What Law Graduates Do #2: Working with Death Row Prisoners – “Houston, You’ve Got a Problem”

imageThis guest post is the second in a series of occasional posts by students I have taught, highlighting the interesting and varied things that Law graduates go on to do. The author of this post is Bobbie-Leigh Herdman. She studied Law at St Catharine’s College, Cambridge, graduating in summer 2012.  

You would think that convicted murderers who have been sentenced to die by lethal injection for their crime would be scary, right? You would think that meeting them would feel like being in the presence of evil and that all you would be able to think about would be the innocent people they had killed. You would be wrong.

Cambridge University’s Institute of Criminology runs an internship scheme which sends students to Texas, USA for two months each summer to work for a non-profit law firm called Texas Defender Service (TDS). In summer 2012 I was one of three students sent to their office in Houston to work as an intern for two months. TDS represents death-sentenced clients in the final stages of their appeals process and aims to have their clients’ sentences commuted from death to life imprisonment. This work often involves ‘damage control’ of shoddy work that has been done by previous lawyers during the original trial and subsequent appeals. Capital defence work is badly paid and many lawyers who do this work do it badly, either through lack of experience, lack of resources or apathy. TDS employs a small number of very experienced and passionate attorneys and seeks funding from other sources to supplement the State payment made for what is literally lifesaving work. The organisation relies very heavily on unpaid interns to be able to manage their case load and, as a result, interns are given substantial work to do and a lot of responsibility.

During my time in Texas I worked with a number of attorneys on different cases and in varied areas. I worked on a research project which involved providing detailed information to the American Bar Association on the operation of the death penalty in Texas, as it considers whether or not to campaign for a moratorium on capital punishment. I found this to be a great way to start my internship as it allowed me to familiarize myself with the system of capital punishment in Texas.

A lot of the work that interns do involves meticulous examination of reams of files and papers which document the history of the client’s case, his medical, social, family and educational history, the details of his trial and prior legal representation. The aim of this exercise is to collect information about every aspect of the client’s life in an attempt to find a ground of appeal (e.g. mental health problems, inadequate legal representation) against the death penalty being given in that case. In cases where TDS is seeking a re-trial due to an alleged flaw in the original trial it is vital that a full picture of the client’s life is created and presented to the jury, who determine the sentence in capital cases. A failure to humanize the client to the jury by a failure to properly investigate all potentially mitigating evidence is often what leads to a death sentence being imposed in the first place.

As part of my internship I was also required to visit clients at the Polunsky Unit, Texas’ death row, to give them updates on their cases, have them sign documentation and chat to them. Having spent a few weeks poring over case files detailing murders and others detailing the litanies of abuse experienced by the perpetrators of those murders, I found it difficult to reconcile feelings of sympathy for my clients with the horror I felt at their crimes. This difficulty was heightened when I visited death row. The clients became humanised, despite being chained and caged like animals and only visible from behind a glass screen. They were not defined by the worst thing they had ever done. They were sports fans, religious fanatics, fathers, husbands, friends. One of their fellow inmates was scheduled for execution the week I visited them and the ghost of their inevitable fate lurked in the eyes of every one of them. They were frightening and frightened, dangerous and vulnerable, criminals and men.

Since 1976, when the death penalty was reintroduced after a four-year moratorium, the state of Texas has executed 464 people, over four times more than any other State. Systemic flaws in the justice system ensure that mostly poor, black men are sentenced to death and procedural rules and a pro-capital punishment judiciary make the appeals process burdensome and very rarely successful. There are serious questions about the justice of the system and this is unacceptable when the penalty is the ultimate and irreversible one.

My studies of Criminology, Sentencing and the Penal System at Cambridge gave me my first insight into the reality of criminality and the criminal justice system and it fascinated me much more than I had anticipated. After completing work experience in a high security prison in the Christmas holiday of my final year I was hooked and decided to apply for the TDS internship. It was a very demanding summer, both intellectually and emotionally, and I will never forget the men I worked for, following their cases until the end, whatever the end might be for them. My time in Texas reinforced my belief in the importance of public interest legal work and encouraged me to take the career path I now intend to follow. It also made me value the legal aid system as it exists in the UK, which ensures that all defendants have access to competent legal advice even if they cannot pay for it themselves. A dismantling of this system would inevitably lead to injustices, with poor defendants receiving substandard legal advice and suffering the consequences in their criminal records and sentencing.

I am currently completing an LLM in Human Rights Law at Queen’s University Belfast and am interning at a criminal law solicitors firm. I hope to focus my Masters dissertation on the human rights of incarcerated people and intend to complete the BPTC – the Bar Professional Training Course – next year and become a barrister, specializing in criminal work and judicial review. My studies at Cambridge and the TDS internship have undoubtedly shaped my decision to take this course. Sometimes the focus at Cambridge can seem to be to send law graduates to big City law firms to work in corporate law and earn a lot of money. My experiences illustrate that the opportunities and support are there for those who wish to take a different path and that such a path is equally worthwhile.

Advertisements

Guest post: Jack Williams’s study advice – A letter to my fresher self

jack picture original copy 2This guest post is by Jack Williams, who studied Law at St Catharine’s College, Cambridge, graduating with a First Class honours degree in summer 2012. In it, he offers advice – by way of a letter to himself as a new Law student – on how to study Law.

So, you’ve been studying Law for a term now and you’re feeling a little snowed under. You’ve never studied Law or anything even like it before and never felt quite this challenged by something. You’re beginning to question whether you’re ‘doing it right’, and want some suggestions how you might go about your studies to maximise your grades. So, having now completed my Law degree, if I were to write to my fresher lawyer self, this is what I’d tell myself…

First, Jack, there is certainly no golden one answer about how to study Law or go about your studies: everyone learns differently and everyone enjoys different topics. Therefore do what works for you; ask and take everyone’s advice on board – they’re trying to help and there’s no shame in asking – but always remember that you’re the one trying to learn and it’s you who’s going to be taking the exams at the end of the year. Have confidence in yourself.

Second, you’re bound to make mistakes. Jack: you’ve never studied Law before, you’ve never been to University before, and you’re here to learn. You’re not meant to know everything at the age of 19. You learn by doing – take a risk and try it out. The process of finding out how you learn best and the sometimes gruelling effort you have to put in to learn how to learn Law will be incredibly beneficial and personally fulfilling. It will all click into place; it will happen – once you’ve mastered it, everything becomes so much easier and reading the next chapter, article and case becomes quicker and easier. Keep going and believe in yourself. Don’t keep on doing things that obviously aren’t working.

Working effectively

Third, simply cramming and rushing to finish everything for a supervision or a class is rather foolish if that means that you’re skipping material and not really thinking about what you’re reading and contrasting academics’ and judges’ viewpoints with your own. You shouldn’t be treating supervisions or classes as the end goal or a test; instead you should treat supervisions as part of the journey. The end of the journey is your complete understanding (and ultimately the exam). This all means that you should be smart about what you aim to get out of your supervisions or classes – they’re there to help you. This approach will mean managing your time carefully and being methodical about what you cover and when. It is not an excuse for not doing the work. It might, though, mean that you cover some of the work after the supervision itself – check what’s on the handout and what’s going to be focused on. Doing the reading properly once (instead of cramming/rushing for the supervision and having to come back in the holidays to start from scratch when you’ve forgotten most of it) will actually save you time and aid your understanding as you’re working on the topic as a whole at one time. It will enable you to see the topic in the round. To master this approach you should be aiming to really comprehensively study the topic the first time round – this means also working from your lecture notes and reading all the extra material and further reading. This will mean you have to look at the whole reading list at the start and split it into the individual topics; warning – this might mean working from different parts of different books/chapters at one time instead of going through one resource at a time.

Fourth, don’t simply highlight your textbooks. A good approach is to type your lecture notes (which saves a lot of time, are easier to read, and are quicker to edit) and you can then add your textbook notes to them. This reduces unnecessary duplication. You should read the textbooks and reading list material alongside your lecture notes as you go (even if lectures aren’t finished) and add textbook notes to lecture notes. You will then have one very comprehensive document which is much better than a variety of different sources and notes with lots of duplication. This will save you time when you come to revise! When it comes to articles (which you absolutely must read – you won’t be able to answer essays otherwise!), you should print these all off (double sided will save paper and money and time printing!). These you should highlight. You should also dot little notes on them. Then leave space in the relevant place in your lecture/textbook document so that when you print them off you can slot the articles into the right places. Highlighting/doodling on articles instead of typing them up like you do the textbooks will save you a lot of time which will enable you to read more. The more articles you read, the quicker it becomes as many have duplications and basic case facts and ideas repeated. Also not typing up articles will mean that you still have the original – you may find you missed out crucial threads of arguments when you come back to revise! Putting a two line summary of the main argument at the top of the printed article will also help.

Cases

Fifth, Jack, before you read the cases, make sure that you’ve read the relevant textbook sections and search your reading list and Westlaw for other case commentaries (especially if your reading list didn’t include any short summaries for the cases it specifically asks you to read). This will enable you come at the case with a very clear idea about its topic and content. It might even save you from reading the whole case if the commentaries were very clear and include judges’ names and arguments. In any case, it might make reading the case much easier and you’ll have some academic opinion to think about and point you towards the right places so you know what you should be thinking about or focusing on.

Sixth, as you’re studying you should be looking to assign a case name to every statement of law you note down, and an academic’s name to every opinion or comment on the law (unless it’s your own theory – and no other academic has previously written it down!). Lecturers’ comments are not authorities. When you’re making your notes, if you ensure the case and academics’ names are all down the left-hand side of the page, when you come to revision you’ll be able to cover them up and test yourself. Aim to be making your notes in a nice format which is revision friendly from the start!

Seventh, I’ve already hinted at this to you, Jack, but you really need to be doing as much of, if not all of, the further reading– at the same time as the other reading preferably. Otherwise make a (clear and easily-findable) list of everything to do in the holidays – make this as you go along, you honestly won’t remember otherwise.

All work and no play … 

Eight, continue to go out and enjoy yourself – if you time-manage well enough, you will still have enough time to play a sport, go out a couple of evenings a week and hold a number of extra-curricular positions! In fact, you’ll end up being a lot more time-efficient and stop wasting time/procrastinating as much as you did. You’ll also enjoy and appreciate your studies a lot more – the happier you are, the easier you’ll find it to study. You might, oddly, find out that the more you do, the better your grades become…

Nine, be active with law. The more you engage with it, Jack, the more it’ll make sense. Getting active with law means a number of things: not just sitting and passively reading, but actively thinking about it (i.e. factual situations and what the ‘answer’ in court may be), mooting, going to all the additional evening lectures your university offers, and emailing supervisors and friends.

Collaborate

Ten, continue to work with your friends. Form a study group – share around further reading notes, set each other extra articles not on reading lists and then share the notes around. Meet up before your supervisions or classes 15 minutes before to run over a couple of things. Perhaps even arrange small revision groups together. Definitely have a group mailing list! Remember you’re not in competition with mates. Instead, by sharing notes, sharing thoughts and working together on past exam questions you’ll be able to test your knowledge, get other ideas, get through so much more material than you could have on your own and it will mean you’re much more active with law. It also makes studying a lot more enjoyable and will mean you save a lot of time struggling through alone. Warning though – this is not an excuse for not doing the work yourself (especially the material on your reading lists marked ‘essential’ or ‘basic’): you absolutely must be doing the ‘building block’ work yourself; group study is superb for going beyond your reading lists and for revision of all kinds though!

Eleven, it’s a great idea to be thinking about the exam throughout the whole year. At the beginning of the year, print out all of the past exam papers and examiners’ reports. After you read through each handout or reading list, look through all the exam papers and label the questions for that supervision or class. This will enable you to know what to look out for or what sorts of issues to focus on when you do the reading. It’ll also help to give you an idea of what sorts of things to take notes on. If you don’t know how to answer the question by the end of your reading, or don’t know where to look in your notes, then remember to take the exam question along to your supervision or class and ask your tutor about it.

Stay up to date

Twelve, keep up with the legal news. The best way to do this is to read blogs (such as www.applyingforlaw.org for constitutional law, and http://mcbridesguides.com for tort law) and to use Twitter to follow legal academics, bloggers, your law faculty, the courts, other law students and barristers. Retweet everything that looks useful and relevant and then go back to read when you have more time.

Thirteen, if you’re finding life tough, speak to people – your tutor, supervisors, Director of Studies, lecturers or even your law society president. Never be afraid to admit you don’t understand something or to ask for help. When it comes to academics, before you email them do make sure you’ve honestly tried hard and looked your legal question up as best you can – they won’t appreciate it otherwise!

Exams

Fourteen, in exam term, have a game plan. Aim to read through all the notes at least twice. Then make several essay plans per subject – throughout the year you should have noted key essay topics for each topic as you went through (utilising past papers, your own common sense on what the debateable areas in that topic are, what lectures focused on, what’s new or in the legal news, and what you enjoy/understand the most). Ensure your essay plans have lots of case and academic names; make sure you’ve gone beyond lecture notes by looking at the latest editions of all the law journals. After that, then make condensed hand written notes based on your full notes. Then keep on re-reading everything again and again and again and again…. However, you cannot simply be passive and just read though – after you read each page you need to test yourself in your head: cover up the case or academic names. Then, for ones you keep forgetting or getting wrong maybe make some posters and some flashcards. Also make sure, however rough or illegibly, that you have written each case name and academic name at least once so you know how to spell it and also test yourself that you’ve remembered it.

Fifteen, in your exams:

  • Always cite case names; always underline case names.
  • Put judges’ names in – even if you simply cite a case name, dicta and then put “(per Williams LJ)” (even as a student you can dream!).
  • Always put lots of academics’ names in. Academics’ names plus year of article is even better (i.e. “As Williams (2012) rightly argued…”) or just bracketed after a long sentence (e.g. “The law of equity is really difficult (Williams, 2012)”. Another thing to remember is that if you’re not just putting the academic name after a general sentence concerning a point you’re attributing to them by putting them name in brackets, then you should put words like “rightly”, or “convincingly” or “lucidly” or “correctly”. This will show that you’re engaging with them and not just regurgitating their names and ideas.
  • Write what you think will be your best answer first, your second best second, etc.Also don’t be scared about doing any Section B’s first, or any part (c)s before part (b)s etc. Doensure that you label clearly though – the examiner is unlikely to appreciate it if she has to navigate a script with lots of arrows pointing the way between different parts of your answer.
  • Make sure that it’s very clear where your answer to one question ends and where your answer to the next question beings.
  • Plan. This might only have to be for a minute if you’ve learnt your essay plans well enough and are lucky enough for one vaguely related to come up.(But remember that the examiner will want to read an answer to the question she has asked: don’t just regurgitate a prepared essay unless you’re asked exactly what your essay plan relates to – you  are very likely to have to adapt it and think on your feet, but at least you will have got the relevant material and some sort of order in mind.) Write 8 or so bullet points i.e. one for each main point plus an introduction and conclusion.
  • Remember that your introduction must be your conclusion; it must answer the entire question in one paragraph and it must contain each main point your essay will make i.e. it is basically your one minute essay plan! If you treat your introduction like an essay plan and a bit like an interview oral question which you have to answer in literally a minute or two in a nutshell you will do well and your essay will flow nicely and have structure.
  • Aim for absolute clarity – use pointers like ‘first’, ‘second’ and ‘in conclusion’ to thread your argument together; this will make reading your script easier for the examiner and also demonstrate a logical approach to the question.

As Jack notes at the beginning of this post, there is no magic bullet. Studying Law – and learning how to study Law – is not easy at first, and there are many different possible approaches. This post reflects Jack’s own views, and what worked for him. Have you found any of these techniques helpful? Do you disagree, or have other advice? If so, feel free to add a comment below. 

New cases and developments in administrative law

Screen shot 2012-12-21 at 17.33.09If you are currently doing a public law or administrative law module, you may be interested in these online updates to my book, Beatson, Matthews and Elliott’s Administrative Law: Text and Materials. The updates provide summaries of and extracts from key cases decided between January and October 2012, as well as information on other relevant developments in this area. The online resource centre for the book is free to access; no password is required.

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.

Legal constitutionalism, political constitutionalism and prisoners’ right to vote

9780199237104_450

This post is an extract from Oxford University Press’s latest public law newsletter. In it, Professor Robert Thomas and I comment on the recent controversy concerning rulings by the European Court of Human Rights on the right of prisoners to vote. Professor Thomas and I are co-authors of the undergraduate textbook Public Law, published by Oxford University Press. 

Our textbook, Public Law, is organised around three themes that are crucial to the UK’s contemporary consititutional arrangements. One of them is the distinction and relationship between legal and political forms of constitutionalism. Students often find such apparently theoretical or abstract notions off-putting: but the current controversy surrounding the right of prisoners to vote in elections is an excellent vehicle for exploring such ideas.

As is well-known, the Strasbourg Court held in Hirst v UK (No 2) that the UK’s blanket ban on voting by prisoners breaches Article 3, Protocol 1 of the European Convention on Human Rights. That was also the view of the Scottish Registration Appeal Court, which, in Smith v Scott, issued a declaration of incompatibility under the Human Rights Act in respect of the relevant legislation. Several years on, the offending legislation has not been amended or repealed—although the Government, hard up against the deadline set by Strasbourg, has now published a draft Bill setting out various options (including no change).

In his recent statement to the House of Commons on prisoner voting, the Justice Secretary, Chris Grayling MP, said that he takes his “obligation to uphold the rule of law seriously”, but that it “remains the case that Parliament is sovereign”—the implication being that it need not jump when the courts tell it to. In these remarks, Grayling (intentionally or otherwise) encapsulates the tension between the competing claims of legal and political constitutionalism.

The perceived deficiencies of the former and strengths of the latter are postulated in increasingly sharp terms by much of the political rhetoric surrounding not only the prisoner voting issue, but other bêtes noire of those opposed to judicial “interference”. Consider, for example, the Prime Minister’s speech in November proposing to make judicial review harder to access in order to curb (what is perceived to be) unwarranted judicial meddling in the business of government.

It is always difficult to judge whether phenomena such as these are merely transient flashes in the pan or evidence of a more profound shift. For some time now, the pendulum has been moving—propelled most obviously by the growth of judicial review and the adoption of the Human Rights Act—in the direction of legal constitutionalism. It may be, however, that it is beginning to move back, as the majoritarian case in favour of Parliament’s legislative freedom is stated with increasing boldness, against the backdrop of a relatively activist domestic and European judiciary.

When the second edition of Public Law is published in 2014, the report of the Commission on a Bill of Rights will have been published and picked over, and Hirst—along ­with the Prime Minister’s judicial review proposals—might or might not have been implemented. As we state in the book, and as we frequently remind our own students, it is meaningless to ask whether the UK adheres to legal or political constitutionalism. The constitution of any advanced democracy includes both legal and political forces and constraints; the question is not whether the UK has a political or legal constitution, but the appropriate balance between political and legal forces and constraints in any particular context and the wider lessons to be drawn for our understanding of the constitution. Exploring developments such as prisoners’ right to vote will be key to assessing the contemporary balance between these two traditions.

Why can’t the UK deport Abu Qatada?

This guest post is by Natasa Mavronicola, a PhD candidate at the Faculty of Law, University of Cambridge. 

The Special Immigration Appeals Commission has recently ruled that radical cleric Mohammed Othman (Abu Qatada) cannot lawfully be deported to Jordan, as such deportation would be in breach of the right to a fair trial enshrined in Article 6 of the European Convention on Human Rights (‘ECHR’), which has been transposed into UK law through the Human Rights Act 1998. This development has been met with strong reactions by the UK government, as well as a significant segment of the media and the public. An outline of the key points of law at issue in this case can provide food for thought and enable informed debate on this matter.

The right to a fair trial and the use of evidence obtained through torture

Article 6 of the ECHR provides that everyone is entitled to a fair trial in the determination of his civil rights and obligations or of any criminal charge against him. The right to a fair trial enshrined in Article 6 of the ECHR encompasses a number of elements, including the entitlement to a reasonably prompt hearing, the right to be tried before a fair and impartial tribunal, the presumption of innocence, and rights of cross-examination in criminal trials. Recently, the Grand Chamber of the European Court of Human Rights (‘ECtHR’) ruled that the use of evidence obtained through torture to convict a defendant in a criminal trial amounted to a breach of the right to a fair trial enshrined in Article 6 of the ECHR. Torture is absolutely prohibited under Article 3 of the ECHR and at international law, and the right not to be subjected to torture is seen by the ECtHR as a core right, which is fundamental in democratic societies and which is inviolable. The use of evidence obtained through a breach of such a fundamental right is thus seen as wholly tainting the fairness of the trial. Moreover, statements obtained by individuals through torturing them are perceived as unreliable by the ECtHR, an attribute that would further undermine the fairness of the trial if such evidence were admitted.

This became crucial in relation to Abu Qatada’s proposed deportation to Jordan, where he faces charges for the commission of terrorist offences. The Jordanian authorities held evidence against him, in the form of incriminating witness statements from individuals implicated in the relevant terrorist offences. Abu Qatada alleged that certain of these witness statements were likely to have been obtained through the torture of those witnesses and were also likely to be used against him in court.

Expulsion, flagrant breach, and the ‘real risk’ question

The ECtHR considered this allegation in Othman (Abu Qatada) v UK and made a number of important legal points and findings. The Court considered that the prospect of a ‘flagrant denial of justice’ in the country to which an individual was being expelled to could raise an issue under Article 6 ECHR. According to the Court, a flagrant denial of justice went beyond irregularities or lack of safeguards in trial procedures but amounted to a breach that was so fundamental it amounted to a destruction of the very essence of the right enshrined in Article 6. The Court then confirmed that the use at trial of evidence obtained by torture would amount to such flagrant denial of justice and breach Article 6, since, according to the Court, it would make the whole trial immoral and illegal and render its outcome entirely unreliable. The Court therefore found that if the applicant could show there was a real risk of such evidence being admitted in the trial against him in Jordan, his expulsion to Jordan would be contrary to Article 6 of the ECHR.

Turning to the factual allegations regarding the risk of the use of such evidence in trial, the ECtHR found that the admission of evidence obtained by torture was widespread in Jordan despite guarantees against such admission in the law. The Court further relied on findings by the UK’s Special Immigration Appeals Commission, which had found that the applicant had demonstrated a real risk that certain key evidence was obtained by torture and that there was a high probability that this evidence would be admitted at the applicant’s trial. The ECtHR therefore found that the applicant had demonstrated a real risk of a flagrant denial of justice if he was deported to Jordan, and the applicant’s deportation to Jordan would be in violation of Article 6 of the ECHR.

Despite attempts by the UK government to use assurances by the Jordanian government and changes in Jordanian law to disprove the finding that there was a real risk of the admission of evidence obtained through torture in Abu Qatada’s prospective trial in Jordan, the Special Immigration Appeals Commission ruled on 12th November 2012 that the real risk subsisted. The government is considering an appeal from this decision, and Abu Qatada has been released on bail in the meantime.

Abu Qatada’s case raises questions regarding the interplay between the absolute prohibition on torture and the notions of justice and fairness. For instance, how far does or should the unreliability of evidence obtained by torture be a significant factor in the analysis? The case further raises questions over the relationship between law (notably human rights law) and politics in the notoriously contentious area of security and counter-terrorism. In particular, it highlights that human rights law often operates to protect the core rights of extremely unpopular minorities or individuals even against vehement public opinion. Given that the prohibition on torture is portrayed by the ECtHR as fundamental to democratic society and as core to the essence of justice, the controversy that this case has given rise to exposes the deep-rooted and constant debate over the precise meaning, content, and role of democracy, justice, and human rights in our societies.

Why the government’s proposals to restrict judicial review are misconceived

There is nothing novel about tension between the government and the courts: former Home Secretaries, most notably Michael Howard and David Blunkett, picked almighty rows with the judges. But the present confrontation between the coalition and the judiciary is particularly striking, not least because it is now opening up on so many fronts. It includes the long-running saga on voting by prisoners, the furore over the deportation of Abu Qatada, the “secret courts bill”, and the constant background noise concerning the perceived deficiencies of the Human Rights Act and the courts’ judgments given under it.

Today, however, David Cameron has opened up this “war” (his metaphor, not mine) on a new front, by raising the prospect of limiting the courts’ powers to subject government action to legal scrutiny. The proposal, it appears, is to make judicial review more expensive and to reduce the time-limit for bringing claims (which, at three months, is already very short). “Normal rules” were cast aside during the second world war, says Cameron, and the “economic war” in which the country is presently engaged justifies preventing the courts from obstructing the growth agenda.

To anyone who values the rule of law, this is a profoundly depressing and fundamentally misconceived argument. This is so for two reasons.

First, it casts judicial review—and, more generally, the law—as something that gets in the way of efficiently making decisions that promote the public interest. But such thinking is simplistic (at best), plain wrong (at worst). It rests upon a false dichotomy between adherence to law, on the one hand, and effective governance, on the other. Judicial review is in fact a valuable means of shining a light on the dark recesses of the governmental machine, in which inefficiency and incompetence lurk. Indeed, as the Prime Minister himself acknowledged, the prospect of judicial review in relation to the West Coast rail franchise revealed serious deficiencies in the decision-making process that seem likely to have far-reaching implications. Nor does judicial review impose especially onerous standards on decision-makers. Rather, it requires them to do such things as: give those likely to be affected by their decisions a fair opportunity of being heard; take into account all relevant (and no irrelevant) considerations; respect limitations contained in the legislation granting power to the government; and avoid manifestly unreasonable (or, in certain circumstances, disproportionate) decisions.

In fact, judicial review is particularly important in the UK’s constitutional system, given the paucity of other means by which to hold government to account effectively. The electoral system normally (but not invariably, as recent experience shows) delivers a substantial majority for one party; the governing party is generally able to impose its will on the House of Commons; and the House of Lords, while a valuable counterweight, is ultimately the Commons’ legal inferior. External scrutiny of government by independent courts is therefore imperative.

The second problem with Cameron’s analysis is, if anything, more fundamental. It presupposes that the courts’ powers of judicial review are vulnerable to political interference: that the judges’ wings can be clipped provided that the coalition can muster enough support to get the legislation through Parliament. This assumption may turn out to be dangerously misplaced. Indeed, it is no exaggeration to suggest that if the government and Parliament choose to push this point, they may unleash one of the most significant constitutional crises in recent history.

Under the theory of “parliamentary sovereignty”, Parliament is supposedly free to make any law that it wishes. Yet the underlying assumption is that other, political factors will make sure that Parliament does not abuse its authority—and that the legally unlimited nature of Parliament’s law-making power is therefore not something we need lose any sleep over. If, however, Parliament were to attempt to remove (or seriously reduce) the courts’ constitutional powers legally to hold the government to account, then it would at least be arguable that Parliament had failed to keep its side of the bargain—and that courts could retaliate in kind.

This may seem far-fetched. But in fact precisely such a possibility has been canvassed by senior judges. In the Jackson case, decided in the aftermath of an earlier attempt to interfere with judicial review, Lord Steyn said that judicial review may be a “constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish”. This comment was made against the backdrop of proposals to prevent judicial review of certain decisions, rather than (as under the proposals) to make judicial review harder. But the government should not draw undue comfort from that distinction: a point must come when seeking judicial review is so practically difficult (e.g. because of an unreasonably short time limit or unmanageable costs) that its theoretical possibility fails to meet the underlying constitutional concern. In 1997, Laws J, in the case of Witham, held that there is a constitutional right of access to justice, and that high court fees may breach that right. Against this background, the prospect of deliberately raising court fees in order to reduce access to justice is a highly suspect step that is likely to attract critical scrutiny by the courts.

The UK’s unwritten constitution relies upon a delicate—if unarticulated—balance of power between Parliament and the courts. That balance can be retained only if each side is appropriately respectful of the other. And that, in turn, requires that Parliament resists the temptation to undermine the courts’ constitutional role by significantly restricting their powers of judicial review. The Prime Minister should not blithely assume that any attempt to do so would succeed. And if he chooses to pursue the matter, he may find that waging “war” on judicial review triggers a bloody battle with the judiciary—from which neither side may emerge unscathed.

What Law Graduates Do #1: The Law Commission

This is the first in an occasional series of guest posts by people I have taught. The series aims to give a flavour of the range of things that Law graduates go on to do. This post is by Peter Yates, who is currently working at the Law Commission. 

I studied Law at St Catharine’s College, Cambridge, and graduated in 2010. After that, I did an LLM in Public International Law at UCL, as well as some legal work, internships and volunteering. Now, I am a research assistant in the Law Commission’s criminal law team. This post should hopefully give you an idea of what this interesting and challenging role involves, as well as some information about the Commission’s work.

The Law Commission is the law reform body for England and Wales (there are similar organisations in Scotland, Northern Ireland, Ireland, Australia and New Zealand). Although it is a statutory organisation funded by the state, it is independent of the government of the day. The Commission’s role is to review areas of law which are unfair, outdated or unnecessarily complicated and to propose new laws which are fair, modern, simple and cost-effective.

The Commission is split up into four teams, each of which deals with a different area of law – each team will have a number of reform projects on the go at any one time. The criminal law team is currently looking at the law on insanity and automatism, contempt of court and kidnapping. In addition to the four law reform teams, there is another team whose task it is to remove ancient and redundant laws from the statute book.

Once an area of law has been included in the Commission’s programme of reform (on the basis of a recommendation from judges, lawyers, government departments, the voluntary and business sectors or the general public), the Commission produces a “consultation paper”, which sets out the current law, identifies any defects and proposes some potential reforms. Consultation papers are circulated widely to interested organisations and individuals and to the media. Anyone can respond to one of the Commission’s open consultations. This process of consultation is crucial to ensure that the law reform process is fair and effective – hearing from people who are experts in that particular area of the law, or who have experienced it in practice, gives legitimacy to the Commission’s reform proposals.

After the consultation responses have been analysed the team will produce a final report, which sets out the Commission’s reform proposals. If necessary, the team – working with the Commission’s in-house Parliamentary counsel – will also produce a draft Bill. It’s then up to the Government to decide whether or not to implement the Commission’s proposals.

Working as a research assistant is fascinating. After four years of studying law and hearing (and writing) seemingly endless criticisms of it, I’m able to make a (very small) contribution to its reform. Being at the heart of the law reform process is exciting for anyone who has read about the law or who has an interest in politics. There are meetings with government officials, senior judges and eminent lawyers, as well as an opportunity to write material which ends up in Commission publications. The criminal law team has recently been looking at the offence of “scandalising the court”, which criminalises attacks on judges and the judiciary. The issue has been covered in the media and in Parliament, and the Commission released a consultation paper on the offence in August.

Research assistants are given a number of tasks, depending on the needs of the team. A typical day might involve writing research minutes on a particular area of law or procedure, dealing with correspondence coming into the team, or proof-reading documents prior to publication. I’ve been lucky enough to have an opportunity to draft a piece of work which is going to be published alongside the Commission’s consultation paper on contempt of court. Freedom of Information requests are also the responsibility of research assistants.

So, what sort of skills might a research assistant need? Clearly, a good knowledge of the area of law in question is essential. In addition, researchers must have a keen eye for detail – a missed case or statutory provision at the start of a project may cause the whole argument to unravel further down the line. The ability to explain difficult concepts clearly – both face to face and on paper – is also crucial, as is a willingness to work closely with the other members of the team. Researchers also have to be able to drop what they are doing and familiarise themselves with a new area of law at short notice.

Working as a research assistant is challenging and rewarding. It’s an opportunity to work with some extremely intelligent lawyers and to see the inner workings of the law-reform process, as well as great preparation for a career in law. I would encourage anyone who has a good law degree and an interest in law reform to apply.