far-reaching. But their arguments are put in relatively accessible terms, and are well worth looking at. If you want to read them, you can find them via these links:
- Sumption, “Judicial and Political Decision-Making: The Uncertain Boundary” (FA Mann Lecture, November 2011)
- Sedley, “Judicial Politics” (2012) 34 London Review of Books 15
Yesterday’s Government reshuffle is important (although perhaps not as important as media coverage might imply) for all sorts of reasons. For lawyers, one of the most significant aspects is the change at the top of the Ministry of Justice, Kenneth Clark having been replaced by Chris Grayling. The change is significant because the Ministry of Justice is responsible for key aspects of the justice system, including courts, tribunals and prisons; in that sense, the leadership and strategic direction of the department is of obvious relevance to how the legal system works and develops. But the replacement of Clarke by Grayling is important for more specific reasons, too.
The full title of the position concerned is rather a mouthful: “Lord Chancellor and Secretary of State for Justice”. Prior to the Constitutional Reform Act 2005, the office of Lord Chancellor involved far more than simply heading up the Government department responsible for the justice system. The Lord Chancellor was also a judge – indeed, the head of the judiciary – as well as speaker (presiding officer) of the House of Lords. As such, the role of Lord Chancellor was highly unusual, because it straddled the three main institutions of the state – judicial, legislative and executive branches of Government. This, it was felt by many people, was a breach of the “separation of powers” principle, according to which the three parts of Government should be distinct, to avoid the overconcentration (and so the risk of the abuse) of power.
Others, however, argued that the role of Lord Chancellor was a perfectly valid – and very useful – one, not least because the office-holder, as both a senior member of the executive Government and as a senior judge, could manage relations between the two parts of the Government, including by upholding the crucial principle of judicial independence. On this view, the Lord Chancellor – provided that he was a sufficiently authoritative figure capable of rising above the maelstrom of party politics where necessary – could ensure that his political colleagues behaved in a way that respected the need for courts to be left to get on with their job, free from interference or criticism by politicians. And so, the argument went, the fact that the Lord Chancellor was both a member of the executive Government and a judge could (depending on the personal qualities of the office-holder) actually enhance judicial independence.
This is not to suggest that the old system was perfect. There were very strong arguments for stripping the Lord Chancellor, as a Government Minister, of his judicial role – including the importance of demonstrating a clear commitment to separation of powers, so as to convince the public that the courts truly are independent. But it was also felt by many people to be necessary to preserve something of the old system. To that end, section 3 of the Constitutional Reform Act requires the Lord Chancellor, in particular, to uphold judicial independence, while section 2 – uniquely for a Cabinet Minister – legally requires the Prime Minister, before appointing someone as Lord Chancellor, to be satisfied that the person concerned is “qualified by experience”. To date, Lord Chancellors have always been qualified by legal experience: both Lord Faulkner (2005-10) and Kenneth Clarke (2010-12) were barristers. Grayling, however, is not a lawyer (instead, Cameron presumably believes he is “qualified” by his experience as an Employment Minister).
In an interesting recent piece, Joshua Rozenberg argues that this “matters very much”. Even though the Lord Chancellor no longer sits as a judge, he heads a department that is responsible for the running of the courts and tribunals system – a system which must be constitutionally separate from the executive Government and which has a special duty to uphold the rule of law. Until now, Lord Chancellors, appointed at least in part on the strength of their legal experience, have clearly taken on the role of curator of that system – a role that, in some respects at least, transcends that of a regular, “political” Cabinet Minister. In that sense, the appointment of Grayling – an “on the up” politician, as Rozenberg puts it – represents an important break with tradition.
This does not mean that non-lawyers in general or Grayling in particular are necessarily incapable of properly discharging the functions of Lord Chancellor. But Grayling’s appointment certainly suggests that within Government, the perceived role of Lord Chancellor has shifted substantially over recent years, such that it is now not much different from that of any other Cabinet Minister. The extent, if any, to which this will make a practical difference remains to be seen – but one possibility is that a non-lawyer Lord Chancellor may have a less instinctive understanding of the legal system and of the courts’ role in it. This possibility is hinted at in Grayling’s reported remarks – prior to his appointment as Justice Secretary and Lord Chancellor – on the Human Rights Act. Those remarks will be the subject of a separate blog post later this week.