Revision Update: UK Judiciaries and Rights

Composition of the JudiciaryDespite the creation of a judicial appointments commission, there have been no significant changes to the make-up of the UK Supreme Court. Lord Neuberger, the president of the Court himself stated “We are not getting the best people as judges, because there are a whole lot of women out there who will be better than some of the men.” This was after three new appointments to the Court of twelve were all male.New appointments: Lord Justice Hughes (64); Lord Justice Toulson (66); Lord Hodge (59)The only female on the Court remains Lady Hale who is tipped to become deputy president when the post becomes available in May.There is a mandatory retirement age of 70 which should allow for periodic injections of youth as evidenced above!Given their key role in the interpretation of the law and the soon to be acquired powers in “secret courts”, such a narrow social background might be viewed as a concern. In the past, judges have been accused of being conservative and Conservative. Recruitment that resulted in a Supreme Court that looked more like UK society would help allay some of those fears. The fact that the last four appointments have been male would suggest that Judicial Appointments Commission is yet to have an impact.

RIGHTS

As might be anticipated, the executive seems to have led the way in attempting to curb civil liberties and it has fallen onto parliament and pressure groups to attempt to rein the government back.

1.) The Draft Communications bill also known as the “Snooper’s charter” was regarded as paying “insufficient attention to the duty to respect the right to privacy” and “going much further than it need” by the Joint Committee that reported to Parliament.

After criticisms from their Liberal Democrat coalition partners, the Conservatives agreed to dilute the proposals in the bill.

2.) Similarly with regard to the Justice and Security bill which grabbed the headlines as they intended to establish “secret courts”, the government stepped down a little. Initially they had wanted ministers to decide which cases would be closed material proceedings (CMPs). By the time of the second reading however, the government had yielded to concerns from pressure groups Liberty and the House of Lords and proposed that judges should decide which cases would be CMPs. These changes along with the increased powers given to the Security and Intelligence Committee lead some to conclude that “no other country in the world has gone to the lengths that Britain has to ensure their intelligence agencies are subject to the rule of law.”[1] In the past, with cases such as Binyam Mohammed, the government paid compensation rather than reveal their intelligence in court. The act is supposed to allow that evidence to be made known but only to the court and the accused and the public. This will at least allow a trial to be held which an independent judge can decide. A “closed” trial is better than no trial, it is argued.

Increased powers for the Intelligence and Security Committee (see chapter on Parliament) also help ensure that the government’s security services will be kept in check. The former head of MI5, Eliza Manningham-Buller, already believes that the committee “has built up substantial expertise and is rightly demanding of those who appear before it.”[2]

Others point out though that there is still insufficient scope for judicial discretion. A trial could be conducted with the accused not knowing what evidence obtained against him was or where it came from. Chakrabarti argues that “evidence presented in private and not challenged by the other side is not evidence at all”. [3]The government argue that this is so as to protect the national security interest. Such a trial though flies in the face of long established legal principles which many would state represent a blow against the fundamental principle of the rule of law. Lord Kerr in the Supreme Court said in 2011 “the right to be informed of the case made against you is not merely a feature of the adversarial system of trial, it is an elementary and essential prerequisite of justice.” Similarly Shami Chakrabarti stated the act “overturns more than 400 years of civil justice – effectively putting government above the law. This bill would change the face of our civil justice system for ever.”[4]

3.) There is a continuing debate about the viability of the Human Rights Act. High profile cases such as over the deportation of Abu Qatada and the right of prisoners to have the vote have allowed some Conservatives to challenge the existing arrangements and to propose that the UK adopt its own British Bill of Rights. It should be noted that their bill of rights would weaken rather than strengthen the rights and liberties of individuals in the UK. It would curtail the ability of the judiciary to review the actions of the executive and the legislature.

Chris Grayling the Justice Secretary stated after the Eastleigh by election defeat that a majority Conservative government would scrap the Human Rights Act after the next election and Theresa May is said to be fleshing out the details of such a move for inclusion in the manifesto for the 2015 election.

This would involve withdrawal from the European Convention of Human Rights of which the UK was a signatory to in the 1950s. Some argue that this would require our exit from the EU[5] as new members have to sign up to the ECHR. Others argue though that this condition does not apply to existing members and that the UK could still adhere to the principles of the ECHR without the option of referral to the European Court of Human rights in Strasbourg.

Lord Neuberger, president of the Supreme Court, argued that deportation of suspects to countries that use torture was contrary to the UN Universal Declaration of Human Rights and would thus require the UK to withdraw from the UN as well.

A bill of rights commission failed to reach a conclusion in 2012 and some Conservative ministers such as Ken Clarke have strongly defended the Convention. He argued “you need a convention on human rights ..when unpopular individuals are being campaigned against in the newspapers.”

As mentioned elsewhere, one needs to identify the political posturing surrounding this whole issue. The opportunity to challenge judicial rulings on issues such as prisoners’ voting rights and the failed deportation of Abu Qatada represent something of an open goal to politicians. They can be quick to bash the judges and the European Court safe in the knowledge that the public will mostly support their view. Perhaps more importantly it might appease dissatisfied Conservative supporters who may be contemplating defecting to UKIP.

A THREAT TO THE RULE OF LAW?

The Justice and Security Bill has recently been able to pass through the House of Lords and yet to many the proposals in the bill undermine one of the basic principles of the British Constitution, that of the Rule of Law.

The British Constitution is based upon four core principles: parliamentary sovereignty, the unitary state, a constitutional monarchy and the rule of law. This last principle” does exactly what it says on the tin”! It establishes that the law rules. That is to say that no one is above the law. On the front of the US Supreme Court building it proudly states “Equal Justice under law” and it is feared that this bill could threaten this basic principle. This is because the bill intends to change legal procedures which challenge this concept of equal justice.

The government argue that in certain cases relating to national security that they cannot reveal in open court the evidence they might have against a suspect. The government argues this could compromise the sources of their intelligence and potentially weaken their attempts to monitor security threats. When Binyam Mohammed sought to claim compensation from the British government for alleged collusion with US security forces in his rendition (forced kidnapping) and subsequent torture, the government decided not to contest these charges as they did not want a court hearing.

The new bill would allow closed material procedures which many have labelled “secret courts”. The outcome, if implemented, of this bill would mean that the case against a suspect would be heard by the judge alone. The accused would not have access to the evidence against him, nor would his legal representation. He would be represented in court by a special advocate.

There are several major arguments against such procedure. These include:

1. Does this put the government and security forces above the law and thus contradict the basic premise of the rule of law?
2. Does this allow for a fair trial? A basic principle of the adversarial judicial system is that evidence is in the public domain, that there is openness and transparency. Justice, it is said, must be seen to be done. The right to trial by jury is a fundamental principle of our legal system.
3. If the government have evidence, they can still present their case. Public interest immunity allows for certain evidence to be withheld and thus there is no need for this further reform.
4. This new procedure might allow the government to mask their involvement in torture and other illegal practices. The government should ensure that they have nothing to hide so that they can present a case. At the present times, attempts to deport Abu Qatada have failed as he cannot be assured of a fair trial in Jordan. The onus then is on the government to present a case against him in a British court. The basic fact remains that even suspected terrorists have rights. During the terrorist wars against the IRA in the 1980s and 1990s, there were several miscarriages of justices which resulted in “convicted terrorists” being subsequently released (The Birmingham 6, Guildford 4, Judith Ward), this would suggest, we need someone to “guard the guards”.

Questions

1.) Outline the other principles of the British Constitution

2.) How can the rule of law be related to the independence of the judiciary?

3.) Why are pressure groups increasingly turning to the courts to redress their grievances?