Anti-squatting law and the death of Daniel Gauntlett

It is six months or so since the passing of a law criminalising trespassing in Britain and already there is – apparently – a tragic victim and – certainly – a nasty political row. The victim is Daniel Gauntlett, a 35-year-old unemployed man who died in the bitter cold on the step of an empty boarded up bungalow in Aylesford, Kent. Reports suggested police had been involved in preventing him breaking in to the house some time previously – “and so Mr Gauntlett, had taken the fatal decision to abide by the law,” according to news service KentOnline.

Campaigners against Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which criminalised squatting in residential property, believe the new law may be responsible for Mr Gauntlett’s death.

Some go further and are pinning the blame directly on MP Mike Weatherley, who introduced the anti-squatting legislation into the House of Commons, a suggestion pursued with unpleasant vigour – hence the controversy.

The claim against him is that he insists squatters are generally young, politically motivated leftists whose aim is to undermine notions of property, whereas here was a bona fide homeless man who died as a result of the new law.

In answer Mr Weatherley told the Kent Argus: “It is true that some of those who are homeless have squatted but this does not make them squatters.

“A typical squatter is middle-class, web-savvy, legally minded, university-educated and, most importantly, society-hating. They are political extremists whose vision for society is a dysfunctional medieval wasteland without property rights, where an Englishman’s castle is no longer his home …

“If squatters really cared about the homeless then they would help them access council services, not scare them into believing that they would be arrested.”

Mr Weatherley makes an interesting point. Let’s put aside his view that a squatter isn’t really a squatter just because he or she has squatted. The interesting bit is his assertion that “squatters” (the web-savvy anarchist ones) if they cared about squatters (the tiny number of “real” ones) would be out there pointing them in the direction of “council services”.

Such services are indeed available, (see below) though they are pretty limited for people like Mr Gauntlett. But whose job is it to point homeless and roofless people in the right direction? Mr Weatherley seems to think it is a role for the middle class web-savvy anarchists who apparently occupy all the plum squatting sites. It seems more likely, though, to be a duty for the state and emanations of the state – among them the police.

‘It would be much better for us to introduce an offence that is capable of protecting law-abiding property owners and occupiers on the one hand, while working with other government departments, local authorities, the police and homelessness charities … to mitigate any impacts the new offence might have on the levels of rough sleeping’ – Crispin Blunt

Mr Weatherley seems to accept that some squatters need these services but unfortunately the legislation he backed is silent on responsibility for ensuring they get them. We have only the passing comment from the then justice minister Crispin Blunt during the brief Commons debate on the squatting clause:

“Consultation responses indicated that squats can be unhygienic and dangerous places to live and are no place for genuinely vulnerable people. That is why we will ensure that reforms in this area are handled sensitively, in conjunction with wider government initiatives to tackle the root causes of homelessness. We are also working to provide affordable homes and to bring more empty homes back into use.”

Further on he adds: “It would be much better for us to introduce an offence that is capable of protecting law-abiding property owners and occupiers on the one hand, while working with other government departments, local authorities, the police and homelessness charities to continue to address the root causes of homelessness and to mitigate any impacts the new offence might have on the levels of rough sleeping.”

Beyond that it is not clear what policies are now in place to “mitigate any impacts the new offence might have” on rough sleeping. And this is the crucial issue in the light of Mr Gauntlett’s death. The Government and, as mentioned above, “emanations of the state”, including Members of Parliament, have very clear duties to people like Mr Gauntlett. Under the European Convention on Human Rights they should ensure they enjoy “the right to life”. Here is Article Two:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

The second paragraph is unusually restrictive in setting out exceptions about when life can be sacrificed by the state. Such exceptions do not include situations where deaths may result from the passing of laws intended to protect the rights of “law-abiding property owners”.

The new law could result in death in at least two ways: firstly as a result of people being driven from squatting in houses to die in sub-zero temperatures outside; and secondly because they are driven from squats to seek other forms of protection from the elements such as derelict and possibly dangerous industrial and commercial properties.

Mr Weatherley is someone who wants to extend the law against residential squatting to commercial premises. He would doubtless accept that such places aren’t suitable for people to live in and possibly agree with Mr Blunt that squats in general “can be unhygienic and dangerous places”. Banning squatters,  to that extent, may be seen as being in their own interests.

European Court of Human Rights jurisprudence has insisted that national states put in place: “a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life” (see below). Unfortunately Mr Weatherley seems to have failed to include in the anti-squatting legislation a means of helping homeless people who squat out of their unsuitable and possibly dangerous circumstances into reasonably acceptable and safe accommodation. He has opted instead for the solutions of the punitive state – deal with social problems by imposing sanctions and criminal penalties.

It may be unfair to blame Mr Weatherley directly for Mr Gauntlett’s death, but we can say at least this: in promoting legislation that fails to recognise the existence of the marginal homeless and that therefore fails to do anything to help such people, he has made himself part of the problem, not part of the solution.

Twitter: alrich0660

More on the squatting law on Thinking Legally: How protection of property could crumble
Also a piece on Ministry of Justice guidelines on Nearly Legal here.

The Ministry of Justice guidance says:

“There might be instances where the police are asked to clear a residential building that is known to house rough sleepers. In these circumstances, the police might wish to liaise with local authorities and homelessness service providers prior to enforcement action to ensure they are ready to assist if required and give appropriate advice on housing options. This process is likely to work most effectively if protocols on joint working have been developed in advance.
In other circumstances, the fact that somebody is squatting to avoid rough sleeping might only become known once enforcement action has been taken. In these circumstances, liaison with local authorities and homelessness providers would ensure the appropriate advice and assistance is offered to the accused after the point of arrest.”

Note: This post is intended to offer a legal critique of the Section 144 anti-squatting legislation from a human rights perspective. The case of Mr Gauntlett, into whose death an inquest is pending, should not be pre-judged. In particular there is some suggestion that social services did have some involvement with Mr Gauntlett and that the police may have sought to prevent him from breaking and entering the bungalow – an offence that, of course, long predated the new law. Potentially Article 2 of the ECHR could well come into play during a coroner’s inquest into the death of a homeless person since courts are bound by the the Human Rights Act 1998 to take the Convention into account during their deliberations. See R (Middleton) v West Somerset Coroner which notes:

“The European Court of Human Rights has repeatedly interpreted article 2 of the European Convention as imposing on member states substantive obligations not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life.

The European Court has also interpreted article 2 as imposing on member states a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated.”

Cases so far
There have been three custodial sentences of squatters in the months following the passing of the new law. Alex Haigh, aged 21, was the first to be jailed after he was arrested for living without permission in a housing association flat in Pimlico, London. Cameron Makepeace, 18, was given an 18-week suspended jail sentence for a separate burglary after he was arrested in an empty house he had entered intending to squat after an estate agent had left the key in the door. Michael Minorczyk, 27, was sentenced to 15 weeks in jail after reportedly refusing to leave an empty property he had been sleeping in. There is no evidence any of them were web-savvy student anarchists.

Council duties
While councils can provide housing for those in priority need as defined in Section 189 of the Housing Act, (mothers, families with children and those statutorily deemed vulnerable), homeless and jobless men don’t usually come within this category even when the temperature is minus 2C and they have nowhere to go. Part III of the National Assistance Act 1948 (Section 21) says local authorities may provide “residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them”. People like Mr Gauntlett may come within “any other circumstances” and may be able to get basic hostel accommodation from the council. Otherwise local authority “advice and assistance” may be made available under Section 192 of the Housing Act, perhaps pointing them to agencies that can provide emergency accommodation if the council cannot.

Bideford council prayers ruling fails to ban Christianity (shock)

Let us be clear. Britain remains a Christian nation, as Communities Secretary Eric Pickles has insisted – or just as much of a Christian nation as it was before Mr Justice Ouseley ruled that Bideford Town Council had no legal powers to hold prayers during council meetings.

Nor has there been any curtailing of “the right to worship … a fundamental and hard-fought British liberty,” as Pickles suggested. There is not, for example, any ban on Church of England clerics coming within five miles of London; no likelihood of vicars being burned at the stake; no exclusion of members of the Church of England from public office – all milestones (applied by the English state to Catholics and Dissenters) along the road towards establishing the “hard fought British liberty” of worshipping according to the rites of the Anglican state religion (in England, of course, not elsewhere in these islands, where there was a certain amount of resistance to having such British liberty imposed).

But enough of the rant. What actually has Mr Justice Ouseley done if he has not disestablished the Church of England and its communicants? What he has done is look at the powers of local authorities under the Local Government Act 1972 and found that they do not include the power to call elected representatives to a brief act of Christian worship. Such calls are, in the old terminology, ultra vires of the legislatively sanctioned powers of the Town Council.

It is true that Section 111 (1) of the Act (the focus of the judicial review under the Human Rights Act 1998 brought by former councillor, Clive Bone, backed by the National Secular Society) says: “a local authority shall have power to do any thing (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions”.

But “any thing” is not the same as “anything”. It includes only those matters that form the duties or the discretionary powers of local authorities. As the judge put it: “The purpose of the meetings is to transact the business of the Council, which business is made up of the various express and implied functions, duties and powers, which it possesses”. Councils are not sovereign bodies and hence a vote by the council members is binding on nothing and nobody unless it is a vote on a matter within its legal competences.

That is a good thing, part of our “hard-fought British liberty”, since it would be an insupportable encroachment upon British freedoms if public bodies around the country, howsoever their members might be elected, could pass votes on anything and expect the result of those votes to be respected and actioned. Only Parliament can do that.

There is no specific statutory power to say prayers or to have any period of quiet reflection as part of the business of the Council – Mr Justice Ouseley

So the fact that Bideford council had voted to continue saying prayers at the beginning of meetings is a matter of no consequence since Bideford council is a public body regulated by parliamentary legislation. As the judge put it: “The Council has on two occasions by a majority voted to retain public prayers at its full meetings. But that does not give it power to do what it has no power to do.”

He noted further: ”The issue is solely about whether prayers can be said as a part of the formal business transacted by the Council at a meeting to which all Councillors are summoned. It is quite wrong for the Defendant [Bideford Council] to suggest that the Claimants would be introducing a bar on acts of worship before the meeting, thus hindering the exercise by Councillors who wished to pray of their right to do so.” So there is no ban on any hard-fought British rights to worship, privately or collectively, even within secular public property. Only as part of an official meeting of local authority members who are gathered to represent the people of Bideford, Christian and non-Christian, on a strictly limited set of issues laid down by law for a Town Council. “Pluralism does not mean that one religion is entitled to manifest itself on such occasions.”

The judge summed up the matter thus: ”There is no specific statutory power to say prayers or to have any period of quiet reflection as part of the business of the Council. I do not accept … that saying prayers is an act of such a nature that it does not require statutory authority, even by reference to s.111 of the 1972 Act. That provision is … the basis for all the implied powers which a Council might wish to exercise; the word ‘functions’ in s.111 embraces all the duties and powers of a local authority; the sum total of the activities Parliament has entrusted to it.”

There are numerous precedents for the doctrine that local authorities cannot step beyond their powers. Take Roberts v Hopwood (1925) in which Poplar Council had decided to pay a minimum of £4 a week to its staff – above market rates – and to pay men and women equally. The House of Lords ruled that the council had no powers to offer fair pay. Any discretion it might think it had was overridden by its Common Law fiduciary duties to the local rate-payers viz, to pay as little as it could get away with.

Lord Wrenbury put it thus: “A person in whom is vested a discretion must exercise his discretion upon reasonable grounds. A discretion does not empower a man to do what he likes merely because he is minded to do so – he must generally exercise the discretion to do not what he likes but what he ought. In other words, he must, by use of his reason, ascertain and follow the course which reason directs. He must act reasonably.”

A majority vote in council made no difference to that position. In paying fairly the council was “taking account of eccentric principles of socialistic philanthropy” and “feminist ambition to secure the equality of the sexes”, according to Lord Atkinson in the case. That would never do. Or not until Parliament passed legislation such as the National Minimum Wage Act and Equal Pay Act.

Eric Pickles should be well aware of the limits put on the powers of local councils. As Bradford Council leader in the 1980s he sought to institute a ticketing system to control who entered the public gallery for council meetings. It took a judge almost no time at all to declare the move ultra vires – and contrary to our fundamental and hard fought British liberty, to boot.

After the Bideford ruling Simon Calvert, spokesperson for the Christian Institute, complained that: “The logic of the ruling is that councils would also be going beyond the law if they took a vote and decided to start each formal council meeting with the national anthem.” Well yes, exactly. Nor could they take a vote to sing selections from Broadway shows or whistle Dixie. Because voting by members of public authorities does not make all things or any things possible. Only voting on things they have power through legislation to make possible makes things possible.

Note: This post should be read in conjunction with General Powers and Super Pickles, new local heroes on the “general power of competence”, which will change some of the law outlined above

A piece on the Constitutional implications of the religion v secularism debate is here

Note

This was the council clerk, Mr McLauchlan’s evidence on the Bideford prayers:

“Councillors and members of the public are not expected to participate in prayer and are free to leave the Council Chamber during the saying of prayers.  During prayers Councillors are seated. The prayer offered is a prayer led by a Christian Minister from one of the local churches.  In all there are about 8 Christian churches in Bideford and each have, at one time or another, been invited to say prayers. The prayer time normally takes about 2-3 minutes.”

This is Mr Bone’s:

“There was usually a short homily, followed by a prayer for the Council and its deliberations, sometimes ending with the Lord’s Prayer, in which those present were asked to join.  All prayers ended ‘Amen’.  No attempt was made to make it clear that Councillors who did not wish to participate could withdraw.”

Von Hannover and Axel Springer: How big a victory for press freedom?

Two cases at the European Court of Human Rights have been hailed as a victory for the press in its struggle against encroaching privacy laws – but editors would be wise to hold the order for new long lenses. Nor should footballers’ girlfriends be licking their highly glossed lips in expectation of newspaper cash taps being turned on for their kiss and tell stories.

The cases, Von Hannover v Germany (No 2) and in particular Axel Springer AG v Germany should be seen in a peculiarly German context in which “human dignity” and hence privacy, has tended to receive greater protection than in other European countries – including Britain.

It is true that the court in both cases acknowledged that readers and viewers might have a legitimate interest in public figures – but not necessarily just because they are famous. There has to be a context, described as “events of contemporary society” – a public interest reason for publication.

In the Axel Springer case reports about a TV actor arrested and prosecuted for cocaine possession had been injucted by the German courts  – a situation that would be unheard of in Britain. The judgment acknowledged a public interest in legal and judicial matters where the German courts had sought to claim no one should have an interest in the actor beyond his TV role.

In Von Hannover Princess Caroline of Monaco and her husband Ernst August von Hannover complained of harassment by paparazzi and said pictures of the couple on holiday in 2004 did not contributed to a debate of public interest in a democratic society. “They served purely to satisfy the curiosity of a particular readership.” One was accompanied by text critical of some members of the family in relation to the illness of Prince Rainier of Monaco, then aged 80, who died in 2005.

Far from allowing open season on celebrities, the ECtHR acknowledges that “in certain circumstances, even where a person is known to the general public, he or she may rely on a ‘legitimate expectation’ of protection of and respect for his or her private life”. It notes that the issue is the alleged failure of the German state to protect such a right contrary to “positive obligations inherent in effective respect for private or family life” under Article 8 of the European Convention on Human Rights. “These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves” (so-called horizontality explained here).

But privacy rights must be balanced against Article 10 rights to freedom of expression “applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb”.

The articles did not … reveal details about X’s private life, but mainly concerned the circumstances of and events following his arrest – ECtHR in Axel Springer case

The court accepted privacy should be protected when pictures are published for entertainment only, not to illustrate an “event of contemporary society”. However it said: “The Court can therefore accept that the photos in question, considered in the light of the accompanying articles, did contribute, at least to some degree, to a debate of general interest” – on Prince Rainier’s illness (rather strained and oblique criticism in the Bild article of some family members for not being at his side at the time).

Weight is also given to the fact that the subjects of the photographs are public figures and that “the photos of the applicants in the middle of a street in St Moritz in winter were not in themselves offensive to the point of justifying their prohibition”. Publication was therefore not in violation of Article 8.

In Axel Springer AG v Germany the issue was articles about the arrest and later conviction for cocaine possession of a TV star who played a character called “Superintendent Y” for the purposes of the court proceedings. The newspaper story was based on information from the police at the scene of the arrest at the Munich beer festival in 2004. The actor had a previous cocaine conviction.

German courts had imposed injunctions on much of an article and photographs in Bild relating to the story (headlined: “Cocaine! Superintendent Y caught at the Munich beer festival.”) since they “resulted in his being pilloried and discredited in the eyes of the public”. Such reporting would have been justified only for more serious offences, the Hamburg Regional Court held. There was no great public interest in the actor as a private person as opposed to his screen persona.

In effect the argument was that there would not have been such sensational and prominent reports of an ordinary person, so there should not be such reports of a famous actor. He should be protected because he was famous.

The ECtHR rejected this view, noting that the stories were about “public judicial facts that may be considered to present a degree of general interest”. It rejected the suggestion that the actor was not very well known or that he had committed a petty offence. He had also previously sought the limelight. “The articles did not … reveal details about X’s private life, but mainly concerned the circumstances of and events following his arrest”. The German courts’ restraint on publication and penalties imposed on the publishers were a violation of Article 10 with a “chilling effect” on freedom of expression.

None of this would seem to affect the move towards “judge-made” privacy law in Britain, whether on issues such as those of model Naomi Campbell in Campbell v MGN or photographs of JK Rowling and her son. The first is an issue of confidentiality, even in a picture taken in a public space, and the latter is a matter of how far children should come under press scrutiny just because their parents are famous.

So in Von Hannover (No 1), the 2004 case in which the couple succeeded in an application regarding other photos, the European Court said it “considers that the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest”. That position has not changed as a result of the new cases.

(Judgment delivered 7 February 2012)

Good analysis on Inforrm of Axel Springer is here and Von Hannover is here

Other posts on privacy:

Leveson inquiry and privacy law: kiss goodbye to kiss-and-tell

Horizontality and judicial underwear

Jemima Khan and Max Mosley superinjunction tangle

Neuberger superinjunction report

Ken Clarke defends plans for government role in judicial appointments

The Lord Chancellor, Kenneth Clarke, has defended his proposals to give the government a bigger role in appointing senior judges, saying it would help in the important relationship between the executive and the judiciary.

Speaking at the 12th hearing of the House of Lords constitution committee into judicial appointments, he said: “I am in favour of no political patronage in appointments,” adding that his consultation paper, published late last year, makes it clear the Lord Chancellor would not take a direct role. “But with the [appointment of the] Lord Chief Justice and the President of the Supreme Court, there should be greater involvement of the Lord Chancellor because the executive should have more influence in that, but not a decisive one.”

The proposal is for the Lord Chancellor (now Secretary of State for Justice, Clarkes’s preferred title, he revealed) should sit on the panels appointing the two senior roles.

He said: “The one absolutely immoveable thing is that we appoint on merit … The second thing that I regard as absolutely immutable is the independence of the judiciary. No suspicion of political patronage should come back.” He added: “We now have a system that makes it absolutely clear that it is independent of the political sphere.”

Nevertheless he insisted that his proposal to sit on the appointment panels was right. He compared the position of the two senior appointments to that of the Governor of the Bank of England, who was independent and couldn’t be told what to do by the Chancellor of the Exchequer. “But you do meet each other and there’s always stuff coming up [between the judiciary and the executive] where you sort out what your views are.” There is a personal relationship involved because of the issues the Lord Chancellor deals with – issues of case management and accountability for the performance of the Bench. “I think there is an acceptance there has got to be an executive role [in judicial appointments].”

Committee member Lord Norton noted that there seemed to be agreement that the President of the Supreme Court should no longer be involved in appointing his own successor, including agreement from the current president, Lord Phillips. “We also have a view that there should be a minimum of lay members and a minimum of judges [on the appointment panel] but no view on where the balance lies.” Should there be a majority of lay people? he asked. Clarke and Lord McNally, Justice Minister, agreed on the importance of lay members and said the issue of numbers was out to consultation, though Clarke acknowledged the wording of the consultation paper was “quite obscure” on the issue. There was an issue about the sort of people who sat on the committee. “There is a danger of a self-perpetuating quangocracy … a lot of people who look like recently retired civil servants.”

He rejected any idea of confirmation hearings involving parliamentarians questioning candidates because they would inevitably become political. “The American experience is shocking and wanting to get closer to that would be deplorable.” Parliamentarians would start asking nominees what their views were “and obscure events in the past would be ferreted out”. In America questioning seemed to focus on judges’ social attitudes and sexual history. “I’m sure we wouldn’t go that far, but partisanship would creep in.”

Lord McNally noted that “the current system works very well; there should be no view about going back” to the time before the 2005 Constitutional Reform Act when the Lord Chancellor had the major appointing role. However after the latest batch of appointments to the Supreme Court [all white men] “After I faced some hostile questions [in the House of Lords] about gender, Lord Howard sidled up to me and said, ‘If you left it to the Lord Chancellor, you could have as many women as you want’. I think he was being mischievous.”

With the Lord Chief Justice and the President of the Supreme Court, there should be greater involvement of the Lord Chancellor because the executive should have more influence in that – Kenneth Clarke

Clarke registered his reservations about the functioning of the Judicial Appointments Commission, set up under the 2005 Act reforms, though he said there was no problem with the actual appointments made. “The quality remains the same and there is greater transparency.” The issues were cost of appointments, whether they were too process-dominated, how long each appointment takes, (“some of the minor appointments shouldn’t take 18 months”) and the fact that every commissioner need not be involved in every appointment. “The process is taking over from the point, though no doubt I would like it to be rather cheaper and quicker and cut out a little of the form filling and process.”

On the issue of diversity in the judiciary he said: “Once you protect merit as the overiding criteria, [and] the independence of the judiciary, then the policy aim we have is to improve diversity.”

He rejected any idea of setting quotas or even targets for numbers of women and ethnic minority judges. Women did not want people saying “She is one of the women we have to have to get up to target.” However he did acknowledge “If these proposals [in the consultation paper] don’t work then let’s try targets.”

“We want the Bench to look more like the general population,” he said, “so long as you’ve got the most talented and independent people selected from the population.”

He favoured choosing a woman or ethnic minority candidate in “tie-breaker” (or, as he called them, “tipping point”) situations, where there are two top candidates of equal merit (under so-called Section 159 principles, considered here). “I would like to think it’s a principle I have always applied … People say you never get two people of equal merit but I don’t agree. For years I’ve applied the tipping point principle.”

His worry was that high proportions of women and ethnic minority people were entering the profession but that was not feeding through to the judiciary. Of those called to the bar, more than 50% were women, yet they get thinned out at higher levels. This was no longer prejudice but might be to do with the career structure. His consultation paper proposals for more part-time and flexible working might help by allowing women with family responsibilities to “have an edge”.

McNally noted that there was far more flexibility in other professions such as the civil service. “Judges say you can’t have flexible judges. That would disrupt the courts.” 

After Mr Clarke left the hearing, Lord McNally was asked about proposals in the consultation paper that suggested the Lord Chancellor could be given powers to change the legislation on judicial appointments without going through a full parliamentary procedure – so-called “Henry the Eighth powers” – which Baroness Jay, chair of the committee, said “would not be regarded with great enthusiasm” by its members. McNally said: “I think I am reasonably confident in his absence that the Secretary of State would be totally against using Henry VIII powers in this exercise.”

Note: since this posting the bill bringing the Lord Chancellor into the selection committee for the president of the Supreme Court has been published. See the Crime and Courts Bill (May 11 2012) amendments to Schedule 12 to the Constitutional Reform Act which also gives the Lord Chancellor Henry VIII powers to change the appointments procedure (new S. 27A).

The issue of Clarke’s Henry VIII clause is discussed here. The proposals are to “take all those provisions currently detailed within the Constitutional Reform Act (Part 3, sections 26 to 31 for UK Supreme Court appointments and Part 4, Chapter 2 for other judicial appointments) off the face of primary legislation” and put them in the hands of the Lord Chancellor through secondary legislation. (Consultation paper para 27).

The Ministry of Justice proposals on judicial appointments are discussed here

Mr Clarke answered a question on the Judicial Appointments Commission in Parliament on 11 January 2012, saying: “I do not think that the Judicial Appointments Commission can be criticised on the basis of the quality of appointments; I have not heard any credible evidence that people think that quality is deteriorating. However, it is costing too much, it is not very efficient, and it takes too long. Its budget is about £10 million – £9.8 million, to be precise – and it can take 18 months from start to finish to appoint a judge. In the light of the review, we will be looking at that and making sure that it operates with efficiency.”

All the Constitution Committee’s sessions have been reported on Alrich’s Weblog. The previous session is reported here and you can follow the links back to the first.

Leveson inquiry and privacy law: kiss goodbye to kiss-and-tell

One assumes that, when the Sun or News of the World reporters were gathering material on the peccadillos of X-Factor contestants, football stars and Formula One bosses, Article 8 of the European Convention on Human Rights was somewhat distant from their minds. This, after all, is the one that says: “Everyone has the right to respect for his private and family life, his home and his correspondence.”

So when Lord Justice Leveson during his inquiry into phone-hacking and related matters asked of former News of the World chief reporter Neville Thurlbeck: “Did anybody or did you give any thought to the Article 8 rights of the women?” meaning those in the Max Mosley affair, the answer was a little slow in coming but predictable: “There was no discussion about that.”

Why would there be? After all, why let Article 8 of the European Convention on Human Rights get in the way of a good story?

But in fact Mr Thurlbeck showed the concept of privacy law was not wholly alien to him: “I would say the ‘kiss and tell’ story is now largely dead as a genre. In the last three years, we’ve taken great note of privacy matters.” There were now two questions asked of a story:  “That was the second question after ‘is it true’: ‘is it intruding into privacy?’”

So does Britain have a privacy law, albeit one that has never passed through Parliament? The answer must be yes, largely thanks to the ECHR, though we have arrived at it by roundabout means. A related issue, at this time of agitation for a British Bill of Rights based on the English common law, is: would common law have created a privacy law unaided? The answer is probably no.

A case we can use to test the impact of the ECHR in the area of privacy is Malone v Metropolitan Police Commissioner (No 2), 1979, decided in quite different ways by the English courts and the European Court of Human Rights in Strasbourg. This was a police phone tapping case. Malone hoped that English law would have advanced sufficiently to recognise the illegality of unregulated phone-tapping. In the event the court recognised no such thing, with Megarry VC discovering no law against phone-tapping and no principle of privacy upon which he could build such a law. “If the principles of English law … pointed firmly to such a right existing, then I think the court should not be deterred from recognising the right”.

Off to Strasbourg, then, where in Malone v UK the European Court of Human Rights court found the principle clearly set out in Art 8 and ruled that a lack of any legislation on phone-tapping in Britain meant the UK could not claim any of the justifications in Art 8(2) (that any interference with the right to privacy should only be if it is “in accordance with the law and is necessary in a democratic society in the interests of national security etc”). Britain was in breach. The court declared resoundingly: “The Convention protects the community of men; man in our times has a need to preserve his identity, to refuse the total transparency of society, to maintain the privacy of his personality.”

The court’s ruling prompted the UK government to enact such a phone-tapping law, the Interception of Communications Act 1985, which laid out when it was legitimate to undertake phone-tapping – but it was prompted by the pressure emanating from the Convention right to privacy, not common law.

It remained the case, though, that English law did not recognise privacy as a justiciable concept except in terms of breach of confidence. Hence Glidewell J declared as late as 1991 in Kaye v Robertson:

“It is well known that in English law there is no right to privacy and accordingly there is no right of action for breach of a person’s privacy. The facts of the present case are a graphic illustration of the desirability of Parliament considering whether and in what circumstances statutory provision can be made to protect the privacy of individuals.”

As a result a friend of the actor Gorden Kaye failed in this case to stop pictures of the ’Allo ’Allo! star seriously injured in hospital being published by the Sunday Sport.

‘The Human Rights Act does not create any new cause of action between private persons. But if there is a relevant cause of action applicable, the court as a public authority must act compatibly with both parties’ Convention rights’ – Baroness Hale

So where did Britain’s privacy law come from? Enter the Human Rights Act 1998. This, by implication (see wording below), requires courts, as public authorities, to act in conformity with the Convention, not in the sense that an individual can simply go to court to get their article 8 rights (they are binding only on the state and its offshoots) but in the sense that UK law should be interpreted by courts, as far as is possible, to be in conformity with the ECHR.

We move on to the Naomi Campbell case, Campbell v Mirror Group Newspapers, in which the Mirror had published pictures of the supermodel near a drug rehabilitation centre she was attending. In the House of Lords (now UK Supreme Court) Baroness Hale made the link between common law and ECHR law thus: “The 1998 [Human Rights] Act does not create any new cause of action between private persons [as opposed to the state and private persons]. But if there is a relevant cause of action applicable, the court as a public authority must act compatibly with both parties’ Convention rights” – meaning balancing Article 8 and Article 10 on freedom of expression. The cause of action is common law confidence – that no one should make illegitimate use of private material gained in a confidential situation. This had previously only covered matters where there was a pre-existing relationship of confidence – man and wife, master and servant, employee and employer. But in Campbell, the court extended the notion of confidence to the photographer despite there being no pre-existing relationship or duty to the model.

So now a photographer must ask himself this question: I’ve spent the best part of a week, hidden in a hedge, clutching my long lens and I’ve got a snap of someone who would rather I hadn’t. Do I owe her a duty of confidence?

The answer under common law would have been no. Publish and be damned (and lauded by your editor). But bring in the influence of the ECHR and suddenly you have a UK privacy law – the photographer knows in his heart that the picture is confidential; since the photographer possesses it, he has only one obligation – to keep it private. The ECHR, designed to enhance individuals’ rights against the state, has thus added to the rights between private individuals and organizations – it’s called “horizontality” and is explained here.

In the days when Rupert Murdoch and his crew were still a force in this land and had the privilege of prime ministerial protection extended to them, David Cameron was rather cross about judges apparently creating privacy law: “What’s happening here is that the judges are using the European convention on human rights to deliver a sort of privacy law without parliament saying so … we do need to have a proper sit back and think: is this right, is this the right thing to happen?” One wonders what he feels now as the Leveson Inquiry revelations come tumbling out.

Note: This piece does not deal with Scottish law, which does have a concept of confidentiality and is, of course covered bythe ECHR. There seems to have been no legal case establishing Campbell principles in Scotland as yet. Scots celebrities would be more likely to sue in England given media coverage would cover both countries.

A new judgment from the ECtHR, Von Hannover v Germany, February 2012, upholds press rights. Read it here. Also see Axel Springer v Germany here, released on the same day.

Other posts on privacy:

Horizontality and judicial underwear

Jemima Khan and Max Mosley superinjunction tangle

Neuberger superinjunction report

Human Rights Act S. 6:
Acts of public authorities
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
…
(3) In this section “public authority” includes—
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

Ken Clarke’s piratical band hijacks judicial appointments inquiry

What, it must now be asked, is the point of the House of Lords Constitution Committee hearings on judicial appointments?

The committee set out in fair weather in the summer on a stately voyage to explore the waters of the British constitution with the aim of balancing accountability, independence, transparency and the need to foster diversity in judicial appointments.

Meanwhile the oily-fingered engineers in the dark recesses of the Ministry of Justice, headed by the Lord Chancellor, Kenneth Clarke, were constructing a less majestic vessel which they launched as a public consultation document last week – Appointments and Diversity: A Judiciary for the 21st Century.

This seems not only to have taken the wind out of the Lords committee’s sails but to have hijacked the process altogether, with some pretty clear plans – among them proposals to bring a political role back into judicial appointments. Cap’n Ken and his piratical crew are steering the debate, full steam ahead, into waters very much of their choosing.

Baroness Jay, who chairs the Lords committee, made the best of things at her tenth session, saying the Lords report, not to be finalised until the new year, would consider “wider” matters than the merely “mechanical” issues of organisation covered by the Ministery of Justice consultation. Yet, she acknowledged, her committee had yet to get near making any proposals while the MoJ was already thinking in terms of legislation. Some might suggest that, despite the consultation until 13 February, the MoJ mechanics have put the nuts and bolts pretty much in place and they will simply need a quick tightening up when the time comes.

So what are the Ministry of Justice proposals? It must be remembered that the Lord Chancellor, under the 2005 Constitutional Reform Act, has been merged with a new wholly political figure of a Justice Secretary but then largely removed from judicial appointments and from any judicial role. His power of veto in appointments is limited to sending the single name put before him by the Judicial Appointments Commission (JAC) back for reconsideration or blocking it and demanding another name.

The MoJ’s most controversial proposal arises (the MoJ would have us believe) out of the fear that judges are too involved in appointments at a senior level with the danger that they appoint in their own image. This seems particularly to be the case for the UK Supreme Court where justices are appointed by a small panel dominated by the court’s president and deputy-president. Hence, it is argued in some quarters, the debacle over the appointment of Jonathan Sumption. The president is also involved in appointing his own successor.

The answer? The MoJ proposes the Lord Chancellor should have the chance to comment on a short list of judicial candidates for senior posts; that one of the Supreme Court appointment panel members be replaced; and that the Lord Chancellor be on the panel for the appointment of the president of the Supreme Court (and also for the Lord Chief Justice). Apparently the proponents of this plan see no chance of the Lord Chancellor himself exercising undue influence, no possibility of his insisting on appointing in his own political image …

‘There should be no suspicion that politics is influencing appointments. The current system makes clear there is separation with regard to the political influences and the appointment system’ – Lord Woolf

This idea did not find much favour in the latest Lords committee session. Baroness Prashar, former JAC chair, said of the Lord Chancellor’s role: “I think the current role is appropriate … I would not be in favour of the Lord Chancellor sitting on the panel.” Instead “we can have a consultation when a vacancy comes up … to seek a view on the sort of person the Lord Chancellor would like” – meaning the qualities and skills of the person, not who that person should be.

Two former Lord Chief Justices, Lords Woolf (England and Wales) and Carswell (Northern Ireland) saw the political dangers of some of the proposed changes. Woolf wanted the current role for the Lord Chancellor maintained. There should be no great hurry to return to the former position where “the Lord Chancellor dictated what happened”.

Woolf said the 2005 reforms were intended to achieve separation of powers [between the legislature, judiciary and executive: the Lord Chancellor formerly had a foot in each]. “There should be no suspicion that politics is influencing appointments,” Woolf said. “The system makes clear there is separation with regard to the political influences and the appointment system.”

He pointed out: “We are still in the early days of seeing the Constitutional Reform Act reforms settle down and at the moment I think they are working rather well … the principle behind them should be retained.”

He told the committee: “I think it is very good that the message we have for the world outside in this jurisdiction, unlike other jurisdictions, is that there is clear water now between the executive and the judiciary.”

Lord Carswell said he would be strongly against any proposal to give the Lord Chancellor a say regarding a short list of candidates rather than saying yes or no to the single name he receives now. It had been tried in Northern Ireland, with three names offered up instead of one. “It results in political appointments, unquestionably. It has done there and I’m afraid it would here.” Parliamentary hearings on US lines would also be “most unfortunate” since those taking part “would all be seeking to find people with similar views to their own”.

He objected less to the Lord Chancellor having a role in appointing the Lord Chief Justice, and Woolf too could understand why it had been proposed. However, the latter believed the Lord Chancellor’s current powers of veto were sufficient, though he could be at least consulted.

The Ministry of Justice document also asks “whether the role of the Lord Chancellor should have more meaningful involvement in appointments for the most senior judiciary in England and Wales (Lord Chief Justice, Heads of Division, Senior President of Tribunals and Lords Justices of Appeal) as well as appointments for the President of the UK Supreme Court”. In addition it asks whether the Lord Chancellor should transfer his decision-making role and power to appoint less senior judges (below High Court or Court of Appeal level) to the Lord Chief Justice.

One can’t help thinking that Clarke and his successors would happily divest themselves of the burden of rubber-stamping hundreds (686 in total last financial year) of appointments in which they can have little interest and on which they have few opinions. It’s just admin, so one for the Lord Chief Justice, presumably. Lord Carswell was not averse to this change but Lord Woolf was, seeing merit in maintaining the Lord Chancellor’s role and restricted power to reject a candidate. “It may be limited but it does mean the government can’t wash its hands of what’s happening.”

On the issue of allowing the Lord Chancellor to make comments on shortlisted candidates, Lord Woolf noted: “I think there are occasions when they [the politicians] would really like to change what is proposed by the appointments commission.” The Lord Chancellor’s power “has to be confined because once you open the door it will be pushed further and further and we shall be back in the situation where there is a risk, one way or another, that the political system will say who should be the judges”.

All the Constitution Committee’s sessions have been reported on Alrich’s Weblog (and will continue to appear in future despite the argument of this one). The previous session is reported here and you can follow the links back to the first.

Note: since this post the Lords committee has published its report and the Ministry of Justice has published its bill, ignoring their lordships’ concerns

 

Judges too keen to use Human Rights Act powers, says Lord Neuberger

The UK judiciary has become a little too enamoured of its powers to challenge the government as a result of the Human Rights Act, according to the Master of the Rolls, Lord Neuberger.

The head of the Court of Appeal told the eighth hearing of the Lords Constitution Committee into judicial appointments that the relationship between the judiciary and politicians had been changing since the end of the Second World War with “a greater preparedness on the part of the judiciary to review and interfere with decisions of the executive”. This was in part to do with “judicial activism” but more due to the increased power of the executive coupled with, in the last 10 years, the influence of the Human Rights Act. “That in one sense has increased the judicial power and obligation to interfere with executive decisions when they go wrong. But it has also introduced a new aspect in the relationship between the judiciary and Parliament.”

This was a matter of degree rather than principle since judges had not been given power to overturn statutes or declare them unconstitutional, merely declare them incompatible with the European Convention on Human Rights.

“There is an argument that the judiciary, having been given this new power under the Human Rights Act, have become a little too enamoured with it, too keen to exercise it because it is a new power, and it may be that, as things settle down, the judiciary will pull back a bit from what it has been doing.” His instinct was that there would be “a slight retreat” by judges over the next 10 years.

Tie-breakers

The hearing concentrated largely on the issue of judicial diversity and how it might be encouraged through appointments procedure. Committee members were particularly interested in whether “positive action” (as opposed to positive discrimination) as envisaged in the Equality Act 2010 could be used to promote judicial diversity in “tie-break” situations.

Section 159 of the Act (the relevant parts of which are below) envisages a situation in which two or more candidates for a job are found to be equally qualified and a decision is made to prefer a candidate with some aspect of diversity lacking in the organisation – known as “protected characteristics” in the Act. (This issue was considered at an earlier committee meeting, here).

Committee member Lord Pannick said it was difficult to believe two people could be exactly equally qualified but might it be possible, if they had achieved the high standards required, to then take account of the needs of the judiciary to have more women or members of ethnic minorities – just as one might decide one needed the expertise of a commercial lawyer or a human rights lawyer?

You have to look at those who may not have had the same advantages and hadn’t had the same facilities and to see whether they have, not just the same potential, but perhaps even better potential – Lady Justice Hallett

Lady Justice Hallett, Court of Appeal judge and former vice-chair of the Judicial Appointments Commission, said she was a late convert to such positive action as a result of here experience with the JAC. She did not think it was as rare as people thought to find candidates who were equally qualified; they might be qualified in different ways, for example, and Section 159 could be a useful way to promote diversity.

Neuberger had been reported earlier in the week as favouring just such an approach and reaffirmed that he had no problem with Section 159 applying. “Equality of fitness for appointment is a very difficult, very subjective assessment. Some people believe very strongly you can work out in every case whether one person is better than another. I am not of that view … You very often find yourself in a position where you have two candidates who are in your view equally strong.” A difference of 10 or 15 per cent between them would not be significant. “I think therefore that Section 159 has a serious role to play.”

But he added: “I would be concerned about saying that once you have candidates all of whom pass the test, that you should then favour the woman, the ethnic minority, the gay if they are under-represented.”

Since his comments he had been criticised by barristers and others saying “from their perspective it’s patronising”. Women and ethnic minorities wanted to feel they got there on merit. “We have to keep merit as the guiding factor. It’s not the same thing saying women are under-represented as saying human rights experts or commercial lawyers are under-represented.”

Hallett pointed out that it was matter of how you apply merit, not redefining it. In the past it was very much those who had won the glittering prizes or produced the great academic work. “But you have to look at those who may not have had the same advantages and hadn’t had the same facilities and to see whether they have, not just the same potential, but perhaps even better potential.” Too often those appointing looked at those who followed similar paths to themselves.

She believed there was a problem for women with caring responsibilities who do not want to go on the bench because the work is intensive. “The default setting is now frenetic,” she said.

Neuberger felt that those in leadership roles were not doing enough to promote diversity. In the old days appointments were made by the tap on the shoulder by senior judges. “We should be able to tap people [of diverse backgrounds] on the shoulder and say ‘you should apply’.” Such recommendations should then carry weight with the Judicial Appointments Commission.

Asked whether it would be a good idea to set targets, for example, for the number of women in senior positions, Hallett said it would be possible only if the pool of qualified women was large enough at the senior level.

“At the moment you could set a target but your pool’s not going to be big enough to meet your target. You would only meet your target by reducing the merit criterion, diluting it in some way.”

 Note: All previous Lords Constitution Committee meetings in this series on judicial appointments have been reported on Alrich’s Weblog. The seventh session with Baroness Hale is here.

This eighth hearing is web-streamed here

Lord Neuberger’s 2009 speech on the theme of the Supreme Court becoming a constitutional court is here (pdf)

 

Equality Act 2010 Section 159

Positive action: recruitment and promotion
(1) This section applies if a person (P) reasonably thinks that—
(a) persons who share a protected characteristic suffer a disadvantage connected to the characteristic, or
(b) participation in an activity by persons who share a protected characteristic is disproportionately low.

(2) Part 5 [of the Act] (work) does not prohibit P from taking action within subsection (3) with the aim of enabling or encouraging persons who share the protected characteristic to—
(a) overcome or minimise that disadvantage, or
(b) participate in that activity.

(3) That action is treating a person (A) more favourably in connection with recruitment or promotion than another person (B) because A has the protected characteristic but B does not.

(4) But subsection (2) applies only if—
(a) A is as qualified as B to be recruited or promoted,
(b) P does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it, and
(c) taking the action in question is a proportionate means of achieving the aim referred to in subsection (2).

Lord Judge says ignore Europe on human rights – or does he?

Lord Judge or Lord Phillips. Who is right on whether the UK can “ignore” the European Convention on Human Rights?

Well, let’s get the terms of reference right for a start. The Lord Chief Justice, Lord Judge did not actually tell the Lords Constitution Committee that “Britain can ignore Europe on human rights” as the Times had it. And some of what was said in the hearing into judicial appointments (reported here) has been carelessly misreported and reported out of context.

What Lord Judge was trying to suggest is that UK courts, particularly the Supreme Court, do not have the fearsome constitutional powers ascribed to them by the likes of Lord Neuberger (explained here) – powers that would need to be curbed by politicians having a say in Supreme Court appointments. It is not a Supreme Court in the American sense with the constitutional right to strike down legislation – at least, not because of the Human Rights Act.

During the hearing he said: “The introduction of the European dimension and the introduction of judicial review of government action in particular hasn’t altered the basic principle which is that we [judges] try to discover the law and having discovered it, say what it is”. But he made clear that, in the case of the ECHR “the final veto remains with Parliament” – in contrast to European Union law. “EU law must win,” he said, the reason being that the principle of European Union supremacy is enshrined in UK law, the European Communities Act 1972, Section 2:

“(1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly.”

So any European Union law arising out of EU treaties is directly applicable in Britain and will be upheld in British courts. This involves accepting the “acquis communautaire” – the years of case law from the Court of Justice in Luxembourg. It is a requirement of accession that the “acquis” be accepted by new member states.

‘I would like to suggest that maybe Strasbourg shouldn’t win and doesn’t need to win, that the court of Luxembourg has to win because the legislation says so’ Lord Judge

The position regarding the ECHR and the judgments handed down from the European Court of Human Rights in Strasbourg is rather different and somewhat subtler. Lord Judge told the Constitution Committee:

“I would like to suggest that maybe Strasbourg shouldn’t win and doesn’t need to win, that the court of Luxembourg has to win because the legislation says so. The legislation is absolutely unequivocal that decisions in the European Court of Justice [of the EU] are binding on this country.” He added: “I think for Strasbourg there is yet a debate to happen – it will have to happen in the Supreme Court – about what we really do mean in the Human Rights Act, what Parliament means in the Human Rights Act when it said that the courts of this country must ‘take account’ of the decisions of the European Court of Human Rights.

“I myself think it’s at least arguable that, having taken account of the decision of the court in Strasbourg, our courts are not bound by them. We have to give them due weight, and in most cases obviously we would follow them, but not, I think, necessarily.”

This is a rather loose way of saying that, contrary to popular misconception, the Human Rights Act 1998 did not “incorporate” ECHR law into British law. What it did do was say that UK law should be “convention-compliant” (and a minister must sign off all new legislation as such); that where possible, UK judges should interpret new and old law to be convention-compliant; and hence individuals would be able to access their rights under the European Convention in British courts rather than heading expensively to Strasbourg.

Section 2 of the Act says: “(1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—
(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights … [etc]
whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.”

This, as Lord Judge pointed out at the Constitution Committee, applies to judges “down the judicial chain”. It is not just for big challenges in the big courts. Note also the words Judge picks out as controversial: “take into account”. Britain is not required to produce legislation that is an exact replica of some idealised European legislation held in Strasbourg. Britain produces its own legislation on whatever multifarious issues it thinks fit. Parliament remains supreme, though that legislation should be convention-compliant. That is what judges must “take account of”.

‘The Human Rights Act is designed to ensure that effect is given to that part of the rule of law which says we ought to comply with our conventions’ Lord Phillips

And if they find it is not compliant? Judges, whether in Strasbourg or Britain, cannot strike down primary legislation duly passed by Parliament (secondary delegated legislation is a different matter). What they can do, if they cannot interpret the legislation in a convention-compliant way, is set out in the Act, Section 4:

“(4) If the court is satisfied—
(a) that the provision is incompatible with a Convention right, and
(b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility,
it may make a declaration of that incompatibility.”

Whether that counts as Strasbourg “winning” is a moot point. What Lord Phillips, the president of the Supreme Court, said was: “In the end, Strasbourg is going to win so long as we have the Human Rights Act, and the Human Rights Act is designed to ensure that effect is given to that part of the rule of law which says we ought to comply with our conventions.”

He said “comply with our conventions” not, as reported in the press “comply with the convention”. He was making the point that there is a general rule of law, accepted internationally and by UK judges, that says if we sign a treaty convention we must be bound by it. The HRA backs up that long-established rule of law in the case of this particular convention.

Certainly the Government would be wise to take the judgment and declaration of incompatibility into account and look again at the Act that has been challenged. Take the vexed issue of prisoners’ votes. The finding against the Government does not mean it must immediately give all prisoners all their votes in all the elections that otherwise they would have missed. It does mean that the Government should come up with a reasonable scheme to ensure, broadly speaking, prisoners are not excluded from democratic rights. (A sensible idea might be that they be registered to vote on their release; or that those on short sentences be allowed to cast postal votes in elections where they will have an interest on release.)

The Government would be wise to produce something convention-compliant in this and other matters not least because if they don’t they are offering open goals for more and more litigants taking such matters all the way to Strasbourg. The consequence of that is not that Strasbourg will strike down legislation with a clean blow, but that it will fine the Government. Again and again. They aren’t generally large fines but the costs are, so the Government would not wish to put itself in the position of having to fight multiple doomed cases.

So Britain cannot ignore Strasbourg, and doubtless Lord Judge did not mean to say it could (‘ignore’ does not mean the same as ‘take account of’, after all). But judges are interpreting UK legislation, not Strasbourg legislation. They will interpret it according to UK conditions – the conditions of one of the world’s great parliamentary democracies, wholly signed up to the principles of human rights – principles that Britain largely drafted on behalf of the Council of Europe in 1950.

A piece on the even more vexed issue of “horizontality” – how far UK judges can extend human rights to issues between individuals and organisations as opposed to the government, is here: Privacy, human rights, horizontality and the issue of judicial underwear

Note: This is how Shami Chakrabarti, director of the civil rights group Liberty, summed up Lord Judge’s view: The requirement to take account of Strasbourg without being bound by it “creates a dialogue between the domestic and international judiciary, allows the Supreme Court to disagree with Strasbourg and thus to influence human rights thinking across the Council of Europe”. In other words the UK tail can sometimes wag the Strasbourg dog.

Lord Irvine has given a lecture (Dec 2011) covering some of these issues, particularly what is meant by “shall take account” of ECtHR judgments: here

Adam Wagner’s view on the UK Human Rights blog is here

Jack Straw and Lord Falconer, titans of the Lords Constitution Committee arena

It was a battle of the Titans, and, given the usually quiet, orderly atmosphere of the House of Lords Constitution Committee, and given the subject matter, judicial appointments procedure, it was almost quite exciting. In the red corner, Jack Straw, Lord Chancellor under Gordon Brown; in the also somewhat reddish corner, Lord Falconer, a former Lord Chancellor to, and friend of, Tony Blair (friend in the modern political sense, that he was often mysteriously seen with Blair on official business, claiming to be his “adviser”).

The buffer, as it were, placed between these antagonists for their own protection was yet another former Lord Chancellor, Lord Mackay of Clashfern.

The issue was who should appoint members of the judiciary – and each of the three had rather different ideas. Straw made his startling claim: the UK Supreme court is a shadowy unaccountable organisation that is, shockingly, “developing a social policy” which it is imposing on the unsuspecting citizens of Britain by issuing so-called “judgments” – new forms of legislation that had overthrown the supremacy of Parliament.

Well, he did not take it quite this far. In fact he was at pains to point out that he personally had nothing against what the Supreme Court was doing, that most people would obviously agree with its excellent judgments on letting (alleged) terrorists and child molesters wander the streets freely, that he could understand quite how they had found themselves in the terrible position of being legislators rather than interpreters of legislation: it’s all the fault of that pesky Human Rights Act (you know, Labour’s pesky Human Rights Act of 1989).

But since the Supreme Court was developing a social policy, there needed to be some political control of who was developing it. The current legislation on this was not fit for purpose (you know, Labour’s pesky Constitutional Reform Act of 2005).

And here Jack had a sad personal story to tell. When he had tried to exercise even the minimal rights of intervention in the appointments process regarding a Divisional Court appointment, his (in his view) restrained and collegiate attempts to have another candidate considered were leaked to the Times and he had to abandon them. He was coy about the details but we can exclusively reveal (unless you have a Times paywall sub) that he was referring to his attempt to have the appointments panel rethink the proposed appointment of Sir Nicholas Wall to fill the post of President of the Family Division (see note below).

This he was wholly entitled to do under the legislation (the Lord Chancellor can accept or reject the selection, or else ask the appointment panel to reconsider its choice, giving reasons). But he is supposed to do it quietly and confidentially. Instead it was leaked, it became unpleasantly political and, Straw declared, there was even a move to have him JR’d.

This, to be clear, does not mean there was a plot to ensure he shared the mysterious fate of John Ross Ewing of “Who shot JR” fame or his credibility-stretching comeback. It was rather the almost equally bizarre possibility that a Lord Chancellor could be judicially reviewed by a High Court judge for his attempt to influence the appointment of a Divisional Court judge.

His fellow former Lord Chancellors showed scant sympathy, both saying he should have stood his ground and risked the somewhat unequal court battle. As to leaks, Falconer pointed out that they never happened from his department on his watch since his staff behaved as if their tongues had been cut out (or maybe their lips sewn up – something pretty non-ECHR-compliant at any rate). Blame the judges. “Judges can’t stop talking to the press.”

‘The idea that a member of the cabinet, appointable by the Prime Minister, should be the person who appoints the people the Prime Minister and Home Secretary are attacking is in effect an unthinkable situation’ Lord Falconer

Nor did Falconer see in Straw’s tale of woe an argument for handing some form of say in appointments to parliamentarians or returning it to the Lord Chancellor, Lord Mackay’s preference. Mackay said: “It is important that the Lord Chancellor should continue to have a role and I’ve never objected to the Prime Minister having a role”, though he added that that was on the basis that Prime Ministers always accept the view of their Lord Chancellors. Their roles ensured that people saw there was government approval for the appointment, that “the government as a whole is responsible”.

Falconer saw the flaw in all this. Previous prime ministers and home secretaries had sought to gain political advantage by attacking the judges – as the current incumbents continued to do. “The idea that a member of the cabinet, appointable by the Prime Minister, should be the person who appoints the people the Prime Minister and Home Secretary are attacking is in effect an unthinkable situation.” The appointments should be beyond the reach of the PM and Home Secretary – though he defended the current limited role and powers of the Lord Chancellor. He sees reform of the Supreme Court appointments more on the lines of adding more lay members to the present tiny judge-dominated 5-member selection panel.

Straw was unsure what he wanted but said there should be a parliamentary role – possibly with the chair of the Lords Constitution Committee and the Commons Justice Committee meeting to deliberate on the choices. Presumably he hopes to guarantee himself a good write-up from Baroness Jay in the final Lords committee report.

It seems inevitable that the Lords committee will recommend change to the appointment procedure in the report, expected by the year end, and also that the Government will embrace it. But it is more likely to head back to something closer to Mackay’s position or even Straw’s than to extend the full Judicial Appointments Commission system up the ranks to the Court of Appeal and Supreme Court.

The legal establishment would balk at more JAC control of the higher echelons since, apparently, top judges, barristers and solicitors, supremely confident as they seem and able to hold a court of law in thrall with their eloquence, are rather shy of putting themselves forward for high judicial office if there is any great risk of, as Straw put it, being “knocked back”. How much more so if they had to go through the days of filling out application forms, the panel interviews and the role play that is the modern human resources way of doing things.

A straight report of this hearing, the fourth of the Lords Constitution Committee into judicial appointments, is here

The third hearing with some background and the JAC view is here

The fifth hearing, with Lords Phillips and Judge, is here

A monumentally detailed piece on the legal/constitutional issues by ObiterJ is here

Note:

The Times article of March 4 2010 begins thus: ‘Jack Straw has challenged the appointment of a new head of the family justice system who castigated the Government over its policies, including opening family courts, The Times has learnt. An appointments panel staffed by senior judges put forward Sir Nicholas Wall to fill the post of President of the Family Division, but only one month before the post is vacated no announcement has been made.’

Jack Straw on judicial appointments: yes, Parliament must have a role

The focus in the debate on judicial appointments has turned on the Supreme Court. Jack Straw, former Labour Lord Chancellor, has told the Lords Constitution Committee hearings into judicial appointments that the process for selecting the Supreme Court judges is not satisfactory (polite speak for totally out of order).

He told the fourth hearing: “Effectively we’ve ended up with a system where the president of the Supreme Court is selecting his successors, and that can’t be satisfactory. It defies every constitutional principle.” He said: “I do not believe the current system is a sustainable model and will have to be changed.”

There was also public concern, he said, about the Supreme Court “legislating in areas of social policy”. It was right to ask questions about this and perfectly legitimate for Parliament to have a role in appointing to the Supreme Court because of it.

Former Lord Chancellor Lord Falconer rejected the idea and insisted: “Do not mix politics with the appointment of the judiciary.”

Straw made clear that he believed there was a role for Parliament but not for the executive in appointments whereas the reverse was true for the Court of Appeal and below – a role for the Lord Chancellor but not for parliamentarians.

“There is plainly a lack of mutual confidence between the senior judiciary and this place [Parliament] in respect of the role of the senior judiciary and its broadening authority into areas that are inevitably political.”

If, as is likely whichever government is in power, there was a gradual detachment of our system of law from the European Court of Human Rights in Strasbourg that would make the UK Supreme Court “more powerful, not less”. Since it had the power under Section 4 of the Human Rights Act 1998 to declare laws incompatible with the European Convention on Human Rights “there’s an unexploded bomb in the middle of the minister’s room”. This justified a legitimate role for Parliament in appointments, not the “obscenity” of US-style public hearings but possibly representatives from the Lords Commission and the Commons Justice Committee.

‘If you bring in the politicians you are inevitably putting the politicians in the position where they will express a preference as to the type of person they want as a judge’ Lord Falconer

Straw insisted, citing the human rights cases, that there was declining public respect for the “social policy” Supreme Court judges appeared to be pursuing. “The Supreme Court has developed a social policy. I don’t blame them for this.” They were making decisions in areas they weren’t four years ago and there had been a shift in how they interpreted Section 2 of the Human Rights Act [on how UK judges assess ECtHR jurisprudence in coming to their decisions]. “When Lord Bingham was in the chair he had one view and now there is another lot who have a rather different and narrower view, which personally I welcome. It’s nothing to do with their politics.”

It was legitimate for parliament to ask how far the Supreme Court feels it should be legislating in areas of social policy.

For Lord Falconer this was the danger of political input. Parliamentarians would ask whether candidates took the “Bingham view” or the “Phillips view” (the view of Lord Phillips, current president). They would say, “if you take the Bingham view we would be very keen to support you and if you take the Phillips view we would not”.

He accepted that many decisions of the Supreme Court had been politically controversial (Belmarsh, sex register). “But it’s clear we want [a case] to be decided on a judicial basis not a political basis.” Thus: “If you bring in the politicians you are inevitably putting the politicians in the position where they will express a preference as to the type of person they want as a judge” – perhaps a Baroness Kennedy on the left or a Lord Campbell of Alloway on the right. The consequence would be that “the Lord Chancellor would be put under pressure as to whether he said no to particular appointments”.

The perception that the British judiciary was independent in appointment and in the job they did meant civil liberties were safe, the quality of judges was not diluted (in contrast with the US) and Britain attracted commercial parties from abroad willing to have their disputes in British courts. “Do not mix politics with the appointment of the judiciary.”

He accepted there was distrust among politicians and the public and suggested judges could come to meetings to explain their actions – but post-appointment, not before.

Comment

Mr Straw’s phrase “selecting his successors” is significant in the light of the suggestion floated by Joshua Rozenberg in his Guardian blog that Lord Neuberger, Master of the Rolls, would be a good replacement for Lord Phillips when he stands down. Lord Phillips would chair the appointment panel but it must be said the two mens’ approaches are rather different. Phillips has a somewhat romantic notion of the role of the Supreme Court in its relations with government. In the BBC4 series on the court he shone with a glow of righteousness as he explained its resistance to government oppression in holding terrorist suspects without trial (A v Home Secretary) – enraging the Labour Government and not encouraging much love from the Conservatives.

Neuberger takes a different view of the court which may or may not have caused him not to join it on its formation in 2009 and prefer the hard slog in the workhorse of the appellate system that is the Court of Appeal Civil Division.

Neuberger feared the Supreme Court would, with the might of the European Convention on Human Rights in its collective back pocket, become a constitutional court, rendering legislation passed by a democratically elected and nominally supreme Parliament nugatory if it failed to meet its exacting standards.

As Joshua Rozenberg points out in exchanges on his blogpost about this matter, such a view would not prevent him taking up the reins of the Supreme Court – not least since he would be able to put a stop to that sort of nonsense. It would, too, be an appointment devoutly to be wished by the Government and senior opposition figures such as Straw. Neuberger is a trusted pair of hands, a black letter man, not one to encourage “creative” judging or excessive deference for the European Convention. But as things stand, the Government cannot have its say, as Jack Straw pointed out at the Constitution Committee hearing.

And since Phillips is intending to retire sooner rather than later, the Constitution Committee will have to get a bit of a lick on, and the Government will have to have its reforming legislation on standby if they really want to put a halt to his dangerous social policy development for another generation.

A sketch of this “interesting and vigorous”  (Lord Crickhowell) and “entertaining” (Lady Jay) fourth hearing with Jack Straw battling Lord Falconer is here  

Note: All the Lords hearings so far into judicial appointments have been reported on the Alrich Weblog. The third hearing (with a round-up of earlier hearings) is discussed here