Friday 13 May 2016

Parliament prorogued - Hillsborough - Finucane remembered - Judicial Power

Filey (see here)

The Parliamentary Session 2015-16 ended on Thursday 12th May.   Parliament is "prorogued" until the Queen's Speech on 18th May.   Certain Bills received Royal Assent and became Acts of Parliament on Thursday 12 May 2016:

The Criminal Cases Review Commission (Information) Act 2016 is an example of a private member's bill becoming law although, in this case, it had government support.  It is an important Act in that it fills a gap in the Commission's ability to obtain information to assist its investigations.  It enables the Commission to apply to the Crown Court for an order requiring NON-public bodies to give access to a document or other material.  See Previous Post 9th July 2015


Hillsborough has, rightly, continued to attract attention.

Mr Andy Burnham MP has called for cross party support for certain reforms to be tabled as amendments to the Policing and Crime Bill.   An important aspect of Mr Burnham's proposals is a right for bereaved families to receive the same funding as police for legal representation at inquests.  Too often, as argued at The Coroners Court - a system that cannot remain unreformed, families do not receive legal aid at those inquests where there is concern that a public body may be implicated in the death under investigation.  The provision of legal aid should extend not only to inquests where the Police are involved but also where any body providing public services is involved.  Mr Burnham MP is also proposing that time limits on when a retired police officer can be investigated for misconduct are dropped and that the Government proceeds with an inquiry into relations between police and the Press as put forward by Lord Leveson - (Leveson Report Volume II pages 741-994).

It is reported that the Independent Police Complaints Commission (IPCC) is to investigate allegations that South Yorkshire police tried to influence daily media coverage of the Hillsborough inquests and spin what the force considered to be evidence favourable to it - The Guardian 12th May 2016.

Finucane remembered:

The New Statesman 11th May published an article about the murder, in 1989, of Belfast lawyer Patrick Finucane.  An Independent Review of this case was undertaken by Sir Desmond de Silva QC and reported in late 2012 - previous post - Northern Ireland - the 1989 Finucane murder - Independent Review Report.

Judicial Power Project:

a) What is the Project?

The Judicial Power Project operates under the aegis of Policy Exchange and it issued a list a what it describes as 50 Problematic Cases.   It is an interesting project asking us to look at judicial decision-making and the role of the judiciary.  The Project states:

"One of the aims of the Judicial Power Project is to stimulate debate about the proper bounds of the judicial role. As visitors to this website will know, our concern is that the judicial role is expanding in ways that threaten constitutional self-government and the rule of law. A particular concern is to draw attention to the many different ways in which judges fail to respect the limits of their role. Criticism about judicial overreach often focuses on the decisions of the European Court of Human Rights and the EU’s Court of Justice. Equally important are the many cases in which domestic judges have improperly ventured beyond the limits of their role. Ascendant judicial power is often most visible in the context of questions about how to protect human rights, but it also extends much more widely than this. And the cumulative consequences of this expansion of judicial power are troubling, with some of those consequences so ably discussed by the lecture by Professor Jeffrey Goldsworthy that launched this project just over a year ago."

b) Criticisms:

Concern about judges either going too far (the usual complaint by politicians in human rights cases) or not going far enough (the complaint of those who feel the courts have not given them justice) is not new.  Interestingly, Joshua Rozenberg has taken issue with the Project in his article published by The Guardian 12th May - "A judge-shaming list is bad for justice".   Rozenberg wrote:-

"Nobody wants to go back to the days of Lord Denning’s “palm tree justice”, when the law applied by his court turned out to be pretty much whatever he wanted the law to be. But nobody wants to go back to the time when the law turned out to be pretty much what the government wanted it to be, either.

The law, as applied by the courts, needs to be certain and predictable. But we don’t need the sort of judges who are too frightened to do anything for the first time. It seems from the project’s summaries that many of the cases have been included because the judges who decided them tried not only to follow the law but also to deliver justice. In my book that’s qualifies you for the hall of fame, not shame."

(Sidebar)!  It is questionable whether Rozenberg's criticism of Lord Denning as delivering "palm tree justice" is entirely fair but that will have to wait for another occasion!  We need not be uncritical admirers of any judge but it is now 34 years since Lord Denning last sat in court and, for now, I will leave you with the Valedictory Speeches.

(Back on the tracks)!  Professor Mark Elliott on his Public Law for Everyone blog (9th May) has also been critical of the Project's list of cases.  Elliott looks at some of the cases in the list and notes the Judicial Power view of the case and then offers his own view of it.   For instance, on the Nicklinson case, Professor Elliott notes:

Judicial Power’s account: Despite clear Strasbourg case law upholding legislation that bans assisted suicide, a majority in the Supreme Court were willing in principle to go beyond Strasbourg and to tell Parliament that the law on this contentious issue of public policy was contrary to Convention rights and should be reconsidered. The judgment invites further litigation.

Alternative account: The Supreme Court recognised that the position taken by the European Court of Human Rights on this matter was informed by the margin of appreciation doctrine, the purpose of which is to restrain the role of the Strasbourg court in situations in which its transnational status warrants deference to national authorities. A majority of the Supreme Court further recognised that as a domestic court, its role was not circumscribed by the margin of appreciation doctrine. A majority of the Court exhibited deference to Parliament, either by declining to conclude that UK legislation breached the ECHR or by declining to issue a remedy in the form of a declaration of incompatibility under the Human Rights Act 1998.

The Supreme Court's judgment in Nicklinson, Lamb and Martin was considered here.  Parliament has still not acted to alter the law relating to Assisting Suicide.  In the absence of action by Parliament, the judges may yet again be called upon to look at this subject.

c) Some discussion:

The Judicial Power Project does not appear to me to be trying to shame any particular judges.  Rather, the Project is asking a legitimate question about the proper role of the judges and it is not possible to deny that there has been a large expansion in the judicial role relating to challenges to the use of executive power irrespective of whether the executive power has been exercised by central government or other public bodies.

It may be instructive to consider a case NOT included in the Power Project's 50 - The Tony Bland case.  Mr Bland was a victim at Hillsborough.  He suffered a severe crushed chest injury which gave rise to brain damage. His condition rapidly deteriorated and despite the intensive efforts of doctors and nurses he remained in a state of complete unawareness: “persistent vegetative state” (“P.V.S.”).  Unanimous medical opinion was that there was no hope of recovery or improvement and the question of removal of life support was raised but the medical staff and Mr Bland's family required some assurance that they would not be acting unlawfully.  Ultimately, the life support was removed following the decision of the House of Lords in Airedale NHS Trust v Bland 1993.

The judges held that, in such cases, application should be made to the High Court to determine whether withdrawal of the life support system would be lawful in the particular case.  When the case was in the Court of Appeal, Sir Thomas Bingham MR (as he then was) referred to the need for application to the court as "a wise ruling, directed to the protection of patients, the protection of doctors, the reassurance of patients' families and the reassurance of the public."  He went on to say that - "It may very well be that with the passage of time a body of experience and practice will build up which will obviate the need for application in every case, but for the time being I am satisfied that the practice which the President described should be followed."

Again in the Court of Appeal, Butler-Sloss LJ said - "I have anxiously considered whether this is a decision which ought to be taken by the doctors alone. As the House of Lords said in In re F [1990] 2 AC 1, it is not generally for the courts to intervene in the decision-making process as to whether a course of action is in the best interests of a patient. That process is for the doctors. The B.M.A. have laid down careful guidelines for these cases. Nonetheless in In re F. the House of Lords recognised an exceptional situation which required guidance from the High Court. I have been persuaded by the amicus that in a decision-making process of such gravity as whether to continue treating a P.V.S. patient, the intervention of the High Court is a proper safeguard. I respectfully agree with the formulation of the procedures proposed by the President and that, for the time being at least, each application to discontinue treatment should be made to the High Court. The rapid advances of medical technology create problems which may require the intervention of the courts from time to time. Such intervention may also reassure public concern."

Those extracts demonstrate that judges are all too aware of their remit.  In the Bland case the judges undoubtedly addressed a matter that Parliament had not, at the time, addressed.  Can there be any doubt that they were right to have done so?

Professor Elliott has suggested that the real point is how the three fundamental principles of the British constitution — the sovereignty of Parliament, the rule of law and the separation of powers — relate to one another.   The practicalities have always been worked out through having judges who, when occasion demands, have not been afraid to push the boundaries and then it is for Parliament to intervene if it considers that to be required.  It is a pragmatic system which, I submit, has proved its worth over many years.

Footnote:  The Hillsborough Jury Determination relating to Anthony Bland may be read here.

This article by Nigel Poole QC will also be of interest.  It concerns the Rabone case (Judgment)


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