Archive for the ‘Chapter 3’ Category
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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.)
- 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.
- 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.
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
In Chapter 3 of the book, I raise the question of whether voting in elections should be made compulsory (p. 28). I note that this is already the law in Australia.
The up-coming Australian general election has caused a number of commentators to revisit this issue. The BBC News website carried a very interesting piece on just this question. See http://www.bbc.co.uk/news/world-asia-23810381.
The article makes a number of points worth noting:
- compulsory voting has been the law for the best part of a century;
- turnout in elections is very high – around 94%
- but penalties for non voting are not severe – a small fine;
- and many people avoid voting by not registering to vote;
- thus the ‘real’ turnout is not as high as the headline figure suggests;
- that compulsory voting is the law in 22 other countries but the law is enforced in only 10 of them.
The article quotes arguments for and against the position in Australia.
There is no suggestion that compulsory voting will be introduced in the UK. But I think it is an issue that should at least be raised for public debate. What do you think?
The Queen’s Speech 2013 contains few measures that seem likely to impact directly on the English Legal system. The two most obvious candidates are:
1. Offender Rehabilitation Bill
This is designed to extend statutory supervision after release to offenders serving short custodial sentences, allowing probation providers to deal with the causes of re-offending. This would mean that all offenders released from prison will receive at least 12 months’ statutory supervision.
For sentences served in the community, the Bill would create greater flexibility for probation providers so that they are free to deliver innovative and effective interventions to tackle re-offending.
The main benefits of the Bill would be to:
- Reduce re-offending rates for the most prolific offenders.
- Support Government plans to open up probation services to a wide range of providers(including private and voluntary sector providers) through competition and develop use of a system of payment by results for providers
The Bill would provide for drug-abusing offenders to be required to attend treatment appointments, and expand the drugs that an offender can be required to be tested for from class A to class B.
The Bill would create a new rehabilitation activity requirement that can be imposed as part of sentences served in the community. This would provide a flexible requirement within which probation providers can require offenders to attend appointments or activities that support their rehabilitation.
2. Anti-social Behaviour, Crime and Policing Bill which contains a variety of measures including policies to tackle anti-social behaviour, forced marriage, dangerous dogs and illegal firearms used by gangs and in organised crime. It also includes measures to enhance the professional capabilities and integrity of the police, and continuing the process of modernising police pay and conditions.
3. Immigration Bill may have a significant impact on rights of appeal in immigration disputes.
In addition there are two draft Bill which will have an impact on the English Legal system, when enacted.
1 Draft Deregulation Bill, be published in draft for pre – legislative scrutiny. While many regulations are being scrapped and reformed either administratively or via secondary legislation, the main aims of this Bill are, in the Government’s words, to:
- · Reduce or remove burdens on businesses and Civil Society and facilitate growth
- · Reduce or remove burdens on public bodies, the taxpayer or individuals
- · Tidying up the statute book by repealing legislation that is no longer of any practical use.
2 Draft Consumer Rights Bill, designed to
- Give consumers clearer rights in law and to make sure that consumer rights keep pace with technological advances.
- Provide important new protections for consumers alongside measures to reduce regulation for business, all with the aim of making markets work better.
In May 2012, I outlined those features of the Queen’s speech which I thought would impact on the English Legal System. Here is my end of term report on those measures:
House of Lords reform, I said this was potentially the ‘big one’ in terms of constitutional change and political controversy. But my observation that ‘it is far from certain that sufficient political consensus will be created to make its enactment an inevitability’ proved accurate – it fell at the first fence and now seems firmly in the long grass.
1. The Children and Families Bill designed to amend the law on adoption and bring into law changes to the Family Justice system recommended by the Norgrove report, did not complete its Parliamentary passage and has been carried over into the 2013-2014 session.
2.The draft Local Audit Bill, which was designed to abolish the Audit Commission, got a pretty hostile reception from the ad hoc Parliamentary Committee that undertook a pre-legislative scrutiny of the draft. See http://www.publications.parliament.uk/pa/cm201213/cmselect/cmdraftlocaudit/696/69602.htm. However, the Government made it clear that it would proceed with the bill. See https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/192495/29073_Cm_8566_v0_4.pdf. A Local Audit and Accountability Bill has been announced in the Queen’s Speech 2013 to take this proposal forward.
1. Most important for the English Legal System, the Crime and Courts Act 2013 gives statutory authority for the creation of the National Crime Agency. It provides for the creation of a single family court, which will change the infrastructure currently in place. It also amends some of the current provisions relating to the making of judicial appointments and provides for the televising of some court proceedings.
2. The Enterprise and Regulatory Reform Act 2013 implements proposals which seek to ensure that more employment disputes are resolved by conciliation. It also abolishes the Competition Commission and Office for Fair Trading and replaces them with a Competition and Markets Authority.
3. The Electoral Registration and Administration Act 2013 aims to make it easier for people to register to vote.
4.The Groceries Adjudicator Act 2013 formally creates the new scheme for adjudicating disputes between consumers and the ‘big name retailers’ – another area of disputes taken from the courts. (There are over 60 industry adjudication schemes already in existence in the UK – many of them not well understood but doing work of resolving disputes that otherwise might have gone to courts). Although the Act did not receive Royal Assent until April 2013, Christine Tacon was appointed to the post in January 2013.
It is perhaps a consequence of Coalition Government that the passage of legislation is not as predictable as when a single political party is in Government. Even so, most of the key measures, apart from House of Lords Reform, have made progress. It should of course be noted that major policy changes – effected by legislation passed in previous years – came into effect. These include: the reform of legal aid; fundamental change to the health service; changes to social welfare and benefits.
The Commission, established in the early days of the Coalition Government, has now reported. The outcome does not give clear advice to Government.
Seven of the Commission’s nine members believe that, on balance, there is a strong argument in favour of a UK Bill of Rights on the basis that such a Bill would incorporate and build on all of the UK’s obligations under the European Convention on Human Rights, and that it would provide no less protection than is contained in the current Human Rights Act and the devolution settlements. Some of the majority believe that it could usefully define more clearly the scope of some rights and adjust the balance between different rights. For the majority as a whole, the most powerful arguments for a new constitutional instrument are what is called ‘the lack of ownership’ by the public of the existing Human Rights Act and the European Convention on Human Rights, and the opportunity which a UK Bill of Rights would offer to provide greater protection against possible abuses of power.
The two members are strongly opposed to this conclusion – Helena Kennedy and Philippe Sands. They believe that now is not the time to focus on a new UK Bill of Rights. They believe that the majority has failed to identify or declare any shortcomings in the Human Rights Act or its application by our courts. While they remain open to the idea of a UK Bill of Rights were they to be satisfied that it carried no risk of decoupling the UK from the European Convention on Human Rights, they fear that one of the principal arguments relied upon by the majority – the issue of public ownership of rights – will be used to promote other aims, including the diminution of rights available to all people in our community, and a decoupling of the UK from the European Convention on Human Rights.
Press reporting of the Commission’s report was pretty sketchy – not the subject of big headlines. The consensus seems to be that little action is likely to be taken in the short-term – it is one of those issues that divides the Coalition. However, in the run up to the 2015 General Election, commentators anticipate the Conservatives in particular returning to the attack, and arguing for closing off the existing routes to the European Court of Human Rights.
A topic which has excited considerable debate, both in and out of Parliament, is whether prisoners should have voting rights.
Current law in the UK is that those in jail don’t vote.
The issue has been raised in the European Court of Human Rights in a number of different cases. Article 3 of the First Protocol of the Europen Convention on Human Rights gives the right to free and fair elections.
In 2005, the Grand Chamber of the European Court of Human Rights (ECtHR) found in Hirst v UK (No 2) that the UK’s blanket ban on serving prisoners voting was in contravention of this provision in the Convention.
The Greens and MT v UK judgment, which became final on 11 April 2011, set a deadline of six months for the UK to bring forward legislative proposals to end the blanket ban, i.e. 11 October 2011.
However, action was further delayed because another case, this time from Italy, was to be decided by the Court. On 30 August 2011, the original deadline was extended to six months after judgment delivery in the case of Scoppola no. 3. The delivery of Scoppola No. 3, became final on 22 May 2012. Thus the six month period referred to in Greens and M.T. began to run on 22 May 2012. It expired on 22 November 2012.
The UK Government has actually argued quite successfully that the opposite to a blanket ban should not be all prisoners getting the vote. Indeed in Scoppola it was acknowledged that the UK argument, that there should be a considerable ‘margin of appreciation’ in implementation, was accepted.
The Court found that under Italian law only prisoners convicted of certain offences against the State or the judicial system, or sentenced to at least three years’ imprisonment, lost the right to vote. There was, therefore, no general, automatic, indiscriminate measure of the kind that led the Court to find a violation of Article 3 in the case of the UK. The restrictions imposed under Italian Law were not in controvention of the Human Rights Convention.
With this flexibility in mind, the Government has published a draft bill offering three options:
- no change to the law – i.e. retention of the blanket ban;
- ban for those sentenced to more than 6 months; or
- ban for those sentenced to more than four years.
In parliament itself, strong arguments have been heard that the UK Government should make its own mind up on these matters and that to allow prisoners vote would make some MPs ‘sick. Equally strong arguments have been heard that, actually, the Convention right guaranteeing the right to vote and the Court’s judgement that there can be much flexibility in how this right is protected is a sensible compromise.
Given recent Government statements about the importance of sentencing leading to rehabilitation and preventing recidivism, it seems to me surprising that the argument for keeping the current blanket ban is not really that strong. But I accept that, for some, this is a very controversial viewpoint. What do you think?
To read the Government proposals go to http://www.justice.gov.uk/news/features/prisoner-voting-rights.
The draft Bill is to be subject to review by a Joint Committee of MPs in the Commons and the House of Lords. It will report in 2013.
In the book (Chapter 3) I note various ways in the legislative process has changed over recent years. At present, however, there is no mention of a new process of post-legislative scrutiny that has been in place for the last 2 or three years.
The idea of post-legislative scrutiny is fairly simple. After a period following the enactment of a new Act of Parliament the question should be posed: is the Act working as it was intended to do?
The idea has been floating around academic circles for many years. The House of Lords Constitution Committee considered it in 2004. Things moved forward significantly when the former Labour Administration asked the Law Commission to consider the issue and how it could be turned into a practical reality.
Its report was published in 2006; the then Government’s reponse was published in 2008.
Since then there has been a programme of post-legislative scrutinies.
The key features of the programme are:
- not all Acts of Parliament are subject to scrutiny;
- where there is scrutiny, the review is undertaken by the relevant Departmental Select Committee – it is a process driven by back-bench MPs, taking evidence and reaching conclusions as they do in other inquiries they undertake;
- the scrutiny process is started by the preparation within the Government department concerned of a memorandum on the Act of Parliament concerned being presented to the Select Committee, who then invite wider observations and inputs from outside government on the Act’s operation.
The Law Commission’s report is at:http://lawcommission.justice.gov.uk/docs/lc302_Post-legislative_Scrutiny.pdf
The Government’s response is at: http://www.official-documents.gov.uk/document/cm73/7320/7320.pdf
For an example of a current post-legislative scrutiny exercise, see the Justice Select Committee’s inquiry into the operation of the Freedom of Information Act. In relation to this, evidence has been sought and obtained; the final report is being written.
For further information see:
The Ministry of Justice’s memorandum which formed the basis for the inquiry is at http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2010/foi/
Clearly at some point there needs to be an evaluation of the scrutiny process. Are lessons being learned from the process which can be fed back into the legislative process?
This Act of Parliament deals with a somewhat miscellaneous series of matters, but ones which had caused political controversy, where it was argued (and the Coalition Government had accepted) that the balance between the rights of the individual and the interests of the State was not right. (It had indeed been preceded by the Identity Documents Act 2010, which abolished measures relating to the introduction of identity cards, introduced by the previous Labour administration.) Among the measures included in the 2012 Act are:
• reducing the maximum period of pre-charge detention (without trial) for terrorist suspects to 14 days;
• deleting the DNA samples and fingerprints of more than 1m innocent people from police databases;
• deleting the DNA samples and fingerprints of more than 1m innocent people from police databases;
• abolishing a law to permit trials without juries in serious fraud cases;
• ending the fingerprinting of children in schools without parental consent; and
• introduction of a code of practice for CCTV and Automatic Number Plate Recognition systems
For more detail of these and other provisions go to http://www.homeoffice.gov.uk/media-centre/news/protection-of-freedoms and follow the links.
As well as ministerial changes there have been changes in two of the top judicial jobs.
Lord Phillips, who was the first President of the Supreme Court, reached retirement age this autumn. He is replaced as President, from 1 October 2012, by Lord David Neuberger – who was formerly the Master of the Rolls. See http://www.supremecourt.gov.uk/news/new-president-of-the-supreme-court.html.
The resultant vacancy as Master of the Rolls is filled by Lord John Dyson, currently a member of the Supreme Court. See http://www.number10.gov.uk/news/appointment-of-master-of-the-rolls/