Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 3’ Category

Considering the case for a written constitution

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In July 2014, the Political and Constitutional Reform Committee of the House of Commons launched an inquiry into the question of whether there is a need for a new Magna Carta. The inquiry follows from research undertaken at King’s College London which lays out three different models – including one fully fleshed out, complete constitution – and sets out some of the arguments for and against codifying the constitution in this way. The following summary is from the Committee’s website.

Arguments for

The King’s research points to the fact that the UK has a “sprawling mass” of common law, Acts of Parliament, and European treaty obligations, and a number of important but uncertain and unwritten “conventions” that govern administration, but the full picture is unclear and uncertain to electors in our democracy. They point to concerns about an “elective dictatorship”, and argue that it has “become too easy for governments to implement political and constitutional reforms to suit their own political convenience”. A written constitution would entrench requirements for popular and parliamentary consent.  The present unwritten constitution is “an anachronism riddled with references to our ancient past, unsuited to the social and political democracy of the 21st century and future aspirations of its people. It fails to give primacy to the sovereignty of the people and discourages popular participation in the political process.”

Arguments against

Conversely, the case against a written constitution is that it is unnecessary, undesirable and un-British. The UK’s unwritten constitution is evolutionary and flexible in nature, enabling practical problems to be resolved as they arise and individual reforms made. The research points to concerns that a written constitution would create more litigation in the courts and politicise the judiciary, requiring them to pass judgement on the constitutionality of government legislation (which currently happens only in some contexts, such as compatibility with the Human Rights Act), when the final word on legal matters should lie with elected politicians in Parliament, not unelected judges. There is the simple argument that there are so many practical problems in preparing and enacting a written constitution, there is little point in even considering it. There is no real popular support or demand and, especially given the massive amount of time and destabilising effect such a reform would entail, it is a very low priority even for those who support the idea.

The Committee is currently taking evidence on the issue and will publish a report early in 2015.

For further detail go to http://www.parliament.uk/business/committees/committees-a-z/commons-select/political-and-constitutional-reform-committee/news/report-a-new-magna-carta/

Written by lwtmp

October 21, 2014 at 9:06 am

Law-making process in the European Union

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Those coming new to the study of law often struggle to understand precisely how the institutions of the European Union operate. There is a great deal of information readily available on the websites of EU institutions.

I have recently seen an excellent diagram on how the law of the EU is made, setting out the different stages that proposals from the European Commission must go before they become law.

To view, go to http://www.europarl.europa.eu/aboutparliament/en/0081f4b3c7/Law-making-procedures-in-detail.html and look at the slide show. (Click on the arrows in the middle of the picture.)

Written by lwtmp

October 6, 2014 at 9:29 am

Where next for Human Rights?

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Much publicity has been given to the publication of proposals from the Conservative Party to, in some way, opt out of the European Convention, or more particularly judgements of the European Court of Human Rights.

I was unable to track the paper down through the Conservative Party website, but it can be accessed from the BBC News website at http://www.bbc.co.uk/news/uk-politics-29466113.

The proposals are controversial and have already generated heated debate. A key issue, which has not had the air-time it deserves, is what message any such move by the UK Government would have on the other 46 states who are also members of the Council of Europe and who are signed up to the European Convention on Human Rights. Despite the Government’s impatience with certain aspects of the way in which the European Convention impacts on the UK (such as the decision on prisoner’s voting rights, or the power of the judiciary to impose whole life prison sentences without possibility of review) there is a general public assumption that – on the whole – human rights are respected in the UK. But this cannot be said for many of the countries who have joined the Council of Europe.

If the UK Government is able to announce that it no longer wishes to accept rulings of the European Court of Human Rights, then it is not hard to imagine that many other countries – where human rights are less well protected – might want to make the same argument. This could lead to an unravelling of the standards set by the European Convention on Human Rights that could lead to significantly adverse consequences for the future development of human rights in Europe.

More broadly, if these proposals went ahead, they could undermine the ability of future UK Government’s to make the case for improvements in human rights standards, in other countries where they currently do not exist or are extremely weak.

I do not argue here that the application of the European Convention through the work of the European Court on Human Rights is perfect. Far from it: the decision taking process is sclerotic; the backlog of cases is a scandal. The UK Government has taken a lead in discussions on developing measures to ensure that the European Court works more efficiently.

And if, as the Conservative Party argues, the Court is suffering from ‘mission creep’ then to remain engaged with the Court and to argue that there has been mission creep seems to me a more positive way forward. (In the latest prisoners’ voting rights case, at least 2 judges expressed significant concerns about the way decisions of the Court had been going, which opens up the possibility that the Court might alter its approach. )

This should be an important issue for public debate. The problem is that so many people do not really understand what the Convention rights are nor how they are applied. The issues are treated inadequately in the news media. Thus there is often assumed to be a lack of common sense about the Convention and its application which is not justified.

Certainly it is an issue that will continue to attract attention over the next couple of years.

Written by lwtmp

October 4, 2014 at 5:13 pm

Courts rule draft legal aid regulation a nullity

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It is accepted that the courts have power to declare a statutory instrument invalid where it has been made outside the powers (ultra vires) provided in the Act of Parliament. In practice this happens rarely – not least because officials usually ensure that they do not act beyond their powers.

However, in July 2014, in The Queen on the Application of the Public Law Project -v- The Secretary of State for Justice and The Office of the Children’s Commissioner [2014] EWHC 2365 (Admin), the Administrative Court did find that a regulation had been made ultra vires.

The issue arose from the desire of the present Government to cut public expenditure on legal aid. Arguing that what money was available should go to those most in need, the Government proposed that there should be a ‘residence’ test for civil legal aid. This would mean that, with some exceptions, 12 months continuous residence in the UK would be required before someone could be eligible for public legal aid funding. The rule was set out in a Draft Regulation, that was due to come into force in August 2014.

The problem arose because the Legal Aid, Sentencing and Punishment of Offenders Act 2012, in Part 1 of Schedule 1, list types of  case that remained potentially covered by the civil legal aid scheme.  Funding remains in place because the listed cases are regarded as having the greatest need for legal aid. In short, the Act limited entitlement according to criteria based on need and not on any other basis.

It was argued that, by seeking to prevent those coming new to the UK from getting legal aid, their needs might be just as urgent as those affecting people already here, but they would be denied legal aid because they did not meet the residence test. It was argued that the attempt to introduce this test by regulation was outside the scope of the Act. It was also argued that the effect of the regulation would, if upheld, be to discriminate unlawfully against those recently come from abroad. The Division Court agreed with these arguments and declared the Draft Regulation of no effect.

The Government announced that it would appeal the decision, but in the meantime, they would not go ahead with implementation of the draft Regulation.

The text of the decision is at http://www.judiciary.gov.uk/judgments/the-queen-on-the-application-of-the-public-law-project-v-the-secretary-of-state-for-justice-and-the-office-of-the-childrens-commissioner/

The Government response is at https://www.justice.gov.uk/legal-aid/newslatest-updates/civil-news/update-on-civil-legal-aid-residence-test

Written by lwtmp

September 30, 2014 at 5:06 pm

Prisoners’ voting rights: latest developments

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The question of whether the UK Government’s policy, that all prisoners should be denied the right to vote while they are in jail, has received further consideration, both in the UK Parliament and in the Grand Chamber of the European Court of Human Rights.

In the 2004 case of Hirst v United Kingdom (No. 2), the European Court of Human Rights found that the UK’s complete prohibition on convicted prisoners voting was incompatible with the European Convention on Human Rights. (A number of other cases had also reach this conclusion.)

The UK Government’s position has been that the blanket ban is justified on public policy grounds. However, given the clear ruling of the European Court, in 2012 the Government – after considerable delay and with very great reluctance – did publish a draft Voting Eligibility (Prisoners) Bill. This Bill was subject to pre-legislative scrutiny by a Joint Committee of the House of Commons and the House of Lords.

In December 2013, it published a thoughtful report on the issue.

By way of background, the Committee stated:

‘Underlying our inquiry is a far-reaching debate about the United Kingdom’s future relationship with the European Court of Human Rights, the Convention system as a whole and our attachment to the rule of law.

‘In reaching our conclusions we have taken fully into account the grave implications of a refusal to comply with the Court’s judgment for the UK’s relationship with the Court and for the future of the entire Convention system. A refusal to implement the Court’s judgment, which is binding under international law, would not only undermine the standing of the UK; it would also give succour to those states in the Council of Europe who have a poor record of protecting human rights and who could regard the UK’s action as setting a precedent for them to follow.

‘We have also considered the implications of failure to comply with the European Court’s ruling for the rule of law, which the UK has for so long upheld. The rule of law has been and should remain a fundamental tenet of UK policy. It is not possible to reconcile the principle of the rule of law with remaining within the Convention while declining to implement the judgment of the Court.’

Taking these general principles into account, the Committee then considered the options relating to prisoners’ voting rights.

‘In the Committee’s view, the following considerations should be taken into account:

  • In a democracy the vote is a right, not a privilege: it should not be removed without good reason.
  • The vote is a presumptive, not an absolute right: all democratic states restrict the right to vote in order to achieve clearly defined, legitimate objectives.
  • The vote is also a power: citizens are entrusted, in voting, with an element of power over their fellow-citizens.
  • There is a legitimate expectation that those convicted of the most heinous crimes should, as part of their punishment, be stripped of the power embodied in the right to vote.
  • There is an element of arbitrariness in selecting the custody threshold as the unique indicator of the type of offence that is so serious as to justify loss of the vote.
  • There are no convincing penal-policy arguments in favour of disenfranchisement; but a case has been made that enfranchisement might assist prisoner rehabilitation by providing an incentive to re-engage with society.
  • The enfranchisement of a few thousand prisoners is far outweighed by the importance of the rule of law and the desirability of remaining part of the Convention system.’

In the light of these considerations, the Committee recommended that
‘the Government introduce a Bill at the start of the 2014-15 session, which should provide that all prisoners serving sentences of 12 months or less should be entitled to vote in all UK parliamentary, local and European elections; and moreover that prisoners should be entitled to apply, up to 6 months before their scheduled release date, to be registered to vote in the constituency into which they are due to be released.’

In February 2014, the Lord Chancellor wrote to the Committee a letter thanking them for their views and assuring them that they were under active consideration in Government. This letter was published in June 2014. No Bill was announced in the Queens Speech delivered in June 2014.

Since then, a further case has been determined by a Chamber of the European Court of Human Rights. In Firth and others v United Kingdom, decided in August 2014, it was held that – failing a legislative response to its earlier rulings – the United Kingdom remained in breach of the European Convention on Human Rights.

However the Chamber refused to award any damages to the applicants, on the grounds that this ruling was enough. The decision also included a dissenting judgement from JUDGE NICOLAOU, who did not think that there had been a breach of the European Convention. In another dissenting judgement, JUDGE WOJTYCZEK indicated his view that the line of decisions developed by the European Court might not be correct and in his view the whole issue should have been revisited by the Court.

There is no doubt that there remains in the UK – and perhaps in other states in the Council of Europe – a view that prisoners should not have the vote. However, there is also no doubt that, pending any revision of the Court’s approach – the present position of the UK Government is at odds with the European Convention as interpreted by the European Court on Human Rights. It may be anticipated that any further response from the UK Government will be further delayed, especially in the light of the reservations expressed by two of the judges involved in the latest case.

For further information, see report of the Joint Committee at http://www.publications.parliament.uk/pa/jt201314/jtselect/jtdraftvoting/103/10303.htm;
the report of the Grand Chamber of the European Court is at http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-146101%22]}

Written by lwtmp

August 21, 2014 at 3:51 pm

What is happening to Judicial Review?

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Judicial review lies at the heart of our constitutional settlement. It is acknowledged that Parliamentary Sovereignty means that what Parliament legislates is the law. The rule of law implies that everyone, including officials of the state, must act within the law. The doctrines of the Separation of Powers and the independence of the judiciary give ultimate authority to the judiciary to decide whether or not decisions taken by state officials are lawful or not.
In recent years, some have argued that judicial review has been used not really to challenge the legality of decisions taken by officials, but to delay the consequences of decisions taken by officials. There are two specific contexts in which it is argued that judicial review has been used more as a delaying tactic than as a serious legal challenge: immigration and asylum cases; and planning decisions. These arguments are strongly challenged, in particular by public lawyers who deny that there is misuse or abuse of the system.
Nevertheless, the present Government has decided that the existing rules need to be changed. The first tranche of announcements were made in 2013 (see blog item for October 2013).
In February 2014, further announcements were made, many of which are being taken further in the Criminal Justice and Courts Bill 2014.

  1. Following the earlier decision to transfer immigration and asylum cases to the Tribunals Service, the Government decided that planning cases should also be diverted away from the Administrative Court and sent to a new Planning Court. (This replaces an earlier proposal that such cases should go to a new planning chamber in the Tribunals Service.) The Planning Court will be a part of the High Court, but there will be specialist judges who will deal with planning cases – not dissimilar to the specialist courts in the commercial law area. The hope is that, by taking planning cases out of the general run of cases going to the Administrative Court, they can be dealt with more quickly so that key planning decisions can be finalised more quickly.
  2. The Government wants to speed up appeals in cases which are of national importance which are inevitably going to end up in the Supreme Court, by expanding the circumstances in which such cases may go to that court without first going to the Court of Appeal. All such cases must involve a point of law of general public importance. This change, which is being legislated in the Criminal Justice and Courts Bill 2014, currently before Parliament, will not just apply to judicial review cases but to all civil cases. It will also apply to decisions of the Upper Tribunal, the Employment Appeal Tribunal and the Special Immigration Appeals Commission.
  3. The Government wants to stop JRs which are based on technical flaws in the original decision-making process, when it is ‘highly likely’ that the end result would have remained the same. This is also being legislated in the Criminal Justice and Courts Bill 2014. Judges are to refuse permission to bring a JR case where they accept that it is highly likely that the outcome would have been the same. How this will work in practice cannot at this stage be determined, but it may be predicted that judicial interpretation of the phrase ‘highly likely’ will vary from judge to judge, and this clause may itself generate a whole new area of litigation.
  4. The Government has decided that the details of anyone financially backing a JR must be disclosed, even if they are not a named party, so that costs can be fairly allocated. In the past backers have used individuals, and even set up new companies, to front JRs – meaning that any assessments by the court of the financial capacity of the applicant have not always been a fair representation. This change is also contained in the Criminal Justice and Courts Bill 2014.
  5. The Government has decided to create a presumption that third parties who apply to join in a JR case as “interveners” should normally be responsible for paying their own way – for example when a campaign group applies to become involved in a case already taking place between an individual and an authority. At present other parties in the case can be ordered to cover the legal costs of the intervener.This presumption will not apply in ‘exceptional circumstances’.  In future these third parties will also have to compensate other parties if they cause them to run up greater legal bills unnecessarily. This presumption will not, however, apply where a third party is invited by the court to intervene.
  6. The Government has decided that the use of ‘cost capping orders’ is to be significantly reduced. At present such orders, also called protective costs orders, are used by applicants for JR to prevent them having to pay the costs of the body against whom they are bringing proceedings where they (the applicants) lose their challenge. The effect of this is the alter the normal rule that the loser pays the costs of the winning party. Since the bodies challenged by JR are public bodies, the Government argues that this imposes an unfair burden on the taxpayer who in effect has to pick up the cost. The Government plans to limit the use of protective costs orders to very exceptional cases of public importance. This is also being taken forward in the Criminal Justice and Courts Bill 2014.  (Special rules will apply in environmental cases.)
  7. By making changes to the rule of Court Procedure, the Government intends to make applicants who take ‘weak’ cases to a second chance hearing (known as an oral renewal) pay for some of the legal bill encountered by the other side in the process of preparing their defence more often.
  8. Finally it plans to ensure that grants of legal aid are limited to JR cases that ‘have merit’.

In proposing these changes the Government asserts that the principle that individuals can challenge the legality of government action is still preserved. Nonetheless, public lawyers have been vocal in their hostility to these changes.

Written by lwtmp

May 31, 2014 at 12:42 pm

Prisoners’ Voting Rights: Supreme Court judgement

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The decision of the UK Supreme Court on Prisoners’ voting rights, published on 16 October 2013, seems to me to be rather more nuanced than much of the media coverage I have read and heard.

The case which reached the Supreme Court involved two appeals, one from England  (Chester) and one from Scotland (McKeoch). Only the Chester case invoked the European Convention on Human Rights and the Human Rights Act 1998. Both cases also raised a question of EU law.

The issue under EU law arose from the focus in the EU on the core concerns of ensuring equal treatment between EU citizens residing in Member States other than that of their nationality, and so safeguarding freedom of movement within the EU. However, eligibility to vote in Member States is basically a matter for national legislatures, and a matter for each individual legislature to determine. In any event, the EU legal principle of non-discrimination would still not be engaged. Convicted prisoners serving their sentence are not in a comparable position to persons not in prison. Thus, in both cases, the Supreme Court held that EU law did not apply.

As regards the European Convention on Human Rights and the Human Rights Act 1998, the Supreme Court noted that in a series of cases (Hirst (No 2) v UK, Greens v UK and Scoppola v Italy) the European Court of Human Rights (“ECtHR”) had held that a blanket prohibition of this nature is an indiscriminate restriction on a vitally important right and, as such, incompatible with Article 3 of Protocol No 1, the duty to hold free and fair elections.

Under the HRA, the Supreme Court is required to “take into account” decisions of the ECtHR, not necessarily to follow them. This enables the national courts to engage in a constructive dialogue with the ECtHR. However, the prohibition on prisoner voting in the UK has now been considered by the Grand Chamber of the ECtHR twice and, on each occasion, found to be incompatible with Article 3 Protocol 1. In these circumstances, it would have to involve some truly fundamental principle of law or the most egregious oversight or misunderstanding before it could be appropriate for the Supreme Court to refuse to follow Grand Chamber decisions of the ECtHR. The ban on prisoner voting is not, in the Supreme Court’s view, a fundamental principle of law in the UK, and the circumstances do not justify a departure from the ECtHR’s caselaw.

Thus contrary to some reporting, the Supreme Court has upheld the ECtHR’s view  that the UK’s blanket ban on voting rights is incompatible with the European Convention. The Supreme Court did not issue a declaration of incompatibility, however, because that is a discretionary remedy; the Court had already issued such a declaration; the Government was undertaking work to respond to the initial declaration; it was not for the Court to say how the Government should ultimately resolve the matter; and that therefore, being a discretionary remedy, the Court would not exercise its discretion in this case.

So the ball is still very much in the Government’s court.

The full judgement of the Supreme Court and a press release prepared by the Court are available at http://www.supremecourt.gov.uk/news/latest-judgments.html

Written by lwtmp

October 17, 2013 at 3:50 pm

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