Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 2’ Category

A big day in the Supreme Court

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Major cases raising fundamental constitutional issues are rare, which is why 24 Sept 2019 is a significant day. The supreme court ruled that the Prime Minister’s decision to prorogue Parliament for 5 weeks was unlawful.

For the Prime Minister, it was argued, in essence, that the prorogation of Parliament is an act which falls within the scope of the Prerogative (acts formerly taken by the monarch in person, now taken by Ministers). As an essentially political decision, it should not be capable of review by a court – in the technical language it was not ‘justiciable’.

The Supreme Court – sitting with 11 justices – ruled unanimously that it was possible for the courts to judicially review the exercise of prerogative power – to determine whether such exercise fell within the accepted boundaries for the use of such powers. In short, the review of the power to prorogue was a justiciable matter.

That alone did not mean that the Government had acted unlawfully. Prorogation is an important part of the Parliamentary calendar.  It brings one Parliamentary session to a close. Ministers then prepare a Queen’s Speech which sets out the Government’s legislative priorities for the coming 12 months. Members of the Supreme Court accepted that a prorogation for a short period was necessary, even though Parliament could not function during that period.

However, the justices accepted evidence (including evidence from the former Prime Minister Sir John Major) that in recent years prorogations tended to be for between 4 and 6 days.  That was the average amount of time needed to sort out the Queen’s Speech.

The key point about a prorogation is that it brings all the work that can be carried on in Parliament to a complete standstill. No Committees can work, no Parliamentary Questions can be answered. Prorogation is distinct from recess when Parliament does not sit (e.g. in holiday periods|) but other Parliamentary business does continue.

Thus the issue in the present case was whether a 5-week prorogation was appropriate.
On this the justices were unanimous. They held unequivocally that such a long prorogation prevented Parliament from exercising its constitutional function of holding the Government to account.
The fallout from this decision is far from clear.
The Speaker of the House of Commons has announced that Parliamentary business will resume on Wednesday 25 September 2019. Will the Government take any steps to counter this decision?
One effect of prorogation is that Bills going through Parliament at the time of prorogation fall, and have to be reintroduced or carried over into the following session. (Where there is a general election, ‘carry-over’ is not possible.) What will happen in this instance?
Looking to the longer term, was one of the problems here that we do not have a written constitution in the United Kingdom that might have clarified in a basic law the process for prorogation? There are certainly some influential voices being heard that the time is approaching when we should adopt a written constitution.
All the written submissions made to the Supreme Court have been published on-line – as have all the hearings in the Court. This case will be studied by lawyers and politicians for years to come, and will divide opinion.
You can find all the material relating to the case at
https://www.supremecourt.uk/watch/prorogation/judgment.html,
https://www.supremecourt.uk/cases/uksc-2019-0192.html
https://www.supremecourt.uk/brexit/written-case-submissions.html

Prisoners’ voting rights: recent developments

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For over a decade there has been a stand-off between the UK Government and the European Court of Human Rights on the question of whether prisoners should have a right to vote. The law in the UK is that they should not. The European Court of Human Rights took the view that a blanket ban was a denial of the right to vote provided for in the European Convention on Human Rights.

The Coalition Government got as far as publishing a draft Bill setting out a number of options for resolving the impasse (which included doing nothing) in 2013. I noted this in this blog in August 2014. Since then the issue has gone very quiet.

It appears that towards the end of 2016, the Government did issue an undertaking to the Council of Europe that is would do something by the end of 2017. Readers of this blog might be forgiven for not spotting that, in fact, the Government has recently done just that. Not a Bill, as many of us has been expecting, but in the form of a Statement to Parliament.

On November 2nd 2017, the Secretary of State for Justice said (in part):

[T]he Government has considered this issue carefully. We have decided to propose administrative changes to address the points raised in the 2005 judgment, while maintaining the bar on convicted prisoners in custody from voting.

First, we will make it clear to criminals when they are sentenced that while they are in prison this means they will lose the right to vote. This directly addresses a specific concern of the [in the original ECtHR] judgment that there was not sufficient clarity in confirming to offenders that they cannot vote in prison.

Second, we will amend guidance to address an anomaly in the current system, where offenders who are released back in the community on licence using an electronic tag under the Home Detention Curfew scheme can vote, but those who are in the community on Temporary Licence, cannot.

Release on Temporary Licence is a tool typically used to allow offenders to commute to employment in the community and so prepare themselves for their return to society. Reinstating the civic right of voting at this point is consistent with this approach…

These measures will see no changes to the criteria for temporary release, and no offenders will be granted release in order vote.

Our estimate is that these change to temporary licence will affect up to one hundred offenders at any one time and none of them will be able to vote from prison.

So, hey presto! No need for new legislation or amendment of the  Representation of the People Act 1983, but a simple change to Prison Service guidance.

The question this statement raises, of course, is whether this will be enough to satisfy the Council of Europe. My suspicion is that it may not, and that this will not resolve the issue once and for all. But it will probably be enough to kick the issue into the grass for a few more months – possibly longer.

The question of whether the European Court of Human Rights should have jurisdiction over this issue has recently been taken up in  book published by The Policy Exchange. In Human Rights and Political Wrongs: A new approach to Human Rights law Professor Sir Noel Malcolm argues that while Human Rights are very important, the way in which those rights have been interpreted and developed by the European Court of Human Rights has been inconsistent, and in some contexts has had the effect of undermining the authority of democratically elected governments. He argues that Human Rights should be limited to setting the boundaries of state power, and that decisions on whether particular policies or decisions are in breach of Human Rights should be done by domestic courts.

I see the publication of this book as the first step in putting the question of whether we have a separate British Bill of Rights back onto the domestic political agenda.

The Secretary of state’s statement is at https://www.gov.uk/government/speeches/secretary-of-states-oral-statement-on-sentencing.

Professor Malcolm’s book can be downloaded free at https://policyexchange.org.uk/

 

 

 

 

Constitutional conventions

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Constitutional conventions are an important features of the UK constitutional settlement. As the conventions are not exactly rules in the normal sense, it can on occasion be hard to know what they are and when they apply. In 2011, the then Coalition Government published a statement of Constitutional Conventions that had been drafted by the then Secretary to the Cabinet Sir Gus O’Donnell. Although the work had been started at the request of the former Prime Minister, Gordon Brown MP, it was thought to be particularly helpful to guide the Coalition Government, led by David Cameron and Nick Clegg. The book was published in October 2011.
Recent events in the House of Lords – where a draft Statutory Instrument (which was designed, as part of the Government’s Welfare Reform plan, to cut tax credits to those in work) were not approved by a majority of the Lords, despite being approved in the House of Commons – have thrown a new spotlight on these conventional rules. (They have also reopened the wider issue of the composition of the House of Lords and whether or not it should become an elected body.)
The specific issue – relating to the approval of the Statutory Instrument already approved in the House of Commons – is to be subject to a review led by Lord Strathclyde.
This incident emphasises the point that while the process of government usually ticks over in a fairly ordered way, the lack of detail written rules can on occasion lead to considerable controversy.

The Cabinet Manual setting out the main laws, rules and conventions affecting the conduct and operation of government is available at https://www.gov.uk/government/publications/cabinet-manual

Written by lwtmp

October 28, 2015 at 6:19 pm

Prisoners’ Voting Rights: the view of the European Court of Justice

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I have written before about the stand off between the UK Government and the European Court of Human Rights on the question of whether the UK’s policy of prohibiting any prisoner from voting is compatible with the right to vote set out in the European Convention on Human Rights. (See 5 December 2012, 17 Oct 2013 and 21 Aug 2014.)

Although the issue has been seen largely as a matter arising from the European Convention on Human Rights, the issue also raises a question of European Law – namely whether a total ban on voting infringes the rights of citizens to vote in elections for the European Parliament.

The question was raised in the UK in the Supreme Court in 2013 as one concerning the equal treatment as between EU citizens residing in Member States other than that of their nationality. However, that principle would not apply to UK Citizens being detained in UK prisons. 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,  the Supreme Court held on that occasion that EU law did not apply.

The issue has come back to the European Court of Justice in a case involving France: Thierry Delvigne v Commune de Lesparre-Médoc and Préfet de la Gironde Case C-650/13. (October 2015) Here the ECJ held that a Member State can maintain an indefinite ban on voting in European Parliament elections for certain nationals of that State, although such a ban must, be proportionate. In the case, Delvigne was convicted in March 1988 of a serious crime and sentenced to a term of imprisonment of 12 years. Under the (French) law in effect at the time, this resulted in a total loss of his civic right to vote. However, after release he could apply to have his right to vote reinstated. He did this in 2012, but his application was rejected.

Despite the fact that French electoral law was amended in 1994 to limit any voting ban to 10 years, the ECJ held that the original law was proportionate and would be upheld. This result was reached following analysis of  Articles 39 and 49 of the Charter of Fundamental Rights of the European Union.

There seem to be clear implications in this judgement for the UK. On the one hand, for those sentenced to substantial prison sentences, the position under the old law in France is arguably harsher than the law in the UK, where rights to vote are restored when a prisoner’s sentence is served. On the other hand, the position relating to those sentenced for shorter terms in the UK is arguably harsher than the position in France.

Of course, the ECJ ruling applies only to the right to vote in European elections. The wider limitations on prisoners’ right to vote, and the long-standing divergence of view between the ECtHR and the UK Government on the legal position in the UK, remain.

For details of the ECJ judgement see http://curia.europa.eu/juris/document/document.jsf?text=&docid=169189&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=242509

Written by lwtmp

October 15, 2015 at 3:35 pm

The changing constitution – abolition of the Select Committee on Political and Constitutional Reform

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Just over a year ago, (October 2014) I published a blog item here on a consultation by the Political and Constitutional Reform Select Committee of the House of Commons in which it explored the arguments for and against the adoption of a Written Constitution. It followed that with a rather anodyne report, published before the dissolution of the Coalition Government, suggesting that more work should be done on this.
It also suggested that the Committee should be reconstituted after the outcome of the 2015 Election was known.
Despite the fact that there is considerable discussion about constitutional change, particularly issues – such as English Votes for English Laws – which came out of the Scottish Referendum, the Select Committee itself has not been reconstituted.

For the Select Committee’s Final Report on this subject go to http://www.publications.parliament.uk/pa/cm201415/cmselect/cmpolcon/599/59902.htm
Under the title ‘Consultation on A new Magna Carta?’ it attaches, as an Annex, a draft accessible summary constitution, with options for reform, written by Professor Robert Blackburn of King’s College London. This is an interesting contribution to a much wider debate.
For more detailed discussion about constitutional developments you need to look at the work of the Constitution Unit, based in University College London. See http://www.ucl.ac.uk/constitution-unit/

Written by lwtmp

October 12, 2015 at 3:04 pm

Revolution in the Justice system?

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On 23 June 2015, the Lord Chancellor delivered a major speech on his vision for the development of the Justice system. Mr Gove is not shy of taking on existing established practices – witness his battles with the teachers when he was Secretary of State for Education under the Coalition Government.

In his speech, entitled What does a one nation justice policy look like? he argues that the justice system is in need of fundamental reform if is it to deliver access to justice to ordinary people.

A potentially very important difference between what he was trying to do in the world of education and what he now seeks to do to the justice system is that for the latter, much of the initiative for reform is coming from the judiciary itself. They see the need for better use of court facilities, fundamental investment in IT which would enable much legal work to be done without attendance at courts, support for new ideas – in particular in civil justice – endorsing proposals recently set out by Justice in its report Civil Justice in an Age of Austerity. (see this blog, entry for 5 May 2015)

First reactions to the Lord Chancellor’s speech can be heard in a special edition of the BBC programme Law in Action which was broadcast on the same day. The discussion – by Sir Stanley Burnton, Dame Hazel Genn and Keir Starmer – provides a useful basis for understanding what may start to unfold in the justice system over the next five years

What is absolutely certain is that anyone starting the study of law should be aware of what is in the pipeline – things are likely to change pretty quickly.

To read the speech go to https://www.gov.uk/government/speeches/what-does-a-one-nation-justice-policy-look-like

To hear the Law in Action Broadcast go to http://www.bbc.co.uk/programmes/b05zktnf#auto

The Centre for Justice Innovation, whose work is mentioned in the programme has a website at http://www.justiceinnovation.org/

Work of the Equality and Human Rights Commission: podcast with Nony Ardill

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The Equality and Human Rights Commission is the body given the statutory mandate to challenge discrimination, and to protect and promote human rights. As it states on its website:

“We live in a country with a long history of upholding people’s rights, valuing diversity and challenging intolerance. The EHRC seeks to maintain and strengthen this heritage while identifying and tackling areas where there is still unfair discrimination or where human rights are not being respected.”

To get a clearer idea about how the Commission goes about its work, I have been talking to Nony Ardill, a Senior Lawyer with the Commission. She provides a fascinating account of the ways in which the Commission works with other agencies to fulfill its (very challenging) mandate.

To hear the podcast, go to http://global.oup.com/uk/orc/law/els/partington14_15/student/podcasts/NonyArdill.mp3

To read more about the work of the Commission, go to http://www.equalityhumanrights.com/

Written by lwtmp

November 13, 2014 at 4:00 pm