“I believe that it should be a matter for parliament to decide, not a foreign court.”

Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

The biggest news of the week this week was the decision of the European Court of Human Rights in the Scoppola v Italy case; the latest in the long-running prisoner voting saga. The Court refused to overrule its 2005 decision in Hirst No. 2 but also found that proportionality does not require individual determination by a judge on a case by case basis. There was predictable anger from the tabloid press plus some more cogent articles, some of which have been set out below.

In the news

Prisoner voting

The European Court of Human Rights issued its long-awaited decision in Scoppola v Italy this week. The UK had been permitted to postpone its implementation of Hirst until this judgment was handed down and so it now has six months to do so. A number of blogs have posted on this topic.

Joshua Rozenberg wrote a piece in the Guardian this week before the judgment was announced, discussing the dialogue between the UK and Strasbourg and the role of the Commission on a Bill of Rights. Of the post-judgment commentary, see Adam Wagner’s comprehensive post for the UKHRB  here which sets out the reasoning and discusses the consequences for the UK of non-compliance, as well as suggesting a third way for the Government. Marko Milanovic has written a very thoughtful piece on the EJIL: Talk blog that is well worth a read. For those who would like to know what the tabloid papers have to say about the judgment but don’t actually want to read them, Obiter J has conveniently picked the most lurid headlines and included them in his blog here.

David Davis and Jack Straw have jointly written a bold piece in the Telegraph, declaring “we must defy Strasbourg on prisoner votes”. They dispute the assertion that because the UK has accepted the jurisdiction of the Strasbourg Court, it must obey all its decisions. They allege that there would be no penalties for non-compliance, stating that Britain cannot be forced to give prisoners the vote or to pay compensation to prisoners who sue the Government over this issue, and that the Court does not have the power to fine Britain for non-compliance. They also consider it unlikely that the UK would be expelled from the Council of Europe for non-compliance, citing the examples of Bulgaria, Moldova and Russia, who have not been expelled for much worse breaches of the Convention.

The Economist has also written on this issue as has Carl Gardner on the Head of Legal blog, which is recommended for those who want to know exactly what the judgment says and how it distinguished itself from Hirst. There is another article from the Guardian, this time after the judgment was handed down. This reveals that government sources have stated that a concession by the court giving each state discretion on how to implement the ban will allow them to report back every year for an indefinite period on how the process is going, thus allowing Cameron to dodge the issue for the duration of his time in Downing Street. Finally, Reuven Ziegler makes the case in the UKHRB for allowing prisoners to vote – recommended.

Justice and Security Bill this week?

The controversial Justice and Security Bill is likely to be published this week, possibly as early as Tuesday. The Government is looking to expand the use of “Closed Material Procedures” – secret court hearings – into the civil courts. We will of course be analysing the Bill; see Adam Wagner’s post for the background. A secret justice climb down? Perhaps not

What happened to peaceful protest?

David Mead has written an excellent article on the fact that the right to dissent and to protest has almost disappeared from the political map. He asks why the same respect is not accorded to the right to protest as to freedom of speech, noting in particular the amount of press coverage given to libel law and suggesting that this may be because libel law naturally affects newspapers directly. He also points out the beating the right to protest has taken, from Strasbourg (Austin v UK) as well as at home (Moos and McClure) and noted the thorny issue of finding physical space to hold a protest with the increasing commercialisation of formerly public land. Well worth a read.

Torture victims under detention

The Mulberry Finch Blog has posted this week on the holding of torture victims by the UK Border Authority (“UKBA”) and its failure to follow its own policy on this matter, suggesting that either the UKBA gets its act together and implements carefully thought out procedures or risk not only breaching domestic law, but also the European Convention on Human Rights.

Refugees and the meaning of “contrary to the purposes and principles of  the UN”

Joanna Buckley posts on the Supreme Court blog on the two cases heard this week concerning the interpretation and application of article 1F(c) of the 1951 Geneva Convention Relating to the Status of Refugees, which states that the provisions of the Convention will not apply to any person with respect to whom there are serious reasons for considering that “…he has been guilty of acts contrary to the purposes and principles of the United Nations.”  Watch this space.

Gay marriage

Geraldine Morris on the Halsbury’s Law Exchange blog discusses the backtracking of the Government on this issue, and noted the incongruity in the legislation treating civil partners in the same way as married spouses upon the breakdown of their relationship (further to the judgment in Lawrence v Gallagher [2012] 1 FCR 557) but not at the commencement of their relationship.

Next British judge in Strasbourg

The process of choosing a replacement for Sir Nicholas Bratza has begun, with the names and CVs of 3 candidates having been put forward – these are Raquel Agnello QC, Paul Mahoney and Ben Emmerson QC. The ECHR blog has posted on this as has Adam Wagner on the UKHRB. He notes that if MPs really wanted to improve democratic accountability, they would hold public appointment hearings where the British public could scrutinise the process and in the process become more knowledgeable about the Court and less susceptible to the claims made in papers such as the Daily Mail.

Dishonesty in entry applications

More from Mulberry Finch, this time on the ruling from an Upper Tribunal that, where an application for entry clearance is “marred by dishonesty” – whether in the applicant’s knowledge or not and even where the applicant is presently eligible for entry – it is not a disproportionate response for the Home Secretary to refuse the application, even in light of the Article 8 ECHR right to family life.

FOIA requests and the Iraq war

Panopticon has published a post on the recent decision in Plowden and FCO v Information Commissioner EA/2011/0225 and 0228 which concerned a FOIA request for the record of a telephone conversation that took place on 12th March 2003 between President Bush and Mr. Blair.  The Tribunal largely upheld the ICO’s decision notice, and ordered that part of the record should be disclosed.

And finally…

Hot off the presses is the first part of Charon QC’s excellent new Blawg Review, rounding up the best of UK legal blogging.

In the courts

Scoppola v Italy (No. 3) – 126/05 [2012] ECHR 868 (22 May 2012). ECtHR Grand Chamber rules that automatic and indiscriminate disenfranchisement of prisoners is unlawful but that it is up to individual states how to implement changes where such a ban exists.

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UKHRB posts

• The case for letting prisoners vote – Reuven Ziegler May 24, 2012 1 Crown Office Row
• Police denied TV footage of Dale Farm evictions May 24, 2012 Rosalind English
• Time extended for appeals under Extradition Act May 23, 2012 Rosalind English
• Why no public appointment hearings for UK’s new European Court of Human Rights judge? May 23, 2012 Adam Wagner
• Don’t rely on human rights in a dismissal claim May 22, 2012 Martin Downs
• European Court of Human Rights retreats but doesn’t surrender on prisoner votes May 22, 2012 Adam Wagner
• Pssst… no secret hearings in naturalisation cases May 22, 2012 Isabel McArdle
• Anemometers and wind farms once more: PINS now win the day May 21, 2012 David Hart QC
• Convention should not be a basis for demanding unnecessary public inquiries – Court of Appeal, May 21, 2012 Rosalind English
• A secret justice climb down? Perhaps not May 21, 2012 Adam Wagner

Last Tuesday saw the latest episode in the prisoner voting legal saga with the European Court of Human Rights’ Grand Chamber’s judgment  reversing the Chamber judgment which found Italy’s automatic ban on voting for prisoners serving over 3 years in prison (and a lifetime ban with the possibility of future relief for those sentenced to more than 5 years) in breach of Article 3 of Protocol 1 to the European Convention on Human Rights.

Adam Wagner has compared  the prisoner voting issue to a ping-pong ball in a wind tunnel, noting that ‘the ball is now back on the UK’s side of the table’. Indeed, the UK must still allow at least some prisoners the vote, as required by the 2005 judgment in Hirst v UK (No.2) and the 2010 judgment in Greens & MT v UK.  Over at EJIL: Talk!, Marko Milanovic rightly accounts for the unholy mix of law and (inter)national politics that has generated the Grand Chamber’s unprincipled judgment. Indeed, as Carl Gardner suggests on the Head of Legal blog all that logically remains of the Hirst judgment is that automatic disenfranchisement of prisoners that are sentenced for less than 3 years (probably) breaches the convention.

The debate in this country has unhelpfully tied together concerns that the Strasbourg Court is exceeding its competency with the substantive question, namely whether prisoners ought to have the right to vote. This conflation was most evident in the House of Commons Debate last February. Indeed, reflecting on Tuesday’s judgment, the Telegraph states that ['t]his is no longer about prisoner votes but national sovereignty.’

So let us imagine that, rather than in Strasbourg, the ruling had been made in Parliament Square, by the UK Supreme Court: indeed, courts in South Africa, Canada and post-British Hong Kong have handed down judgments annulling state legislation disenfranchising prisoners. While a global consensus has yet to emerge (the clearest outlier being the United States) disenfranchisement has become a suspect practice and, as my full-length paper on the subject suggests, rightly so.

Civic death

Britain has thankfully moved from a Victorian era perception of “civic death” and of convicts as “slaves of the State” whose deprivation of liberty entails revocation of all (other) rights. Convicts are instead increasingly perceived as rights-bearers who retain after their conviction all the rights “which are not taken away either expressly or by necessary implication”. Restrictions on the exercise of rights that are not an inevitable consequence of lawful detention, like disenfranchisement, thus require independent justifications.

Those who support disenfranchisement as a regulatory measure frequently argue that it is a societal reaction to breaches of the ‘social contract. However, if law-abidance becomes a voting qualification, then contractarians may seem arbitrary when they support selective disenfranchisement of law breakers. Moreover, the legitimacy of punishments, arguably, depends on the legitimacy of political processes that produce and enforce criminal law which, in turn, depends on citizens’ ability to participate equally in choosing representatives who decide which behaviour to outlaw, which individuals to prosecute, and which punishments to impose.

Concern is also raised that convicts possess negative character traits and that the body politic should be protected from corruption, immorality, and untrustworthy behaviour. However, in the twenty-first century, universal suffrage suggests that voters are a heterogeneous lot, and possess diverse personal traits; voting eligibility is based on political equality, rather than on particular moral virtues.

An additional punishment

Fundamentally, disenfranchisement follows a criminal conviction and should first and foremost be viewed an additional punishment. As such, disenfranchisement is more likely to exacerbate feelings of marginalization and alienation and inhibit re-integration into society, negating possible rehabilitative effects of other punishments. While incapacitation generally aims to prevent convicts from committing future offenses, paradigmatically by incarceration which limits their interaction with general society, no correlation has been proven between committing non-electoral offenses (the vast majority of imprisonable offences), and propensity to commit electoral offenses; moreover, prisons provide surveillance conditions which may decrease the likelihood for electoral offences.

The case for disenfranchisement is thus essentially one about retribution; this is where the Grand Chamber has (mis)applied the proportionality and individuality requirements, which require taking into account both the gravity of the offence and the personal circumstances of the offender; automatically tying disenfranchisement to sentences of more than 3 years, as the Italian legislation does, is impersonal and arbitrary.

Cutting off thieves’ hands

I want to argue, however, that even if disenfranchisement can be shown to satisfy one or more of the penal goals considered above, it is a punishment that a liberal democracy like Britain ought not to impose due to its adverse effects and normatively flawed nature. Despite the direct link between stealing televisions and cutting off thieves’ hands, physical mutilation is considered abhorrent. Similarly, even if it can be shown that the infliction of torture as a punishment is effective, the imposition thereof is prohibited in widely ratified international treaties. On this side of the Atlantic, the use of the death penalty is proscribed even in the most heinous cases before the international criminal courts. Penal systems which display disrespect, indignity or degradation are objectionable, because these are intrinsically inappropriate ways for societies to treat their members.

Disenfranchisement degrades convicts by intentionally denying them political rights, which they previously possessed, and which are retained by all other mentally competent adult citizens. It arguably institutionalizes a double polity: the first, consisting of fully enfranchised, politically equal citizens, rules over the second, consisting of the disenfranchised. As the post-Apartheid South African Constitutional Court articulated ’[t]he vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts.’ Denying prisoners their right-to-vote amounts to partial exclusion from their political communities, on either a temporary or permanent basis, and they are effectively unable to join an alternative community.

Disenfranchisement harms not only individuals, but also marginalized groups which are over-represented amongst the disenfranchised; it may exacerbate pre-possessed feelings of alienation and distrust of institutions among convicts who belong to such groups. Disenfranchisement may also skew political processes by distorting group representation (as it arguably did in a few election campaigns in the United States, most notably the 2000 Bush v. Gore Florida fiasco), and by shutting out convicts, a group most adversely affected by society’s most coercive power. Incarcerated convicts are a particularly unpopular ‘discrete and insular’ minority for whom voting is pertinent: prisoners are no politician’s constituents, and are unlikely to have other groups vouch for them, while the interests of Prison authorities will often clash.

The ins and the outs

Finally, disenfranchisement seems like a paradigmatic case of the ‘ins’ (parliamentary majorities) excluding the ‘outs’ (convicts) from the political game. The Canadian Supreme Court held that ‘it is precisely when legislative choices threaten to undermine the foundations of the participatory democracy…that courts must be vigilant’.

Defending the rights of convicts is hardly a popular task. Yet, defending the right-to-vote of convicts entails defending democratic processes that label individuals as convicts by proscribing their acts and permit States to inflict punishments. Convicts’ disenfranchisement is a hurdle on the path towards the democratic project’s successful completion. It can and should be removed.

BSkyB and another, R(on the application of) v Chelmsford Crown Court [2012] EWHC 1295 (Admin) – read judgment

The police failed to satisfy the court that their need for footage taken by TV organisations was likely to be of substantial value to criminal investigations and therefore would be a justified interference with the rights of a free press under Article 10 of the Human Rights Convention.

Sky, BBC, ITN etc. succeeded in quashing an order to produce of 100+ hours of video footage to Essex Police of  the Dale Farm protesters on the grounds that there were no “reasonable grounds” for believing that the footage of over 100 hours included material likely to be of substantial value to the investigation.

Background facts

After the Dale Farm evictions and the disorder that ensued, the police sought an order for the recordings taken by the claimant organisations to help identify those who had committed indictable offences when attempting to prevent the eviction.  They submitted that it was necessary, not least for the prevention of similar disorder on future occasions, to identify as many as possible of those who committed indictable offences in attempting to frustrate the lawful enforcement procedures. Production orders were duly made by Chelmsford Crown Court, defendant in this action. The claimants applied for judicial review of the production orders made against them, with the police joining the proceedings as an interested party.

The media organisations submitted that it was a speculative exercise and there had been insufficient evidence for the judge to conclude that the recordings were likely to be of substantial value to the police investigations under the Police and Criminal Evidence Act 1984 Sch.1 para.2(a)(iii), and therefore the orders constituted an unjustifiable interference with their right to freedom of expression under Article 10. They contended, in particular, that  there had been an increasing number of police applications for wide-ranging production orders in circumstances of this kind:

Reference was made, for example, to student protests in 2010 and the notorious riots which took place in August 2011. There is widespread concern that such applications are being made, impermissibly, on an unfocused and scattergun basis. This case is said to provide an example where the production orders sought did not relate to specific indictable offences, alleged to have been committed at particular times and at particular places, but rather to “fishing” for any evidence there might be of such offences occurring over the many hours of visual recording.

The judgment

The default position was the claimants’ right to freedom of expression. Therefore the burden was on the police to demonstrate that the degree of interference and the wide scope of the production sought was necessary and proportionate because of the substantial value attaching to the recordings in the context of the investigation.   Indeed, both under PACE and the Convention, in seeking material from the press for this purpose

There is a burden to be discharged and disclosure orders against the media, intrusive as they are, can never be granted as a formality.

Whilst there was clearly a real public interest in tracing any of those persons who were involved in public disorder or violence, that had to be set against the level of interference with the claimants’  rights under Article 10 rights.

A “close and penetrating examination” of the facts advanced by way of justification is required (Lord Hope in R v Shayler  [2002] UKHL 11). Contrary to this, the judge below, in granting the production orders to the police, had taken a “compendious, not to say formulaic”, approach towards his deliberation on the access conditions. No reasons of substance are given as to why any of this footage, let alone all of it, would be of substantial value to the outstanding police investigations. There was nothing to justify such his conclusion that access should be given to this material:

There was no intense focus upon, or scrutiny of, any evidence of substantial value, because there was none. There was no material to enable the judge to carry out the necessary balancing exercise [of public interest versus the claimants' Article 10 rights].

Further, the judge had failed to give any sufficient weight to the inhibiting effect of production orders on the press.

The police’s reluctance to reveal what information they had meant that the media organisations were denied a fair opportunity to demonstrate why their recordings were unlikely to be of any assistance. There had to be cogent evidence as to what the footage was likely to reveal, how important such evidence was to carrying out the investigation, and why it was necessary and proportionate to order the intrusion by reference to other potential sources of information. That burden had not been discharged, and accordingly the judge was unable to justify ordering disclosure against the claimants and the production orders were quashed.

Related posts:

• Peace campaigner evicted from Parliament Square using new laws
• Analysis: Occupy London loses final eviction court challenge
• The law should not become “over precious” about human rights, says the Divisional Court
• Climate Camp protesters did not threaten breach of the peace, says High Court
• Blow to Parliament Square protest camp

Lukaszewski and others, R (on the application of Halligen) v Secretary of State for the Home Department [2012] UKSC 20 - read judgement

The Supreme Court has ruled that there should be a discretion in exceptional circumstances for judges to extend time for service of appeals against extradition, where the statutory time limits would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process under Article 6(1) of the Human Rights Convention

The following report is based on the Supreme Court’s press summary. A full analysis of the case will follow shortly.

Background facts

Lukaszewski (“L”), Pomiechowski (“P”) and Rozanski (“R”) are Polish citizens who are each the subject of a European Arrest Warrant (“EAW”) issued by the Polish court. Each is wanted in order to serve an existing sentence. L is wanted, in addition, to stand trial on ten charges of fraud. The fourth appellant, Halligen (“H”), is a British citizen whose extradition is sought to the USA under Part 2 of the Extradition Act 2003 (the “Act”) to face allegations of wire fraud and money laundering. All four appellants were arrested and brought before Westminster Magistrates’ Court. L, P and R’s extradition were ordered on (respectively) 28th January 2011, 2nd March 2011 and 4th March 2011. H’s case was sent to the Secretary of State for her to decide whether H should be extradited. On 22nd December 2010, H’s extradition was ordered by the Secretary of State, and the order and a letter setting out the Secretary of State’s reasons were sent by post and fax (at either 15.48 or 16.48) to H’s solicitors on that same day. All four appellants were remanded in custody at HMP Wandsworth pending extradition. The permitted time-period for giving notice of appeal against an extradition order was 7 days in the case of L, P and R, and 14 days in the case of H.

L, P and R were each assisted by a prison officer working in the legal services department at HMP Wandsworth to complete a notice of appeal. The legal services department faxed the notices of appeal to the Administrative Court for filing and stamping, which faxed back a copy of the sealed front page to the legal services department. The legal services department then faxed to the Crown Prosecution Services (“CPS”), as legal representatives of the judicial authority of the state requesting surrender, a copy of the sealed front page together with a cover sheet. In the case of each of L, P and R, all this occurred within the 7-day permitted period. However, in each case, the CPS was not served with a full copy of the notice of appeal, sealed or unsealed, until after the 7-day time limit had expired. The High Court held it had no jurisdiction to hear the appeals. A notice of appeal had to be both filed and served within the non-extendable permitted period, and must (a) identify the appellant, (b) identify the decision against which he seeks to appeal, and (c) set out at least the gist of the basis on which the appeal is sought to be presented. Accordingly, the purported notices of appeal were invalidly constituted and served out of time.

H’s solicitors prepared a notice of appeal, attaching grounds of appeal, on 23rd December 2010. The notice of appeal was filed and stamped on 29th December 2011, well within the 14-day permitted period which expired at midnight on 4th January 2011. However, only on 5th January 2011 did H’s solicitors send the notice of appeal to the CPS by fax and to the Home Office by post (reaching the latter on 6th January 2011). H himself had written from prison by fax to the Home Office on 29th December 2010 asking them to “accept the letter as notice & service of my intent to appeal that decision” and stating that he had instructed solicitors for that purpose. The High Court held it had no jurisdiction to hear H’s appeal, that H’s letter of 29th December 2011 did not constitute a valid notice of appeal, and the Secretary of State should be treated as having informed H of her decision on 22nd December, not 23rd December, 2011, so that the purported notice of appeal was in any event served out of time.

All four appellants appealed the decisions of the High Court to the Supreme Court, which allowed the appeals unanimously. Lord Mance gives the leading judgment of the Court. Lady Hale gives a separate concurring judgment.

The Court’s reasoning

The requirement under the Act that a notice of an appeal be given within the relevant permitted period meant that it had to be filed in the High Court and served on all respondents to the appeal within such period (following the decision of the House of Lords in Mucelli v Government of Albania [2009] UKHL [5], [17]. However, a generous view should be taken of this requirement, bearing in mind the shortness of the permitted periods under the Act and that what really matters is that an appeal should have been filed and that all respondents be on notice of this, sufficient to warn them that they should not proceed with extradition pending an appeal [18]. In the cases of L, P and R, the irregularity involved in the absence of pages following the sealed front page of their notices of appeal was capable of cure. The CPS, having received in time the sealed front page of each notice of appeal, can have had no difficulty in identifying the decisions being appealed. It would be disproportionate if the practice followed by the court and the prison legal services department should lead to the appellants losing their right of appeal [19].

The Court regards H’s letter as notice to the Secretary of State of an appeal within the Act, albeit that the letter was highly irregular in its form [20]. However, even if it is accepted that H’s solicitors only received the relevant fax from the Secretary of State at 16.48, there was no basis for deeming the fax to have been received the following day. It follows that no notice of an appeal was given to the CPS within the permitted period, and H’s appeal is on its face impermissible as against both respondents [21]. In these circumstances, the question for the Court is whether the apparently inflexible time limits for appeals within the Act are subject to any qualification or exception [22].

Under Article 6(1) of the Human Rights Convention, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law in the determination of his civil rights and obligations or of any criminal charge against him. The Court is satisfied that extradition does not involve the determination of a criminal charge [31]. However, H, as a UK citizen, enjoyed a civil right to enter and remain in the UK as and when he pleased [32]. Proceedings under the Act, in that they may affect H’s freedom to remain in the UK, at least for the duration of foreign extradition proceedings, involve the “determination” of that civil right [32]. It follows that the extradition proceedings against H fall within Article 6(1) [33]. In the case of a UK citizen, the statutory provisions concerning appeals can and should be read (pursuant to the obligation of conforming interpretation under section 3(1) of the Human Rights Act 1998) as being subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process under Article 6(1).

Accordingly, the Court remitted each appeal against extradition to the High Court to be heard there.

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• BEWARE statutory time limits to appeal: if you are late, you are out
• No extradition for Shrien Dewani – for now
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Bratza is off

The Guardian reported yesterday that “MPs aiming to claw back powers from Europe have secretly interviewed candidates to become Britain’s next judge at the European court of human rights”. Oliver Heald MP said that a group of MPs from the three main political parties met the 3 candidates, Raquel Agnello QC, Paul Mahoney and Ben Emmerson QC. The aim is “to improve democratic accountability”.

What would really improve democratic accountability is to hold such meetings in public, and broadcast them online. Currently, the UK public  knows frighteningly little about how the Strasbourg Court works in practice. This is hardly surprising given that it is regularly misrepresented in the popular press, for example the Daily Mail and Telegraph’s recent uncritical coverage of a report which wrongly stated the UK loses 3 out of 4 cases there (the real figure is about 1 in 50).

Contrary The Sun’s claim that they are “unelected dictators”, European Court of Human Rights judges are elected – see my previous post for the details. This is also in stark contrast to our domestic judges, which are usually appointed by committee and are almost impossible to sack.

The current recruitment round is to replace Sir Nicolas Bratza as the UK’s judge at the court. As Joshua Rozenberg has reported, Emmerson is the clear frontrunner, given his stellar reputation as a barrister and judicial experience in the High Court. This seems to be accepted by all commentators. Why not give the public an insight into why?

In the United States, Supreme Court Justices go through a rigorous public confirmation process after they have been nominated by the President. Some, such as one of George W. Bush’s nominations Harriet Miers, don’t survive under the pressure.

It is quite wrong for MPs to complain that the European Court of Human Rights is opaque and distant, whilst at the same time failing to allow the public to scrutinise every stage of the UK’s judicial appointment process. It doesn’t happen very often, and it is not too late to open up the process to the public who are, as we are constantly reminded, the ones who have to live with  rulings from Strasbourg.

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Related posts

• Bratza bites back
• Be careful what you wish for? UK takes over in Strasbourg
• British judge to head European Court of Human Rights
• European Court of Human Rights retreats but doesn’t surrender on prisoner votes

Mattu v University Hospitals of Coventry and Warwickshire NHS Trust - read judgment 

For a government much divided about rights of employees and the Beecroft Report that proposes curtailing them, some relief is provided by this Court of Appeal ruling, a further blow to those who have argued that Article 6 can be deployed against their employers.

The judgment represents the latest round in the saga of Dr Mattu’s dispute with his former employers which commenced with his suspension in 2002 and included an unsuccessful attempt to force the Trust to prevent disciplinary proceedings and then a challenge to his dismissal.The Court unanimously concluded that the procedure by which Dr Mattu was dismissed did not attract the protection of Article 6 as an employer who dismisses with or without the benefit of a formal hearing is not determining the employee’s civil rights. Rather the employer is exercising a contractual power. The disciplinary proceedings of an employer and a decision to dismiss summarily may give rise to civil rights, namely proceedings for unlawful dismissal and unfair dismissal and those concerned with professional and regulatory standards but they do not determine such rights. In those circumstances Article 6 will be engaged before the Courts, Tribunals and Regulatory Panels but not in disciplinary proceedings before an employer. 

Background Facts

Dr Raj Kumar Mattu was a consultant in non-invasive cardiology and general medicine employed by the Defendants. He also had an Honorary Research post at Warwick University.

Disciplinary proceedings against Dr Mattu had continued for six years until in April 2008 when he received a six month first warning. Through most of this period he had been suspended. Unsurprisingly, the Trust was then was confronted with the problem that he required re-skilling. However, the two sides failed to reach agreement about an action plan, in part because Dr Mattu believed he also required six month academic re-skilling in addition to his clinical re-skilling and that this should be completed in the US.

This culminated in 3 charges being made against Dr Mattu that: he was failing to comply with reasonable instruction concerning re-skilling; that he had made disclosures to the press which were false; and he misrepresented the extent of his illness at a time when he was off sick for ill-health.

A hearing was conducted by the Chief Executive of the Trust which concluded that he was guilty of gross misconduct and he was summarily dismissed. His appeal, before a panel of three persons (none of them employed by the Trust) dismissed his allegations.

The Claim

Dr Mattu sought to argue that Article 6 applied to his circumstances and he was entitled to an independent and impartial tribunal which (the Court of Appeal agreed) the Chief Executive of the Trust was not (even the appeal had the problem that they were largely conducting a review exercise).

Dr Mattu did not rely on the argument that the findings of the Trust would have a substantial influence on any GMC proceedings as to whether he could continue to practise as a doctor as per R (on the application of G) v The Governors of X School [2011] UKSC 30. Rather he sought to argue that a decision to dismiss him would effectively determine his right to work in his chosen profession and no subsequent scrutiny by a court or Tribunal could remedy this as they could not revisit the facts. Alternatively he argued that the right to enjoy a good reputation was a civil right and this was impugned by the Trust.

The Decision

While all the judges agreed that Article 6 did not apply for the reasons mentioned above, Sir Stephen Sedley preferred not to assent to more detailed reasoning.

However, Stanley Burnton LJ went on to doubt (with Elias assenting) the obiter remarks by Smith LJ in Kulkarni v Milton Keynes Hospital NHS Foundation Trust [2009] EWCA Civ 789 that,” Article 6 is engaged where an NHS doctor faces charges which are of such gravity that, in the event they are found proved, he will be effectively barred from employment in the NHS (at Para 67)” on the basis that they were an invitation to uncertainty and costs. .

Burnton LJ does not explicitly engage with the reputation argument but states he agrees the judgment of Elias LJ who does. The latter concludes that the Trust in this case was not determining any right to reputation but was exercising its contractual powers. Dr Mattu’s reputation may have been damaged as a result of the decision but it was not determined by it.

He also agreed with Blair J in Puri  (see our post )that in domestic law there is no general right to reputation of the kind replied up by Dr Mattu and Article 6 cannot create such a right.

They also concurred that any court would not readily imply a term into a contract which would limit the power of the court to determine whether or not there has been a breach of contract.

Those concerned only with fundamental rights and freedoms need read no further. Readers at the coalface of the NHS or in employment law will note that the appeal also determined the “categorization issue.”This is the problem arises where a disciplinary procedure provides for different procedural safeguards depending on the category of presenting problem. In this case, the Trust decided that the allegations did not concern professional misconduct and so they were not required to seek independent professional advice during the investigation and the Chief Executive did not have the benefit of a medically qualified member independent of the Trust when he deliberated as to whether to dismiss Dr Mattu. By the time of the appeal only the classification of the allegation concerning his refusal to comply with reasonable instructions concerning the re-skilling process was in issue. A majority of the Court of Appeal decided that this was not a matter of professional misconduct.

The Court’s Reasoning

“Categorisation” problems arise frequently and judgments on the subject are scrutinised closely by practitioners.

In analysing the judgment it is worth noting again that Stanley Burnton LJ stated that he entirely agreed with the judgment of Elias LJ. Taking that as a starting point, it would appear that it was part of the ratio of the judgment that the Court of Appeal disagreed with the analysis of Andrew Smith J when he dealt with a categorization problem in Hussein v Surrey and Sussex Healthcare NHS Trust [2011] EWHC 1670.

In that case the Court had decided that a contract could (and in that case did) give the discretion to the Trust to decide the category of allegation themselves – which discretion they had to exercise reasonably. Elias LJ noted that the argument that, “it is for the authority to decide under which category a case falls” failed in Skidmore and the Judgments of all three Judges proceeded on the basis that it was a matter for the Court to decide.

In this case both Stanley Burnton and Elias LLJ were fortified in their opinion that the allegations against Dr Mattu did not concern professional misconduct by the concurring conclusions of the Appeal Panel (who were independent of the Trust).

Elias LJ and Sir Stephen Sedley agreed that professional misconduct should not always be equated with clinical misconduct but Sir Stephen was alone in finding that that which the Trust was concerned required the input of a Doctor as his refusal to co-operate with the re-skilling plan was conduct and it was professional because it concerned an aspect of his job, namely research

Comment

Although this was one more skirmish in The Wars of the HC [90] 9 Succession between Doctors and NHS trusts about what procedural safeguards they are entitled to if investigated, suspended or dismissed for misconduct since the introduction of “Maintaining High Professional Standards in the Modern NHS” (MPHS) in 2005 http://this looks like the end of the road for arguments that Article 6 is engaged in dismissal procedures.

Whilst it might still be possible to argue that the R (on the application of G) v The Governors of X School [2011] UKSC 30 test applied in a case, it is difficult to think what that might be given the fact that the set of facts in  Re G was so strong and yet it was still found that the connection was not strong enough because of the finding that the ISA would arrive at its own independent judgement.

Ingenuity of a high order would be required.

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CASE OF SCOPPOLA v. ITALY (No. 3)(Application no. 126/05) – Read judgment / press release / press release on UK implications

The Grand Chamber of the European Court of Human Rights has ruled that states must allow for at least some prisoners to vote, but that states have a wide discretion as to deciding which prisoners. This amounts to a retreat on prisoner votes, but certainly no surrender. As I predicted, the court reaffirmed the principles set out in Hirst No. 2, that an automatic and indiscriminate bans breach the European Convention on Human Rights, but also reaffirmed that it was up to states to decide how to remove those indiscriminate bans.

I have compared the prisoner voting issue to a ping-pong ball in a wind tunnel. Today’s ruling means that the ball is now back on the UK’s side of the table.

Although Scoppola is a case which arose in Italy, the decision is of critical important to the UK for two reasons. First, the Court has made clear to the UK Government that it now has six months from today to bring forth legislative proposals which will end the blanket disenfranchisement of prisoners – see the Court’s helpful press release which explains the effect on the UK. Secondly, the Grand Chamber has now clarified the basic outline of how it expects states to comply with the original prisoner votes ruling, also of the Grand Chamber, in Hirst No. 2. For the full background, see my post from last week or Joshua Rozenberg’s excellent article on Guardian.co.uk.

Retreat but no surrender

The Grand Chamber reversed the Court’s Chamber’s ruling in Scoppola No. 3, on the basis that a life-long ban on certain prisoners voting still fell within Italy’s wide margin of appreciation to decide which criminals are allowed to vote. In short, because some Italian prisoners are allowed to vote, Italy does not have an “automatic and indiscriminate” ban which the Court rejected in Hirst No. 2. This was because it was applied only in connection with certain offences against the State or the judicial system, or with offences which the courts considered to warrant a sentence of at least three years.

Importantly, the Grand Chamber has now clarified its until now somewhat contradictory position on what states must do to ensure they do not breach Article 1 of Protocol 3 of the European Convention on Human Rights, the obligation to “hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature“.

It chose not to deviate from the decision in Hirst No. 2, as the UK had argued for. Indeed, the UK’s argument received short shrift; see paragraph 93 to 96. The Grand Chamber stated that there was even more reason now to support its 2005 decision:

93. In its observations, the third-party intervener affirmed that the Grand Chamber’s findings in the Hirst (no. 2) case were wrong and asked the Court to revisit the judgment. It argued in particular that whether or not to deprive a group of people – convicted prisoners serving sentences – of the right to vote fell within the margin of appreciation afforded to the member States in the matter.

[...]

95. It does not appear, however, that anything has occurred or changed at the European and Convention levels since the Hirst (no. 2) judgment that might lend support to the suggestion that the principles set forth in that case should be re-examined. On the contrary, analysis of the relevant international and European documents… and comparative-law information… reveals the opposite trend, if anything – towards fewer restrictions on convicted prisoners’ voting rights.

As to the famous ‘margin of appreciation’, that the right of states in certain situations to decide for themselves how to incorporate controversial rulings involving social policy, the court affirmed – indeed, following Frodl v Austria, effectively put back in place – the principle that states should be able to decide for themselves how to remove indiscriminate bans on prisoners voting. These are the crucial paragraphs, and forgive me for quoting at length as they are important (emphasis added):

In addition, according to the comparative-law data in the Court’s possession (see paragraphs 45-48 above), arrangements for restricting the right of convicted prisoners to vote vary considerably from one national legal system to another, particularly as to the need for such restrictions to be ordered by a court…

102. This information underlines the importance of the principle that each State is free to adopt legislation in the matter in accordance with “historical development, cultural diversity and political thought within Europe, which it is for each Contracting State to mould into their own democratic vision” (see Hirst (no. 2) [GC], cited above, § 61). In particular, with a view to securing the rights guaranteed by Article 3 of Protocol No. 1 (see Hirst (no. 2) [GC], cited above, § 84, and Greens and M.T., cited above, § 113), the Contracting States may decide either to leave it to the courts to determine the proportionality of a measure restricting convicted prisoners’ voting rights, or to incorporate provisions into their laws defining the circumstances in which such a measure should be applied. In this latter case, it will be for the legislature itself to balance the competing interests in order to avoid any general, automatic and indiscriminate restriction. It will then be the role of the Court to examine whether, in a given case, this result was achieved and whether the wording of the law, or the judicial decision, was in compliance with Article 3 of Protocol No. 1. 

In reestablishing the wide margin of appreciation for states, the Court rolled back on its much-criticised decision in Frodl v Austria. It did so by, first, limiting the conclusions in that case to the particular situation in Austria (para 87), but also rejected the notion that a judge must decide which prisoners to vote on a case-by-case basis:

9.  That reasoning takes a broad view of the principles set out in Hirst, which the Grand Chamber does not fully share. The Grand Chamber points out that the Hirst judgment makes no explicit mention of the intervention of a judge among the essential criteria for determining the proportionality of a disenfranchisement measure….While the intervention of a judge is in principle likely to guarantee the proportionality of restrictions on prisoners’ voting rights, such restrictions will not necessarily be automatic, general and indiscriminate simply because they were not ordered by a judge.

So, the UK now has 6 months to “bring forward legislative proposals” to remove the indiscriminate ban on prisoners’ voting. It now seems clear that the UK could take a very minimalist approach as to which prisoners receive the vote, for example only those serving 6 month sentences or less, and still be compliant with the Hirst No 2 ruling.

What if the UK does not comply?

In short, it will be expensive. It is now almost 7 years since the ruling in  Hirst No 2, which by the terms of the Article 46 of the ECHR the UK has promised to “abide by”. In Greens and M.T. v. the United Kingdom the Court told the UK that if it did not make progress in implementing the Hirst judgment, around 2,500 cases brought by prisoners which the Court has before it including around 1,500 which had been registered, can be “unfrozen”, that is reinstated.

If it does not implement the judgment, the UK would face thousands of financial claims against it potentially totalling millions of pounds. For the full background, see my previous post.

The third way

There is another possibility. The Government may put a bill before Parliament by 22 November 2012 but do no more than that. That is, the bill would be presented as a means of satisfying the European Court but not a policy which the Government (or, arguably, the nation) supports. This will almost certainly result in the Bill being defeated, and the court being forced to unfreeze the other claims [update - another option has been suggested by the BBC's Nick Robinson: "It may try to argue that the existing law does not involve a blanket ban since, for example, remand prisoners retain the right to vote." In my view, this would almost certainly result in a further legal challenge].

However, is hard to see how this option would accord with the spirit or indeed the letter of the UK’s obligations under international law. The Government should now accept its responsibilities under the ECHR or risk poisoning public opinion even further against the court. Indeed, given the significant retreat of the Court, the UK can afford to take a minimalist and relatively pain-free approach. But in doing so, it must make the case for implementation of the ruling to Parliament and the public too. Any other reaction to today’s ruling may serve short-term political ends, but it will also probably do significant harm to the rule of law, which would be bad for prisoners, the public and even politicians too.

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Related posts

• European Court Grand Chamber to rule on prisoner votes next Tuesday
• Prisoner votes and the democratic deficit
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• Is the Attorney General right on prisoner votes and subsidiarity? – Dr Ed Bates
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• Prisoner votes: a ping pong ball in a wind tunnel

AHK and Others v The Secretary of State for the Home Department [2012] EWHC 1117 (Admin) – Read judgment

Secrecy and secret justice are rarely out of the public eye. The Queen’s speech included plans to allow secret hearings in civil claims, at a time when their use is highly controversial. The government argues they are necessary to safeguard national security. Civil liberties groups and even the Special Advocates who help administer them, regard them as a bar to real justice and fair hearings.

So it seems appropriate at this time that the High Court has handed down an important decision on the use of Closed Material Procedures (CMP) in Judicial Review claims relating to naturalisation (the process by which foreigners can be ‘naturalised’ as British citizens). In simple terms, this is a variety of procedure where the government can rely on evidence which it has not disclosed to the opposing party, in a closed hearing. In the closed proceedings, the Claimants are represented by Special Advocates, who are subject to strict rules relating to what they can and cannot tell their clients.

Background

This decision of Mr Justice Ouseley deals with four cases where applications for British citizenship through naturalisation had been refused on the basis that the Secretary of State did not consider them to be “of good character” (something which she is required to consider them to be under the British Nationality Act 1981 before she may grant them British nationality), where few or no reasons for the refusal have been given on the basis that to reveal those matters would be harmful to national security.

The hearing considered the impact of the decision in Al Rawi, described in detail here, another closed material case. The Court began by noting that there are several duties imposed on the Secretary of State when making a decision on good character: a duty of fairness, requiring the Secretary of State to identify to the applicant areas of concern so she may make submissions on those topics before the decision is made; a similar duty to give reasons for the decision after it has been taken; a duty of candour in judicial review proceedings requiring disclosure of relevant documents and a full explanation of the decision and background facts. The Court explained:

The essence of the various Claimants’ grounds is that, before any adverse decision is made on an application for naturalisation, the applicant should be told of the SSHD’s areas of concern so that they can be addressed as far as possible. After an adverse decision is made, the applicant should be told the reasons and basis for the refusal of naturalisation, or at least sufficient of them, so that he can respond effectively to them. The absence of sufficient information at either stage makes the refusal unfair. The essential and immediate purpose of the proceedings is to obtain a remedy in respect of the absence of sufficient notice of the areas of concern and of the reasons to enable them to be responded to effectively…The cases are far more about the fairness of the procedure thus far adopted by the SSHD than about the substantive merits of a decision the basis for which the Claimant has not been told much about. Disclosure is effectively the substantive relief. (Paragraph 23)

The litigation has reached the stage where a Public Interest Immunity hearing is necessary, to decide what relevant material could be withheld by the government on the basis that it would be in the public interest to do so.
The Court considered that whether a CMP procedure would later occur should have no effect on how the PII process is carried out.

Th real CMP problem

The Court went on, “The real CMP problem relates to substantive challenges, which are likely to arise in subsequent actions after representations on any disclosed material have led to a further adverse decision by the SSHD.” (Paragraph 53).

Supposing that the Secretary of State complied with her duties of disclosure, but there remained material which was properly not disclosed yet which was relevant to the case. In this situation, without CMP, the court cannot fairly review the decision, because it does not have access to all the information upon which the decision was taken. Were the Court to attempt to do this, and the government lost, then the same decision would be taken again, on the basis of material including that which was not disclosed, and the same result would occur. A CMP could be a way round this, as the only real alternative is for the Claimant to lose because the Court could not find that the Secretary of State had made an unlawful decision, given that not all the material underlying the decision was seen by the Court.

The Court found that there were compelling reasons why Al Rawi did not prevent a CMP being held in this case: there was no finding in Al Rawi that CMP hearings could not be held in judicial review proceedings. Al Rawi had involved claims for damages in tort and for breaches of the Human Rights Act 1998.

However, the Court considered that the decision did mean that legislation was required for a CMP in judicial review proceedings, and consent of the parties was insufficient for a CMP to be held.

A decision for Parliament

It was recognised that ordinarily, the Court has an inherent jurisdiction to adapt its procedures in order to make them fair. However, in Al Rawi, it was held that even if such a jurisdiction exists, it should not be exercised in an ordinary civil claim for damages. Importantly it was noted that,

… the crucial point, as I see it, was not the form of action, nor even the legal nature of the issues. The crucial point was the nature of the process whereby decisions would be reached in ordinary civil claims for damages, which led the Supreme Court to hold that it was for Parliament to rule on, and devise if it wished the boundaries for such a process. The change was of such a nature, controversy, and so contrary to the normal procedures of a Court that Parliament should reach the decisions on whether and how to make such a change. I also regard the strong but differing views of the Supreme Court Justices about the desirability, fairness, circumstances and operation of a CMP as meaning that the resolution should be Parliamentary rather than of the Court’s devising. (Paragraph 81)

Consent

The Supreme Court in Al Rawi had been divided about whether a CMP could be consented to. In this case the Court considered that it could not. First, the Supreme Court had appeared to proceed on the basis that a Defendant would consent or could be ordered to do so. But “I do not see that this procedure should only be available to the advantage of one party” (paragraph 89).

Secondly, the Courts would be devising the procedure. However, arguments about what form the procedure would take were important to the Supreme Court’s decision. This raises the question, “How far does the consent have to extend: to principle or to every aspect of procedure?” (Paragraph 90)

Thirdly, such consent would necessarily mean that, at least in the narrow sense, the Court has jurisdiction to decide the issues. A process which would otherwise require legislation would become available because of the parties’ consent. This ignores the much wider public interest in the conduct of proceedings of this nature.

Fourthly, the Claimant would have to be advised that the matter was at least arguable, to the extent that it is worth holding a CMP. But the PII judge could not advise whether or not there was something in the closed material which made a CMP worthwhile. A Special Advocate might advise, but the Secretary of State may object to disclosure of the degree of knowledge which the Security Service has of the Claimant, which might be touched upon in that process.

“I therefore hold that in the naturalisation cases, there can be no CMP even by consent, save as is inherent in the PII process. The cases will have to be considered in the light of anything which emerges from the PII process.” (Paragraph 97).

The case therefore proceeds to a PII hearing without a decision about what may occur thereafter. That will be dependent upon the result of the PII process.

Conclusion

Given the difficult questions which CMP poses, involving national security, the right to fair trial and the public interest in justice being transparent, it seems entirely appropriate for the Court to have regarded the use in these proceedings of CMP as a matter for Parliament. When such fundamental issues are at stake in a democratic society, which have a bearing on the rule of law, public interest and very important rights of the individual, the legislature is the appropriate forum for the decision to be taken.

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Read more:

• Secret evidence v open justice: the current state of play
• A secret justice climb down? Perhaps not
• Secret evidence proposals- time to reflect
• Should more trials be held in secret? Part 2: a Special Advocate’s comment

DCLG v. Information Commissioner & WR [2012] UKUT 

I have previously posted on the decision leading to this successful appeal by the Planning Inspectorate, against an order that they produce their legal advice concerning a planning appeal. The decision of the First-Tier Tribunal in favour of disclosure was reversed by a strong Upper Tribunal, chaired by Carnwath LJ in his last outing before going to the Supreme Court. So the upshot is that PINS can retain whatever advice which led them to refuse this request for a public inquiry in a locally controversial case.

Now for a bit of background. The claim for disclosure of documents arose out of a planning application by a wind farm operator to install an 80m tall anemometer (and associated guy wires radiating over about 0.5ha) near Fring in North Norfolk. This was to assess the viability of a wind farm near the site. The local planning authority refused permission for the anemometer, and the wind farmer  appealed.  There are three ways of deciding such an appeal – a full public inquiry with oral evidence and submissions, an informal hearing or written representations. The locals people wanted a public inquiry. They were supported in that by the council, and the local MP thought that the council was the best body to judge that.  PINS said no; no complex issues arose for which a public inquiry was necessary.

WR, acting for local objectors,disagreed; he said  that an anemometer would itself have an impact on local populations of pinkfooted geese, a protected species in nearby coastal areas; hence, any development would need an Environmental Impact Assessment before it could be approved by the planning authority, whether or not the wind turbines proceeded.The issue was not simply about visual amenity, as PINS thought it was. Hence a public inquiry was required.

When PINS announced its view, and said that its view was based on legal advice, WR unsurprisingly said – show us your advice. PINS refused, hence this litigation.

 Lawyers will know that such advice is covered by legal professional privilege. But such privilege does not necessarily prevent it from being disclosed by a public authority. Under the Freedom of Information Act (FOIA) regime, it is a ground for refusing to produce documents, but only when that is in the public interest: s.42. Under the exemptions in reg 12(5)(b) of tlhe Environmental Information Regulations  privilege is not even a ground of exemption; the public authority must show a rather different thing, namely that disclosure of the legal advice would adversely affect the course of justice, and in all the circumstances of the case, the public interest in maintaining that exemption outweighs the public interest in disclosure. In addition, there is a presumption in favour of disclosure.

WR appealed the Information Commissioner’s decision to refuse disclosure of the appeal. The First Tier Tribunal ordered disclosure. And it is that order which the Upper Tier Tribunal has now reversed.

The FTT had concluded that the EIR regime, based upon Directive 2003/4/EC on public access to environmental information, is a more permissive regime that the domestic freedom of information regime. Hence,  it was not consistent with either that Directive or FOIA

to carve out what amounts to a de facto absolute exemption for legal advice. Nor is it consistent with the presumption in favour of disclosure expressly articulated in Regulation 12(2) EIR.

69. The information being requested was used by PINS as the basis for depriving the Appellant and members of the public of their ability to participate effectively in environmental decision-making. Considering the information itself, even if this exception  was fully engaged (and the Tribunal, in the circumstances of this case, concludes on the balance of probabilities that it is not,) then the public interest balancing test could not produce a result which would prevent disclosure.

Hence, even if the exemption relied upon was engaged by the advice in question,

the public interest elements in this case were sufficiently compelling to override the considerations which usually favour withholding legal advice. [74]

On appeal, the UTT considered that regulation 12(5)(b) enabling disclosure to be refused on privilege grounds was engaged.  The advice was given at a time when judicial review had been threatened; disclosure would have had an adverse effect on the course of justice, by weakening general confidence in Legal Professional Privilege.  This was said to be a strong factor in favour of maintaining the exemption, though, in the light of the FTT’s remarks abut the advice in question, and indeed the UTT’s words quoted below, this was evidently a point about general public interest, rather than the specifics of the case. The UTT also said  that it was unfair to require PINS to reveal its legal advice in circumstances where those seeking to overturn its decision would not have to do so.

In the UTT’s words

(i) Would disclosure of the information adversely affect the course of justice?

67.       In our judgment the answer to that question is plainly “yes”. The advice was given at a time shortly after proceedings for judicial review had been threatened…. At the time when the information was requested, and when the request was refused, proceedings (either by way of judicial review or, if the planning appeal was successful, by way of statutory appeal) were still very much a possibility. We do not consider that it was probable that there would be some such proceedings, and we therefore do not find that it was probable that there would be some adverse effect on the course of justice in relation to proceedings concerning this planning application. But we do find that at the material time disclosure would have had an adverse effect on the course of justice by reason of the weakening of general confidence in the efficacy of LPP which a direction to disclose advice given in the circumstances of this appeal would cause. There were in our judgment no particularly special or unusual factors of this case which would have justified public authorities and their legal advisers in thinking, were disclosure in this case to be directed, that they would not be at risk, in the broad generality of cases, of having to disclose communications seeking or giving legal advice.

Leaving aside general considerations about the desirability of upholding LPP, one wonders whether the facts of the case come anywhere near establishing that disclosure “would” harm the interests of justice. Say, the case had gone to judicial review or statutory challenge, and WR had produced the, apparently, scanty advice underlying PINS’ stance. What then? If PINS has a rubbish case, then it deserves to have lost. If it had a good case, but weak legal advice, it is difficult to see how the former can have been affected by the latter. Quite how any of this would have been affected by general weakening in the confidence of LPP, is unclear.

That all said, the UTT decided that the factors in favour of disclosure were relatively weak: the presumption in favour of disclosure was rebutted. The fact is, that the strong grounds for upholding LPP generally, which have been repeatedly invoked by the highest courts in the UK in defence of the subject, were now being used to interpret a provision which was not in all truth drafted so as to align with those general policy considerations. The UTT did not decide that every privilege case would automatically engage regulation 12(5)(b); but they also doubted whether regulation 12(5)(b) could be confined to cases where there was a threat of litigation. In summary, the UTT appear to have been paying lip service to the specific statutory regime in deference to the wider policy issues in play. Whether the European Court of Justice would agree is questionable, not least because the rules about privilege for in-house legal advice are somewhat variable over the EU.

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MM and AO (a child), R(on the application of) v Secretary of state for the Home Department [2012] EWCA Civ 668 (18 May 2012) – read judgment

The Court of Appeal has confirmed that the Secretary of State acted lawfully in not ordering independent inquiry into a 2009 protest at an Immigration Detention Centre.

 This interesting case explores the scope of the investigative duty under Article 3  of the Convention and its limited nature when compared to the analogous duty under Article 2, where the victim is no longer around to take action for him or herself.  On the facts of this case, where there was no allegation of systemic failings, there was no obligation under Article 3 to arrange such an inquiry and the claim for psychiatric damage by the children who became separated from their parents during the protest was dismissed.

Background

The claimants, an adult and child respectively, had been detained amongst others at a removal centre. In 2009 there as a protest by some of the detainees after which the United Kingdom Borders Agency (UKBA) which ran the centre intervened, attempting amongst other things to remove the children from the fray by gathering them in a classroom. Afterwards, there was a dispute as to the degree of force used during the intervention and the distress caused to the children. An investigation by UKBA’s own Professional Standards Unit  concluded that the intervention had been necessary. However, it was claimants’ case that an independent investigation was required to comply with the procedural obligations under the prohibition of inhuman and degrading treatment under Article 3. When dealing with a mass protest involved careful planning and execution, the claimants submitted that it was particularly important that lessons be learned by the state from events as serious as these.

At first instance the judge concluded that the availability of civil proceedings, which the claimants had already commenced in relation to their detention, fulfilled that investigatory obligation and that there was no good reason to require the secretary of state to arrange a different independent investigation. Whilst the UKBA inquiry was not independent of government, it was thorough and systematic and involved the marshalling and retention of a considerable amount of evidence. The civil proceedings were also relevant as a means of investigation and learning lessons. The trial would be conducted by an independent judge and the range of issues raised was such that investigation of the planning and conduct of the intervention would inevitably be required.

In their appeal against this finding the claimants argued that while adults could decide for themselves whether to settle or proceed with the civil claims, the litigation friend of an infant claimant would be obliged to settle if a reasonable offer was made; therefore there would be no judicial determination on the relevant issues. They based their claim on Article 3 but relied by analogy on the high duty to investigate that arose under article 2 of the ECHR when a suicide had occurred as illustrated in R(Amin) v Secretary of State for the Home Office [2003] and in R (L (A Patient)) v Secretary of State for Justice [2009] AC 588. They contended that the need for thorough and independent investigation applied to children as much as to suicides and attempted suicides. In L , Lord Rodger of Earlsferry referred, at paragraph 65, to the position of a prisoner who is “incapable of looking after his own interests . . . he certainly cannot take proceedings by himself on the basis of any recollection he may have.” A child is in the same position, it was submitted.

The Court dismissed the appeal.

The Court’s reasoning

Central to the court’s consideration was the Strasbourg admissibility decision in Banks v United Kingdom, application no. 21387/05, a case concerning allegations by prisoners that they had been assaulted in prison by prison officers. The court rejected the applications alleging breach of the investigatory obligation imposed by article 3 as being manifestly ill-founded.

The Strasbourg court held that there is a “different emphasis” as between articles 2 and 3. In the context of article 2,

the obligation to conduct an effective investigation into allegations of the unlawful use of force attracts particular stringency in situations where the victim is deceased and the only persons with knowledge of the circumstances are officers of the state.

By contrast, in the context of article 3,

the victim of any alleged ill-treatment is, generally, able to act on his own behalf and give evidence as to what occurred.

The Strasbourg Court’s analysis was germane to this case, in particular its conclusion that the wider questions raised by the Banks application as to the background of the assaults and the remedial measures apt to prevent any recurrence in a prison in the future were “matters for public and political debate which fall outside the scope of Article 3 of the Convention”.

As for the present case, the Court of Appeal considered that an independent investigation would not routinely arise upon the occurrence of events such as these, even if children were involved. An application had to be considered on its merits, having regard to the nature, scale and consequences of the incident, the likelihood of recurrence, and the existence of other investigations conducted or available. The costs involved in a further investigation could also be considered as could any past or current investigation.

This outcome vindicates the words of Longmore LJ, a lone dissenting voice in a similar case in 2009 where the Court of Appeal granted a declaration that Article 3 required the institution of a public inquiry into the authority’s response to a prison riot.  It cannot be right, he said, that merely by adding an allegation that the conduct is systemic one can be entitled to a public inquiry.

There can hardly be a requirement for a public inquiry every time somebody plausibly alleges institutional violence or institutional racism on the part of the authorities. Unless the state’s recognised ways of investigating such allegations by the use of legal proceedings or the Ombudsman are appropriate, there will be a risk that there will be considerable public expenditure to little purpose. (R (AM) v Secretary of State [2009] UKHRR 973)

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Angus McCullough QC and Jeremy Johnson QC, Special Advocates at the JCHR

It appears that the Government has climbed down, in part, from some of its controversial secret justice proposals.  According to the Telegraph, the Justice and Security Bill, which will be published this week, will include a provision whereby judges, not the Government, has the final say on whether a Closed Material Procedure (CMP) is used. Moreover, CMPs will be restricted to “national security cases” rather than any case “in the public interest”. 

It “remains uncertain”, however, “whether Mr Clarke will exclude inquests from being subject to the secret hearings.” Junior Justice Minister Jonathan Djanogly caused a stir last week when he appeared prematurely to announce that particular concession in Parliament, but quickly stepped back from his statement.  In view of the likely legislative bartering which will occur as the bill progresses through Parliament, perhaps this is a concession which was meant to be left until later in the process.

We will analyse the bill when it is published later this week. But as this important debate resurfaces and the manoeuvring continues, it is important to keep two things in mind.

First, the Government has already emphasised the role of judges in the process, so the first concession is probably not much of one at all. Secretary of State for Justice Ken Clarke’s evidence to the Joint Committee on Human Rights (JCRH) is summarised in its report as follows:

[Clarke] indicated that the Government wanted to bring in the judicial element to the maximum possible extent. He accepted that “you cannot just have the unfettered decision of a Secretary of State” and that the judge has got to have “a proper and sensible role.” However, he was also concerned about upholding the control principle, and for that reason was reluctant to concede that the decision as to whether there should be a CMPs in a particular case should be a judicial decision alone.

It is not clear what it means that judges will have the “final say”. This may simply mean that the decision to use CMPs, made by the Government in the first instance, will be susceptible to Judicial Review or some kind of statutory appeal process. But as David Anderson QC, the Independent Terrorism Reviewer, made clear, the decision to trigger a CMP must be for the court, not the Government. Indeed, it would be “profoundly wrong in principle” for the initial decision to be taken by the Government, which will usually be a party to the case and therefore not objective. Anderson has stated on this blog (see his comment to Rosalind’s post) that “In short, [he] oppose[s] the proposals for the extension of CMPs as they are set out in the Green Paper.” And as he said at [26] of his report to the JCHR:

It is difficult to see how this proposal could be considered, even by the Government, to be a necessary part of a civil CMP regime. In al-Rawi, counsel for MI5 argued only that “the court has the power to order a closed material procedure in exceptional cases where this is necessary in the interests of justice” (§39, emphasis added). If a judicial power to order CMP would have been satisfactory as a statement of the common law, it is not clear why an executive power should be required in the proposed legislation.

Another option, but one which is unlikely to be the Government’s choice, was proposed by the JCHR in its report, namely that judges should not just have a “final say” on whether CMPs are used, but should also be able to chose between a range of procedures, including but not limited to CMPs:

[103] …there should always be full judicial balancing of the public interests in play, both when deciding the appropriate procedure and when deciding whether a particular piece of evidence should or should not be disclosed.

Secondly, notwithstanding the welcome restriction of CMPs to cases involving national security, the apparent concessions do not address a more fundamental criticism of the proposals. As Angus McCullough QC said on this blog, the case for the introduction of fundamentally unfair secret hearings in civil proceedings has not yet been made:

[As] is frequently overlooked or misunderstood… the proposed extension of closed procedures to civil proceedings is not impelled by considerations of national security.   In this particular part of the debate, asserted concerns about the risk that information that is harmful to national security may be disclosed, or that the absence of procedures would stifle the flow of intelligence from foreign powers, are essentially irrelevant.  The purported justification for making closed procedures available in civil proceedings is based principally on concern for fairness, not national security.

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Secret evidence proposals – time to reflect

Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

This week saw some commentary on Lord Sumption’s latest speech, which may indicate further advances into the domain of the government by the judges, and on secret justice and vicarious liability for Catholic priests. There have also been two important new decisions on child tax credit for separated parents and when costs will be awarded in settled judicial reviews under the Housing Act.

UKHRB Seminar Podcasts Available

The podcasts and full presentations by 1 Crown Office Row barristers Shaheen Rahman, Adam Wagner and Matthew Hill for UKHRB’s million-hit seminar are now available. The major topics: the Brighton Declaration, Article 8 and when States are complicit in torture. Check them out here if you missed the seminar.

In the news

Lord Sumption’s Speech: Foreign Affairs in the English Courts since 9/11

Read the speech itself here. It presents the successive development of the law relating to judicial control of the prerogative powers of the executive, from the landmark GCHQ case in the 1980s, which determined that foreign policy is not reviewable, to more recent cases that suggest that this attitude is being eroded. ObiterJ commented on the speech, seeing it as a statement of intent to expend judicial competence into foreign policy areas (at least as far as Lord Sumption is concerned).

Joshua Rozenberg, in his article in the Guardian, agrees, concluding that “If Sumption has anything to do with it – and now of course he does – the foreign secretary of the day will soon be held to account in much the same way as the Home Secretary is already.” However, there are limits: Sumption said that this doesn’t mean the judges will start actively directing Ministers on foreign policy, or allow the Human Rights Act to be used to challenge major foreign policy decisions by the government. Another view can be found in Rosalind English’s analysis of the speech.

Division of child tax credit

The current rule on child tax credit (CTC) was unsuccessfully challenged as discriminatory against men in the recent Humphreys case. The Supreme Court held that the current scheme, which allows only ONE parent to receive CTC, whichever has the child for more time (usually the mother) is not discriminatory under the Human Rights Act, being justified on the basis of preventing child poverty. In this particular case, the mother did have the child for the majority of time, but only by 1 day per week, making this decision quite harsh on the father. Rosalind English, writing for UKHRB, commented on this case, breaking down the court’s reasoning in some detail.

Carl Gardner, posting on HeadofLegal, also commented, concluding that  the decision reached was fortuitous, as the issue of what remedy could actually be granted had the appellant succeeded is a difficult one. He also points out Lady Hale’s parting shot: that it would be better if the judges were given back their ability to micromanage CTC in these situations (impossible while the statute exists), though Gardner himself doubts whether this would be better in practice.

Housing and human rights

The M v London Borough of Croydon case, decided last week, involved the important issue of costs in settled judicial reviews for s. 204 Housing Act 1996 Homeless appeals. This week, NearlyLegal posted commentary on this case that aptly summarises its impact – the result is favourable to claimants, as the usual arguments put forth by Defendants to defeat an order for costs being made against them (such as settling not being related to the merits of the case, being a practical decision instead) will now only succeed if the defendant has a particularly good reason. The presumption is now that the Claimant is entitled to his costs.

Vicarious liability for sexually abusive priests

Owen Bowcott, writing in the Guardian, summarises the positions of each side in a “test case” (currently in the Court of Appeal), in which the claimant seeks to make the trustees of a Catholic diocese vicariously liable for a priest’s abuse of the claimant. The trustees deny liability because the priest was a “co-operator and collaborator” of the bishop, rather than someone subject to his direct control, and to rule in favour of the claimant out of “sympathy” would be to unjustly extend the principle of vicarious liability. Elizabeth-Anne Gumbel QC and Justin Levinson of 1 Crown Office Row, for the claimant, contend that the priest was given his position and authority by the trustees, and to find they could not be liable for the priest’s crimes would be to make the Roman Catholic Church immune from vicarious liability for the crimes of priests, leaving many claimants without remedies.

The Crime and Courts Bill

The Government proposes to scrap the full right of appeal for those applying to enter into the UK as family visitors (again – this was introduced by the last Conservative government, and repealed when Labour got into power) in order to save costs. You can read the government’s press release, detailing the proposals for the Crime and Courts Bill, here. The proposals were comprehensively criticised by the Free Movement blog, who doubts that the proposals will actually save much money at all. The BBC also reported on this issue, quoting the Immigration Minister Damian Green as saying that these proposals are denying immigration lawyers the “goldmine” that immigration cases represent. Freemovement strongly disagrees with this “revolting” comment, stating that the only losers will be the ethnic minorities whose families are denied access to the UK for family events.

Public interest in journalism – a warning not to go too far with Leveson

Alex Bailin QC and Edward Craven of Matrix Chambers posted this week on Inforrm’s blog on the need for a public interest defence in investigative journalism, to provide some special protection for the media so that it can perform its vital function. In the context of the Leveson inquiry, the posters see a danger of throwing the baby out with the bathwater – of making genuine investigative journalism a casualty of the inquiry. A public interest defence already exists for libel (the Reynolds “responsible reporting” defence), and, Bailin and Craven argue, should exist also for investigative journalism, rather than leaving genuine investigative journalists at the mercy of prosecutorial discretion, no matter how benevolent and structured the guidelines are.

Secret Justice

Also this week, in an answer to a question posed by a Labour MP, the under-secretary of state for justice stated that information on how many times a closed material procedure has been used in an employment tribunal in each of the last 10 years “is not readily available or held centrally and could be obtained only at disproportionate cost”. This response naturally troubled Lawrence McNamara, who wrote an article explaining his view in the Guardian this week. There is no recording or reporting on how often materials are closed, and the Justice and Security Green Paper contains no proposals to record this – meaning we not only won’t know what is excluded, but also how often proceedings are “closed” – and the government seems to think that it would be “disproportionately” expensive to find out, which must indicate a low regard for open justice.

In the courts

Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2012] EWCA Civ 641 The Court of Appeal held that the dismissal of a consultant Cardiologist from the NHS Trust was not a breach of his Article 6 rights, as they were not engaged by the dismissal.

MM and AO (A Child), R (on the application of) v Secretary of State for the Home Department [2012] EWCA Civ 668 The Secretary of State acted lawfully in not ordering an independent inquiry into the 2009 protest at the Immigration Detention Centre. The challenge was brought by children separated from their parents during protest and claiming psychiatric damage as result.

British Sky Broadcasting Ltd & Ors, R (on the application of) v Chelmsford Crown Court [2012] EWHC 1295 (Admin) Sky, BBC, ITN etc. succeed in Judicial Review of decision by court to order production of 100+ hours of video footage to Essex Police of Dale Farm protesters on the basis that “… there were no reasonable grounds for believing that the footage of over 100 hours included material likely to be of substantial value to the investigation”.

Humphreys v Revenue and Customs [2012] UKSC 18 Supreme Court: paying child tax credit to “main” care giver not discriminatory (under art.14 ECHR) to father who was caring for the child 3 days per week. The specific test for justifying discrimination in the context of state benefits is that with questions of social and economic strategy the Court will generally respect the legislature’s policy choice unless it was “manifestly without reasonable foundation”.

Hounga v Allen & Anor [2012] EWCA Civ 609 Court of Appeal: Nigerian au pair knowingly working illegally in the UK cannot bring racial discrimination claim against “employers”. Daniel Abnett on his Employment Law blog commented on this case, explaining that a major factor defeating the claim was the fact that the claimant sought to rely on her own illegal actions in court, despite the court accepting that she was a vulnerable person.

Burnip v Birmingham City Council & Anor [2012] EWCA Civ 629 Provision of housing benefit to severely disabled claimants was too low and therefore discriminatory, rules High Court.

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UKHRB Posts

• Discriminatory basis of Child Tax Credit is justified, rules Supreme Court May 17, 2012 Rosalind English
• Peace campaigner evicted from Parliament Square using new law – Marina Wheeler May 17, 2012 1 Crown Office Row
• Libel on the Internet – Christian author takes on Dawkins and Amazon May 16, 2012 Rosalind English
• Unlawful to refuse support for Portuguese with AIDS – Nearly Legal May 15, 2012 1 Crown Office Row
• European Court Grand Chamber to rule on prisoner votes next Tuesday May 15, 2012 Adam Wagner
• South Africa shrinks from investigating Zimbabwe torture allegations May 14, 2012 Rosalind English

Like the heated question of whether a non-entrenchment clause could be dug into our law to protect UK parliamentary sovereignty, this one wasn’t about law, or even constitutional theory; it was essentially about differing ideological positions vis a vis judicial power.

Joshua Rozenberg welcomes Sumption’s latest speech as indicative of his supportive stance  on judicial activism, particularly in the foreign policy sphere.  I don’t agree. In his  FA Mann Lecture  last November Sumption pinned his colours to the mast on judicial activism in general, and this latest fascinating survey of foreign policy case law illustrating the retreat of judicial deference must be read in that light.

Sumption’s account of the growing emphasis in English public law on transparency and human rights and its impact on the confidentiality of communications and the secrecy of intelligence-gathering operations is studiously neutral. But it is not true that, as Rozenberg says, “there is nothing in it to suggest that he does not support the direction of travel.” When Sumption points out that an earlier generation of judges would have not entertained the question whether communications about intelligence between the American and British governments should be published, he is not proposing that government engages in wholly gratuitous suppression of information in this area:

the operations of government in the domain of foreign policy and intelligence-gathering, have aroused intense distrust and suspicion in the press…This distrust is not easy to dispel without compromising the confidentiality of communications with foreign governments and the secrecy that is bound to protect intelligence work if it is to be effective.

The distrust of the press is not a value in itself.  Nevertheless it has gained traction in modern adjudication because of a number of factors, not only what Sumption calls the recent “passionate concern” for moral issues generated by foreign policy.  The exponential growth of judicial review, accompanied by the great relaxation of the restrictions on standing, he says, necessarily exposes the courts to a great deal of litigation which is essentially politics by other means, opening up the government

to challenge in the courts by pressure groups, often concerned with a single issue, which have no interest in the process of accommodation between opposing interests and values that is fundamental to the ability of nations to live in peace.

Sumption compares the incremental promotion of press interest and pressure group litigation with the “much tighter standing rules” in the US, linking the latter with the fact that the US is now a far mightier power than this country,  along with the robust immunity of the US executive’s foreign policy decisions from judicial scrutiny.  It may be that courts in this country are no longer swept along by the same sorts of fears that beset us when we were a world power.  The notion that the courts do not intervene in matters of relations between states was perhaps one that flourished when the stakes were higher. But by observing that the notion of non-justiciability is in retreat, Sumption does not advance any approval for the courts substituting their judgment for that of the political branches. The ragged jurisprudence of the Strasbourg Court is due to its periodic lack of inhibition in this area, since it is not beset by the specific constitutional checks and balances that restrain national courts.  Sumption hardly celebrates the evolution of the “extra-territoriality” rule, which allows the Court to apply Convention rules to non-Convention jurisdictions in an increasing number of scenarios:

Al-Skeini and Al-Jedda were concerned with the impact of military operations on the particular complainants, although the application of the Convention to all territory where the United Kingdom is an occupying power will inevitably mean that policy decisions about the conduct of the occupation will fall to be reviewed in circumstances where they would not have been before.

He also comments upon another rule of deference that seems to be in retreat,  the Foreign Act of State doctrine, which is based on the principle of comity that the courts of one country will not sit in judgment on the sovereign acts of another, even though they would be perfectly competent to do so if it was relevant. This doctrine, along with the non-justiciability theory, no longer exercises a restraining influence. Courts unhesitatingly pronounce on the legality or otherwise of foreign states’ actions -  Abbasi v. Secretary of State for Foreign & Commonwealth Affairs [2002] EWCA Civ 1598 (and see my posts on our judicial finger-wagging at other countries here and here).

Recent cases concerning defence powers have been based, not on the ambit of the  ”forbidden area” ( Marchiori v Environment Agency [2002]), but on the notion that the government’s discretion in such matters is much wider (CND v Prime Minister [2002]; or that courts should be reticent (rather than constitutionally forbidden) to intervene (R v Jones [2006]).  But judges are plucking stronger obligations out of the air: what the Court of Appeal called the force which seeks to press the courts into the area of UK’s foreign relations, and within it “to exercise a robust independent judgment”,

 is the legal and ethical muscle of human rights and refugee status.(Al Rawi v Secretary of State for Foreign and Commonwealth Affairs [2008] QB 289

Sumption stays scrupulously clear of any evaluation of this particular legal and ethical “muscle” and whether it should prevail over other arguably robust legal and ethical arguments, such as the need to maintain the secrecy of material supplied to the UK under intelligence cooperation arrangements (the issue at the centre of many recent cases, notably Binyam Mohammed v Secretary of State for Foreign and Commonwealth Affairs [2011] QB 218). The obligation of confidence which the United Kingdom owes to the United States when it receives such material is noted,  as is the enthusiasm of the courts to undermine it:

what is remarkable about the [Binyam] case is the palpable anger of the courts about the position in which they had been placed by the insistence of the Americans on maintaining a confidentiality to which they were certainly entitled under the Anglo- American intelligence cooperation arrangements, but which the English courts considered to have no purpose other than to suppress embarrassing facts.

It may be true that the judiciary cannot permanently thwart the objectives of government in its foreign operation, but it can certainly make a nuisance of itself, as it did here.

There is no suggestion of support for the direction of travel in this speech. What Sumption does is to acknowledge that the government’s power to withdraw certain classes of cases – and material – from the courts’ jurisdiction is so fraught with difficulty that even the widespread political reaction to unpopular human rights decisions will not restrain the courts’ readiness to intervene in the moral maze of foreign affairs.

Related posts:

• One of the “great unspoken problems” about human rights law
• Don’t try for me Argentina
•  Should UK courts pass judgment on other Convention countries?

As expected, last week’s Queen’s Speech included plans to reform libel law. This follows a concerted campaign to improve protection of the right to free expression and bring greater clarity to England’s libel law. But the question for those who wanted to see reform, now the

The media law blog, Inforrm, published this summary of the Bill, which takes a detailed look at the main clauses. Law blog Jack of Kent also has a libel reform resource page here. Among others, the Bill would make the following major changes:

• Create a test of “serious harm” for statements to be considered defamatory.
• Abolish the common law defences of fair comment, justification and Reynolds privilege, and place them on a statutory footing.
• Create a new statutory privilege for peer-reviewed scientific and academic publications and provide greater protection to online entities.
• Amend the existing law of qualified privilege to include reports of scientific conferences and press conferences.

The need for change

Libel laws exist to protect people’s reputation; it is not surprising that they restrict freedom of expression. The specific aim of defamation law is to restrict expression that harms people’s reputations without lawful defence. The problem that had emerged, however, was that the law restricted more than just attacks on reputation: academic criticism, scientific debate and investigative journalism – both in print and in particular online – were being “chilled” by the fear of libel cases, which are expensive and lengthy.

The protection of Article 10 rights has been an area where the European Court of Human Rights has emphasised the margin of appreciation for Member States. In MGN v United Kingdom, on balancing Article 8 and 10 rights, the Strasbourg Court stated (§142):

The balancing of individual interests, which may well be contradictory, is a difficult matter and Contracting States must have a broad margin of appreciation in this respect since the national authorities are in principle better placed than this Court to assess whether or not there is a “pressing social need” capable of justifying an interference with one of the rights guaranteed by the Convention.”

Further, the Supreme Court recently left the Reynolds defence for public interest journalism unchanged in principle. However, the campaign’s popularity – it achieved rare political consensus in the UK,  capitalising on the USA legislating against English libel cases, and, perhaps even more shocking, prompted the arts and the sciences to work together – demonstrated appetite for change.

So would a budding investigative reporter, or bad science blogger, be more fearless in publishing their work if the Defamation Bill became law?

Positive steps

Two major aspects of the Bill are likely to have a positive impact on freedom of expression: one is the general impression created by the reform, and the second is specific to scientific and academic publications.

The Bill makes a number of changes to when and where libel claims can be brought:

• Clause 8 introduces a single publication rule, abolishing the centuries old rule that each time a publication is made (including a website accessed) a new cause of action arises;
• Libel tourism is targeted by clause 9, restricting actions against residents of non-Member State countries; and
• Clause 1 provides that a statement is not defamatory unless it has caused or is likely to cause “serious harm”.

These provisions clearly show that the aim of the reform is to achieve greater certainty and finality in the law. The fact that this reform has taken place may, in itself, give people more confidence in publishing their work. It shouldn’t be underestimated that simply placing the defences on a statutory footing makes it easier for people to look up them up. So the fact that the Bill contains these provisions may have reduce the chill that was cause for concern.

Secondly, scientific and academic publications gain specific protection: peer-reviewed publications, reviewers’ criticisms and reports of such publications gain stand-alone privileged status. Reports of scientific and academic conferences are brought within existing qualified privilege provisions of the Defamation Act 1996.

Though scientists might not be clogging up the courts at the moment, the concern highlighted here by journal Nature should not be forgotten:

For every case that comes to court, say campaigners for reform, there are many more in which scientists who lack the resources to fight just quietly back down, or worse, censor themselves even before publishing. The provisions noted will help reduce this.

Potential problems

Public interest

Many of the Bill’s provision may end up having a limited impact on free speech. Firstly, clause 4 effectively replicates the Reynolds defence on a statutory footing and some will question whether it does enough to protect public interest journalism. The defence may be an onerous one to make out, as there will be strong argument that the courts should consider each of the factors set out in clause 4(2), and fresh case law will be required to see how the courts interpret the importance of each factor, and the relevance of previous case law. It is hard to think that the blogger imagined feels liberated by this checklist of demands being put onto the statute books.

However, given that the same clause appeared in the Draft Defamation Bill, it seems unlikely that the clause will morph into a wider public interest defence.

Uncertainty

Second is the potential uncertainty some of the clauses. For example, will the serious harm test be more onerous than the current need for a tort to be real and substantial, as set out in Jameel v Dow Jones [2005] EWCA Civ 75, or the “threshold of seriousness” considered in Cook v Telegraph [2011] EWHC 1519 (QB)? Will the single publication rule protect online archives, considered in Loutchansky v Times [2001] EWCA Civ 1805 – or will online versions  of articles be considered materially different? Will the defences for website operators (clause 5) or non-authors etc (clause 10) simply lead to satellite litigation and expensive preliminary hearings? Who counts as a website operator?

Online

Third is the effect on online publication. A detailed analysis by Graham Smith is available here. There is clearly greater protection in the Bill for online entities. However, some of this protection may overlap (an operator of a website is most often not the author or editor, and differences in how these defences work may lead to confusion), and it isn’t clear how these provisions will interact with the E-Commerce Regulations and the Defamation Act 1996, both of which offer protection for online entities. The question of whether companies like Google or Amazon will continue to be sued, as they both have been recently, remains to be seen. There is a strong argument that the seething mass of online publication needs a radical regulatory response.

Conclusion

The fierce battles over reforms to legal aid and the NHS show that government bills can be changed significantly before passing. However, there has been a far greater head of steam built up for this Bill, with the Draft Bill and numerous Committee reports, for something similar to happen. Barring a renewed mass campaign, amendments to the Bill will be minor.

At present, in terms of enhancing freedom of expression, it seems the government has done a good job, but could do better. The aim may be to encourage a gradual decline in the use of libel to suppress criticism, perhaps to be compensated by a burgeoning law of privacy – something encouraged by Jack Straw MP at the Leveson Inquiry (see link from p.33 onwards). But this might be the problem. The common law is best at adapting to social changes over time: if a statute tries to mimic this then it could lead to confusion or irrelevance. Further, in relation to online expression in particular, boldness is required to keep pace with change. Though the Bill is a good thing, news of which was welcomed by campaigners, it is unlikely to lead to the explosion in free expression for which some were hoping. Perhaps, as is not often the case, a Paul Daniels quotation is appropriate: you’ll like this, not a lot, but you’ll like it.

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Read more:

• Libel on the internet: Christian author takes on Dawkins and Amazon
• The rising cost of free speech: Reynolds, contempt and Twitter
• Times can use leaked Police documents in libel defence

Burnip v. Birmingham City Council, Trengrove v. Walsall Metropolitan Council, Gorry v. Wiltshire Council [2012] EWCA Civ 629 – read judgment

In the same week that the Secretary of State for Work and Pensions, Iain Duncan-Smith, announced his intention to implement sweeping reforms of the current system of disability benefits, the Court of Appeal has ruled that housing benefit rules were discriminatory against disabled people, in breach of Article 14 read with Article 1 Protocol 1 of the European Convention.

Mr Duncan-Smith has already faced opposition to his reform proposals but has made it clear that he is willing to tackle this controversial issue. However, this week’s ruling is a timely reminder that social security law is extremely complex and that the Government will have to tread very carefully to avoid unwittingly causing further instances of unlawful discrimination.

The Facts

There were three claimants in this case. Mr Burnip and Ms Trengrove (who sadly died in December and whose claim was continued by her estate) both had severe disabilities which meant that they needed the presence of carers throughout the night in the rented flats in which they lived. This meant that they needed two-bedroom flats. Mr Gorry and his wife had three children. Two of their daughters were disabled and therefore could not share a bedroom in the way that two non-disabled children of the same age could. The family therefore needed to live in a four-bedroom house.

All three claimants were entitled to receive housing benefit (HB). The problem was that in each case the amount of HB they received was calculated by reference to a one-bedroom flat or three-bedroom house, without taking into account the need for an additional bedroom because of disability. A detailed account of what this meant financially for each claimant is set out at paragraphs 23-55 of the judgment, but in short the effect was that there was a greater shortfall between the amount of HB received and the actual amount of rent they had to pay each week than there would have been for an equivalent non-disabled person. The claimants argued that this was unlawful discrimination under the ECHR.

The Law

The claimants were all housed in private rented accommodation. In such cases HB is paid by way of a rent allowance, and the level of the alllowance  is calculated by reference to (amongst other factors) the number of bedrooms which the recipient and his/her family are deemed to need. The relevant regulations – the Housing Benefit Regulations 2006 – provide that there is to be one bedroom for each ‘occupier’ (i.e. person who occupies the relevant property as their home) and ‘occupier’ is defined as a couple, an adult, two children of the same sex, two children under 10 or a child.

Mr Burnip and Ms Trengove’s overnight carers did not qualify as ‘occupiers’ since the accommodation was not their home. The two Gorry daughters were considered to be a single ‘occupier’.

The claimants did not pursue their claim under the domestic disability discrimination legislation applicable at the relevant time (the Disability Discrimination Act) but instead under Article 14 of the ECHR. The judgment does not explain why this is, but the likely reason is that the House of Lords decision in  Malcolm restricted the scope of indirect discrimination under the DDA so much that no claim could have been made under it. The effect of Malcolm has now been removed by the enactment of the Equality Act 2010.

Although disability is not expressly mentioned in Article 14, it falls within the phrase “or other status” (AM (Somalia) [2009] EWCA Civ 634). HB is a form of ‘possession’ for the purposes of Article 1 Protocol 1 (RJM [2009] 1 AC 311). The claimants put forward two arguments for why the HB provisions were discriminatory under the ECHR:

1. Whilst the statutory criteria provided for a non-disabled person to be given HB which would be an adequate contribution towards his accommodation needs, they failed to make equivalent provision in relation to more costly needs of the severely disabled. Although neither the non-disabled nor the disabled person was provided with a complete rent subsidy, the shortfall in relation to a disabled person was significantly greater because their HB was geared to one room fewer than their objective needs.
2. Article 14 does not just prohibit States from treating differently persons in similar situations, but also requires States to treat persons differently whose situations are significantly different (Thlimennos v. Greece [2001] 31 EHRR 15). Disabled people have greater needs than non-disabled people. The State’s failure to recognise this difference by making adequate additional provision is a breach of its positive obligation under Article 14.

The Decision

The reasoning of the Court of Appeal’s unanimous decision is split between Maurice Kay LJ (who deals with the question of whether there was discrimination) and Henderson J (who deals with the question of whether the discrimination was justified).

Maurice Kay LJ held that on either of the arguments put forward by the claimants the HB provisions were discriminatory. He held that the restrictive approach to discrimination used in Malcolm did not apply to Article 14, commenting that “one of the attractions of Article 14 is that its relatively non-technical drafting avoids some of the legalism that has affected domestic discrimination law”, and found simply that:

Where, as in the present case, a group recognised as being in need of protection against discrimination – the severely disabled – is significantly disadvantaged by the application of ostensibly neutral criteria, discrimination is established, subject to justification.

He took note of the Secretary of State’s argument that the Thlimennos positive obligation had not yet been applied by the courts so as to require a State to allocated a greater share of public resources to a particular group, but went on to find that:

I accept that it is incumbent upon a court to approach such an issue with caution and to consider with care any explanation which is proffered by the public authority for the discrimination. However, this arises more at the stage of justification than at the earlier stage of considering whether discrimination has been established. I can see no warrant for imposing a prior limitation on the Thlimmenos principle.

Henderson J did not accept the claimants’ argument that an ‘enhanced’ proportionality test applied to the question of whether the discrimination was justified. Although he noted the Strasbourg case-law that “very weighty reasons” are need to justify active discrimination on grounds of disability, he found that:

Weighty reasons may well be needed in a case of positive discrimination, but there is no good reason to impose a similarly high standard in cases of indirect discrimination, or cases where the discrimination lies in the failure to make an exception from a policy or criterion of general application, especially where questions of social policy are in issue.

Nevertheless, even on the normal standard of proportionality test, he held that the Secretary of State had not established an objective and reasonable justification of the discriminatory effect of the HB criteria. He considered in detail the other benefits received by each claimant, and in particular the fact that they could receive additional ‘discretionary housing payments’ to cover some or all of the shortfall between their HB allowance and the actual rent. However, he found that because these payments were discretionary and there was no guarantee of them being provided they could not, by themselves, justify the discrimination.

The Secretary of State emphasised the wide margin of appreciation accorded to the State in ECHR jurisprudence in relation to general measures of economic and social strategy, and relied heavily on the decision in AM (Somalia) – a disability case where the Court of Appeal had found that discrimination was justified. However, Henderson J held that the present case was distinguishable – it did not involve immigration (as AM did), the exception from the normal HB criteria was sought only for a very limited category of claimants who had severe disabilities (unlike all disabled people, as in AM), and Parliament had already seen fit to legislate to deal with the issue (see below).

Comment

It should be noted that this issue only arose because the claimants were housed in the (more expensive) private rental sector. Had the local authority been their landlord they would have been allocated accommodation based on their assessed housing needs, which would have included any needs arising from their disability. The difficulty is that social housing did not seem to be available for these claimants. At a time when a cap on housing benefit has led to accusations of ‘social cleansing’, rents are increasing and a lack of affordable housing is a major issue, this is another factor to consider in the debate over the best way to address the housing crisis.

Second, there has already been a legislative amendment to fix the problem in Mr Burnip and Ms Trengove’s cases. In April 2011 the regulations were changed to provide for “one additional bedroom in any case where the claimant or the claimant’s partner is a person who requires overnight care.” The problem faced by Mr Gorry is still live, however.

Third, Maurice Kay LJ made some interesting comments about the effect of the UN Convention of the Rights of Persons with Disabilities. He reached his conclusions on discrimination without reference to the CRDP, so his remarks are obiter, but he noted that, contrary to the comments of Sales J in the recent case of NM v. Islington [2012] EWHC 414, the European Court of Human Rights has “shown an increased willingness to deploy other international instruments as aids to the construction of the ECHR.” He summarised the correct use of the CRDP as follows:

 If the correct legal analysis of the meaning of Article 14 discrimination in the circumstances of these appeals had been elusive or uncertain (and I have held that it is not), I would have resorted to the CRDP and it would have resolved the uncertainty in favour of the appellants. It seems to me that it has the potential to illuminate our approach to both discrimination and justification.

Those bringing, or thinking of bringing, disability discrimination claims in the future would therefore be well-advised to look at the CRDP if the domestic law or ECHR jurisprudence is not clear.

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