R (PressBoF) v Culture Secretary: the press’s grounds for judicial review

October 28 2013

Here’s the statement of facts and grounds – drafted by Richard Gordon QC and Sarah Love, both of Brick Court Chambers – in support of the Press Board of Finance’s judicial review claim in respect of the decision not to grant its own draft Royal Charter on press self-regulation.

The important piece of news contained in this document comes in paragraphs 108 and 109: PressBoF does want an injunction to prevent the government taking steps to have its Royal Charter approved by the Queen on Wednesday.

I’ll be making detailed comments on the legal to the legal arguments set out in these grounds over the next few days – but my initial reaction is underneath the viewer. Click on the bottom left of the viewer, if you want to see the document in fullscreen view.

PressBoFs argument is entirely about the process the government adopted before recommending rejection of its draft Charter.

It says it, PressBoF, was denied the right to be heard in relation to its own Charter because it was not told what criteria ministers would measure it against, was not told the essence of the “case against” its Charter, and was not given a chance to make representations; it claims ministers ran a flawed consultation exercise in which the public were invited to comment without knowledge of the criteria the government would apply – and in which PressBof itself was not consulted; and it complains (essentially for all the same reasons) that ministers breached PressBoF’s legitimate expectation that a fair procedure would be followed.

Typically in my experience, on first sight a judicial review claim backed by a well-funded applicant often appears strong. But once tested, they’re often weaker than they seem, and I think this claim too is weaker than a first look might suggest.

For once thing the three grounds are essentially repetitive: all PressBoF is really saying is that it didn’t know why ministers might think the press’s Charter unsatisfactory, and so was never given a fair chance to meet their concerns.

If you take a step back, though, that seems a tough argument to make given that Lord Justice Leveson’s recommendations were so widely reported, that the cross-party Charter had already been published, that the Chair of PressBoF Lord Black himself seems to have had at least three meetings in person with the Culture Secretary this summer, and that the government seems (see footnote 1 to the government’s letter setting out its reasons for rejection) to have received over a hundred sets of comments supporting the press Charter from editors and newspapers groups including the Telegraph, News International and the Daily Mail Group.

PressBoF will be a tough legal opponent for the government. Defending a judicial review against a well-funded and well lawyered-up commercial organisation is never easy. And one of the detailed points made in these grounds (see paragraph 81(b)), that the government said it would share with PressBoF its “criteria” for making a recommendation and then never did, is a slightly troubling one, and will I think be causing some worry among government lawyers.

But that’s the strongest point PressBoF has. PressBoF’s lawyers have undoubtedly done a good job of putting together these facts and grounds (Richard Gordon and Sarah Love appear to be instructed by DAC Beachcroft, by the way – Lord Hunt’s firm), but I don’t think their legal argument is strong, seen in the context of the government’s well-known aim of implementing Leveson. The government will I think successfully defend this challenge.

2013-10-28T22:31:59+00:00

UK Supreme Court judgment: R (Chester) v Justice Secretary, McGeoch v Lord President

October 16 2013

It’s no surprise that the Supreme Court has today unanimously dismissed appeals by two prisoners who wanted various remedies under the Human Rights Act and EU law for being denied the vote in Parliamentary, local, Scottish Parliament and European election. These cases were always weak.

Lord Mance gave the leading judgment and all the justices agreed broadly with his reasoning, though Lady Hale, Lord Clarke and Lord Sumption all gave concurring judgments including further or slightly different reasoning on some aspects of the case.

Lord Mance’s conclusions (summarised at para. 4 of the judgment) are first, that although the prison voting ban is incompatible with the right to free elections, a declaration of incompatibility under section 4 of the Human Rights Act has already been made (in Smith v Scott). The court isn’t bound to make a declaration, but simply has a discretion to do so; and there’s no point in making another one now.

As far as EU law is concerned, Lord Mance said, EU law says nothing about Parliamentary or Scottish Parliamentary elections, and gives no individual right to vote in local or European elections. While EU law does guarantee the right to take part in local and EU elections for EU citizens “under the same conditions as nationals”, there is no link to EU law in this case (involving two British prisoners wanting to vote in Britain) such as to engage the anti-discrimination rule. In any event, Lord Mance said, there would have been no appropriate remedy for the prisoners even if EU law had helped them at all.

What’s more interesting than the result of the case is the court’s rejection of the Attorney General Dominic Grieve’s argument (he appeared for the government himself at the hearing) that it should depart from the reasoning of the Grand Chamber of the European Court of Human Rights on prisoners’ votes in Hirst and Scoppola, and in effect say that the European Court is wrong. That was a bold submission, though I think a perfectly reasonable one. But it didn’t succeed. While the Supreme Court said in Horncastle that

There will … be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to the domestic court to decline to follow the Strasbourg decision …

at para. 25 of the judgment Lord Mance said there were limits to the scope to depart from Strasbourg:

… dialogue with Strasbourg by national courts, including the Supreme Court, has proved valuable in recent years. The process enables national courts to express their concerns and, in an appropriate case such as R v Horncastle, to refuse to follow Strasbourg case-law in the confidence that the reasoned expression of a diverging national viewpoint will lead to a serious review of the position in Strasbourg. But there are limits to this process, particularly where the matter has been already to a Grand Chamber once or, even more so, as in this case, twice. It would have then to involve some truly fundamental principle of our law or some most egregious oversight or misunderstanding before it could be appropriate for this Court to contemplate an outright refusal to follow Strasbourg authority at the Grand Chamber level.

in this case, Lord Mance said (para. 34)

Nothing in Scoppola … suggests that the Grand Chamber would revise its view in Hirst (No 2) to the point where it would accept the United Kingdom’s present general ban. There is on this point no prospect of any further meaningful dialogue between United Kingdom Courts and Strasbourg.

All the justices agreed with this approach. Even Lord Sumption, whose quite lengthy concurring judgment contained some criticism of the European Court of Human Rights (para. 135)

the Strasbourg Court has arrived at a very curious position. It has held that it is open to a Convention state to fix a minimum threshold of gravity which warrants the disenfranchisement of a convicted person. It has held that the threshold beyond which he will be disenfranchised may be fixed by law by reference to the nature of the sentence. It has held that disenfranchisement may be automatic, once a sentence above that threshold has been imposed. But it has also held that even with the wide margin of appreciation allowed to Convention states in this area, it is not permissible for the threshold for disenfranchisement to correspond with the threshold for imprisonment.

did not think the court could depart from Strasbourg in these circumstances (para 121):

In the ordinary use of language, to “take into account” a decision of the European Court of Human Rights means no more than to consider it, which is consistent with rejecting it as wrong. However, this is not an approach that a United Kingdom court can adopt, save in altogether exceptional cases.

Clearly he disagrees with the European court’s case law, but (para. 137)

the contrary view has now been upheld twice by the Grand Chamber of the European Court of Human Rights, and is firmly established in the court’s case-law. It cannot be said that the Grand Chamber overlooked or misunderstood any relevant principle of English law … There is no realistic prospect that further dialogue with Strasbourg will produce a change of heart. In those circumstances, we would be justified in departing from the case-law of the Strasbourg Court only if the disenfranchisement of convicted prisoners could be categorised as a fundamental feature of the law of the United Kingdom. I would regard that as an extreme suggestion, and in agreement with Lord Mance I would reject it.

In paragraph 138 he identified the root of the prisoners’ votes problem as the European court’s disrespect for the margin of appreciation in Hirst (something I think he’s right about) but even so, he saw no scope for the Supreme Court to go behind its rulings:

A wider and perhaps more realistic assessment of the margin of appreciation would have avoided the current controversy. But it would be neither wise nor legally defensible for an English court to say that article 3 of the First Protocol has a meaning different from that which represents the settled view of the principal court charged with its interpretation

The Attorney General must be disappointed, though probably not surprised, that he was unable to move the justices further than this. In terms of conservative politics, this judgment strengthens the position of those who say legislation is needed in order to “make our Supreme Court supreme”. Dominic Grieve has not been able to show he can achieve that by legal argument.

Lord Clarke gave a concurring judgment expressing much more sympathy with the European court’s thinking. But more interesting was Lady Hale’s judgment, and its trenchant attack on the sort of abstract rulings these appellants, both of whom are serving life for murder, were asking for. At para. 99 she said

I have no sympathy at all for either of these appellants. I cannot envisage any law which the United Kingdom Parliament might eventually pass on this subject which would grant either of them the right to vote … it seems clear from the decision in Scoppola v Italy (No 3) that Strasbourg would now uphold a scheme which deprived murderers sentenced to life imprisonment of the right to vote, certainly while they remained in prison, and probably even after they were released on licence, as long as there was then a power of review.

She agreed with the dissenting minority in the European court in Hirst, who had said that ruling was itself abstract, since Hirst had been in prison for manslaughter. Rather than auditing UK law in the abstract it ought, she said, to have indicated

in precisely what way Mr Hirst’s rights had been violated by the law in question. It seems to me that the courts of this country should adopt that sensible practice when considering the application of the various remedies provided by the Human Rights Act.

This shows that she agrees with Lord Sumption’s clear view, and that of the Attorney General, that the European court in Hirst was always wrong.

For good measure she went on (para. 102) to say this about UK courts’ approach to declarations of incompatibility under section 4 of the Human Rights Act. The wording of section 4, she said,

does appear to leave open the possibility of a declaration in abstracto, irrespective of whether the provision in question is incompatible with the rights of the individual litigant. There may be occasions when that would be appropriate. But in my view the court should be extremely slow to make a declaration of incompatibility at the instance of an individual litigant with whose own rights the provision in question is not incompatible. Any other approach is to invite a multitude of unmeritorious claims.

Unmeritorious claims like this one, in other words. What she said, though, could equally well be applied to Hirst or to the recent “whole life order” case of Vinter, Bamber & Moore v UK.

This cases does nothing to relieve the UK’s prison votes dilemma. It shows there is frustration with the European Court of Human Rights on the Supreme Court bench as well as in Parliament. But if anything, it strengthens the hand of those who want legislative change to give the Supreme Court more power to go its own way – or even to force it to do so in some cases.

2013-10-17T09:50:39+00:00Tags: , , |

Press regulation Royal Charter, final draft: my detailed comments on the new provisions

October 15 2013

I’ve spent some time looking at the final draft of the Royal Charter – so I want to share my thoughts with you. If you click the bottom left of the viewer, you’ll see in fullscreen view, highlighted, the key changes made since the original draft last March and be able to click again to see my comments on them.


I’m normally slow to criticise the drafting of legal texts – usually the drafter knows more than us, or is working under constraints we don’t understand. That may well be the case here: any text agreed between two or more parties (and here, three political parties and the Scottish government are involved) rather than drafted by a single mind is likely to contain defects. I think this does.

The new provisions relating to Scotland, for example, raise as many questions as they answer. And some of the choices made in catering expressly for Scotland will make it more difficult than it need be for the Charter to fit the Northern Irish context.

The new provision about the standards code and the code committee also raise interesting issues: specifically, how a regulator will ensure that serving editors’ views on the content of the code are not “decisive”.

2013-10-15T20:07:47+00:00Tags: , , , , , |

The Fifth Estate

October 14 2013

I realise this is a legal blog. But I do write reviews occasionally, like this one of a film, and this one of a play, both on specifically legal themes, admittedly. I hope there’ll be more like them before long. While The Fifth Estate has no legal content (a Guardian lawyer is portrayed briefly on screen by Camilla Rutherford, but that’s about it) I’ve written so much about Julian Assange that I reckon to review it is just about intra vires.

Based on books by Daniel Domscheit-Berg and David Leigh and Luke Harding, it dramatises the story of Wikileaks from when Domscheit-Berg met Julian Assange in 2007 until he left the organisation at the height of its fame in late 2010 when it collaborated with the Guardian and other leading international media to publish the Afghan and Iraq war logs and the US embassy cables. I enjoyed the film a lot. The Fifth Estate may have got lukewarm reviews in the mainstream media, but it doesn’t from me. It’s well worth your money if you’ve not seen it yet.

Benedict Cumberbatch’s performance has been praised, and it impressed me too. Partly, it’s the nearly spot-on voice that does it. But there’s a darkness to this portrayal that takes it beyond a mere impression. It’s beyond cliché to call Assange an enigma, but Cumberbatch’s Assange is cold, manipulative and prepared to deceive for what he sees as the greater good. He’s also distant. In a crucial scene near the end he remarks that you can spend a lot of time with someone, yet never really know them. I feel that way about Assange, having heard many interviews with him, read his unauthorised autobiography and now seen two films about him (the other was Alex Gibney’s documentary We Steal Secrets). Perhaps he’s unknowable.

In some ways the film is like a thriller – it has a bit of the Eurowhistlestop feel of a Bourne movie – and maintains tension even though we know where this story ends (or at least substantially pauses). Daniel Brühl is every bit as strong as Cumberbatch in the role of Domscheit-Berg and while the Guardian and Washington scenes are less solid, the heart of the film, the relationship between two men of diverging ideals, is compelling.

Sound and especially vision are the best things about The Fifth Estate, though. Carter Burwell’s score is self-effacing but effective; oddly it feels as though there’s little music in this film, though actually you hear a lot. Even more impressive is the look of the film. The computer graphic effects are well done and the “virtual fantasy” scenes are an inspired touch (Wikileaks’s cyberspace is visualised as a vast office floor). Quite apart from these successful creative techniques, The Fifth Estate uses colour well and takes pleasure in visible place like the scenery of Iceland and the anarchic energy of Berlin’s Tacheles building. Mark Kermode says

the visual fizz is hiding an essential emptiness, a hole where the film’s meaty core should be

a problem which he sees as linked to indecisiveness and the attempt to be fair. Which brings me to the last and in a sense most important point.

Julian Assange calls this film “distorted” and “debased truth” and says Cumberbatch’s performance is bound to be “debauched”. But The Fifth Estate, while undoubtedly portraying Assange as egotistical, manipulative, disloyal, dictatorial and reckless with others’ lives – a considerable moral indictment, for sure – does also make a point of fairness to him in more than one way.

No mention is made in the narrative of his being subject to criminal proceedings in Sweden (a caption at the end says, problematically I’d suggest, that he’s wanted for “sexual misconduct”; perhaps the filmmakers thought it too risky, given all the jurisdictions in which this film will be seen, to call at least one of the allegations against Assange by its English name: rape). His mission and that of Wikileaks is not presented as either discredited or wrong. We’re made to feel the courage of Assange and his closest collaborators, to understand something of his personal magnetism and drive and the importance of his leadership, and made to recognise the achievements and the potential of his radical kind of journalism.

More importantly – and this is almost destabilising for the film – Assange’s character is given the last word, speaking directly to the audience and encouraging them to see this story as simply a version, and to find truth for themselves. He may be right; but if so, then the version presented in this film is as fair as any. Assange is right that the portrayal of him as a person is negative. But only by suppressing criticisms that have been made by those who’ve worked with him, and only by glossing over the moral issues raised by the unredacted publication of sensitive documents, could it have been much fairer.

Go to see The Fifth Estate if you have a chance. As a record of events it can’t rival the excellent We Steal Secrets (which also deals with the story of Private Manning, not covered in any depth here, and with the Swedish investigation). But as cinema, it’s a very good piece of work.

2013-10-14T19:07:50+00:00

Crowdsourcing a new UK Constitution

October 9 2013

Crowdsourcing2

LSE is beginning a project in collaboration with Democratic Audit  to draft a new constitution for the UK by “crowdsourcing”, and last night’s launch event was fascinating and fun, as you’d expect with Professor Conor Gearty leading the discussion. David Blunkett MP called Gearty “LSE’s Bob Monkhouse”, an affectionately rude way of acknowledging Gearty’s wit and way with an audience. He’s a great communicator on law so if you can hear him speak, you should.

He began by asking what values were missing from the British constitution now – collective rights and something called universalism were suggestions from the audience – and suggested that long-termism might be the biggest gap, with our current political system focused on the short term. The evening was a mix of discussion of that sort (what John Strafford, who was in the audience, called “academic froth”), short contributions from the panel and interactive voting on issues like Does everyone deserve to be treated equally? Initially, 70% of the audience agreed they did, but after a short discussion – Carol Harlow saying it depended whether we meant equal treatment in terms of money, or procedures, or in court, and David Blunkett suggesting people should not gain access on equal terms with others to entitlements they hadn’t earned equally – that share went down to only 46%. Writing a constitution would be “damned hard”, David Blunkett commented.

Blunkett was the first panelist to present an argument, in his case that the right to state protection was fundamental. This is an interesting idea, familiar in one form but I think perfectly reasonably cast in terms of rights. The state, on this approach, cannot simply focus on the rights of, say, Abu Qatada, but must balance them against the rights of those who need protection from him. Blunkett made clear he’s well aware of his red-toothed reputation as Home Secretary, and emphasised repeatedly the need for constitutional protection to come through the democratic process rather then by courts, but he had some kind words for lawyers:

People like me have got so aggravated with lawyers, we’ve forgotten they are actually essential.

Two thirds of the audience agreed that the state should guarantee a minimum standard of living, and that vote remained solid in spite of powerful points made by Carol Harlow, who said she thought such social guarantees should be a matter of law and policy, and that the state

should just be getting on with that, not worrying about whether it’s in the constitution

and by Dr Lea Ypi, who said questions of distributive justice like this cannot be considered apart from the property system in a society.

Carol Harlow made the case against a written constitution in principle. Constitutions tend to be deliberately antidemocratic, she said: they’re

for the people but not by the people

her prime example being the ill-fated “European Constitution”. This is not a “constitutional moment” for us, she said, in which we needed to mark a fresh start. Our current institutions are stable and well embedded, and their flexibility is an advantage right now since we don’t know where the next few years will take us, with one referendum certain to take place in Scotland and another, about the EU, possible in a few years. The wrong things tend to get into constitutions, she argued – like the right to bear arms – and the right things get left out, so that for instance the courts in American ended up being a barrier to abolishing slavery and to women’s rights. Finally, she said written constitutions shift power unacceptably towards judges. while she admires the German Constitutional Court, she would not want the UK to have a constitutional court of that sort.

Richard Gordon QC argued for a written constitution, saying he’d written his draft, in his book Repairing British Politics, in “white heat” following the 2009 MPs’ expenses crisis, which had got him interested in politics for really the first time. He compared Parliamentary sovereignty, the keystone of the unwritten constitution we have, to papal infallibility, calling it

a giant confidence trick.

He said he agreed with much of what Carol Harlow had said except that whether the right or wrong things get into a constitution simply depends on how you draft it. Parliamentary sovereignty he said had

no respectable historical basis, and no respectable democratic basis

and it is, he said

a myth and an evil.

We have to get rid of it, he said, and the only way to do so is by means of a written constitution.

Lea Ypi said one of the critical questions is how a constitution that’s democratic at its origin can remain democratic by building in opportunities for political agency and for deliberative as well as representative governance. The points she made about process implied she felt the process of discussing a possible constitution was as important as any outcome.

Politics is always about elites and power

she said. It’s up to the people to use the processes open to them to effect change.

I was encouraged that others in the audience apart from me were resistant to a written constitution as a panacea for Britain: Tony Holland reminded us you can get rid of Parliament but not so easily of a constitutional court. But Richard Gordon fired back at naysayers, asking:

Who on earth voted for Parliamentary sovereignty?

Surprisingly enough the vote on a written constitution was a dead heat: 41% for, 41% against.

I’m firmly against a written constitution for Britain, but I think this is a brilliant project that’ll be interesting not just in terms of its product but because of what happens along the way. I encourage you to get involved.

2013-10-09T17:20:36+00:00

R (Miranda) v Home Secretary: witness statement of Detective Supt. Caroline Goode

October 2 2013

A few weeks ago I published the witness statement of Oliver Robbins served on behalf of the Home Secretary in the Miranda case. That statement referred (at para. 32) to a further statement to be served by the police, also in opposition to David Miranda’s application for an injunction.

Now I can also publish that police statement, made on 27 August by Detective Superintendent Caroline Goode, Senior Investigating Officer in SO15, the Met’s Counter-Terrorism Command. Thanks to Richard Greenhill (who obtained the statement by a Freedom of Information Request) for letting me know about it.

If you’ve been following this case closely you may remember that after an initial urgent hearing the High Court ordered restrictions on the inspection of the seized material (for national security, and to find out if David Miranda has been concerned in terrorism) for a week. Then at the proper hearing of David Miranda’s interim injunction application on August 30, those restrictions were widened by agreement of both sides, to allow inspection of the material for the purposes of criminal investigation. Caroline Goode’s statement was clearly key evidence on the basis of which it seems David Miranda and his lawyers felt they could not resist that wider inspection.

2013-10-02T16:07:28+00:00Tags: , , , |

Is Ed’s energy freeze lawful?

September 25 2013

Lee Haywood | Creative Commons

The centrepiece of Ed Miliband’s speech to Labour’s conference yesterday was this:

If we win the election 2015 the next Labour government will freeze gas and electricity prices until the start of 2017. Your bills will not rise. It will benefit millions of families and millions of businesses.

Since then there’s been some question whether this plan complies with EU law – with Gillian Sproul of Mayer Brown expressing some doubt, Open Europe concluding it’s lawful, and Ed Miliband himself assuring listeners to the Today programme this morning that his legal advice is “absolutely” that he can do it (from 2 minutes 18 seconds in).

I think it should be possible to design this policy in such a way as to be legally defensible. But there is legal risk here, and the details will need care.

Instinctively people think the policy must raises issues of EU competition law – but it’s not quite that in fact. EU competition law strictly so called – that is, the law on anti-competitive agreements under article 101 of the Treaty on the Functioning of the European Union (TFEU) and the law on abuse of a dominant position under article 102 TFEU – only apply to the behaviour of firms themselves. EU competition law isn’t about what governments do.

EU law is relevant to Ed Miliband’s freeze, though, in two ways: first, it has to comply with EU internal market rules relating to the energy market; and second, any public subsidy it involves to industry must comply with EU state aid rules.

In principle, imposing fixed or maximum prices can be a restriction on the freedom to provide services under article 56 TFEU (see the Tasca case from 1976, which makes the principle clear in relation to free movement of goods), particularly if they force importers to operate at a loss.

Usually the next question is whether such a restriction can be justified under article 52 on grounds of public policy, or under the principles laid down in ECJ case law – see Alpine Investments. But here, we’re dealing with markets regulated in detail by the EU under Directives – specifically the Electricity Directive, 2009/72 and the Gas Directive, 2009/73, adopted as part of the EU’s “third energy package”. So it’s to the detailed provisions of those Directives that we must turn in order to answer the question whether price regulation in energy markets is permitted. It seems to be.

It’s true that the entire purpose of the Directives is to liberalise the gas and electricity markets, allow genuine competition and so achieve the best deal for consumers in the long run. But they preserve important powers of state intervention. Article 3.2 of the Electricity Directive says

Having full regard to the relevant provisions of the Treaty, in particular Article 86 thereof, Member States may impose on undertakings operating in the electricity sector, in the general eco­nomic interest, public service obligations which may relate to security, including security of supply, regularity, quality and price of supplies and environmental protection, including energy effi­ciency, energy from renewable sources and climate protection. Such obligations shall be clearly defined, transparent, non- discriminatory, verifiable and shall guarantee equality of access for electricity undertakings of the Community to national consum­ers.

Article 3.2 of the Gas Directive is in identical terms (except of course that it refers to the gas sector, and natural gas undertakings). Note that it says

Member States may impose on undertakings … public service obligations which may relate to … price of supplies …

In the Federutility case in 2010, Italy successfully used the predecessor of article 3.2 to ward off a challenge by its gas industry to what was effectively the imposition of maximum “reference” prices. The European Court accepted that “the very purpose and the general scheme” of an earlier Gas Directive – article 3.2 of which was almost identical to the current provision – was

progressively to achieve a total liberalisation of the market for national gas in the context of which, in particular, all suppliers may freely deliver their products to all consumers.

But, the Court went on to say (paras. 20-21)

[the Directive] is also designed to ensure that, in the context of that liberalisation, ‘high standards’ of public service are maintained and the final consumer is protected.

In order to meet those latter objectives, Article 3(1) of [the Directive] states that it applies ‘without prejudice’ to Article 3(2), which expressly permits Member States to impose ‘public service obligations’ on undertakings operating in the gas sector, which may in particular concern the ‘price of supply’.

The ECJ did, though, make clear (para. 35), that as well as acting in a clearly defined, transparent and non-discriminatory way, the state can only intervene proportionately, where it’s necessary to do so:

First, such an intervention must be limited in duration to what is strictly necessary in order to achieve its objective, in order, in particular, not to render permanent a measure which, by its very nature, constitutes an obstacle to the realisation of an operational internal market in gas.

Whether it was sufficiently limited in time would depend

whether and to what extent the relevant national law requires the administration to make a periodic re-examination, at close intervals, of the need for it to intervene in the gas sector and the manner of its doing so, having regard to the development of that sector.

And while prices can in principle be regulated for business consumers as well as households (paras. 42 and 43)

it would be necessary to take account, in assessing the proportionality of the national measure in question, of the fact that the situation of undertakings is different from that of domestic consumers, the objectives pursued and the interests present being not necessarily the same and also of objective differences between the undertakings themselves, according to their size.

In those circumstances … the requirement of proportionality referred to above would not, in principle, be complied with if the definition of ‘reference prices’ for the supply of natural gas, such as those at issue in the main proceedings, were to benefit individuals and undertakings in an identical manner, in their capacity as final consumers of gas.

It’s these Federutility conditions that pose a challenge for Ed Miliband’s policy in terms of internal market law. Article 3.2 and Federutility don’t leave much scope for the Commission or industry to challenge price regulation, but in its 2012 Communication on energy the Commission said (para. 3.2.1, page 11) that it

will continue to promote market-based price formation in retail markets, including through infringement cases against those Member States maintaining price regulation that is not meeting the conditions laid down by EU law

and you can be sure that the energy industry will jealously protect its rights. Miliband’s policy is vulnerable then, in respect of how its duration is justified, and in the extent to which it applies to business.

Of course we know already that the policy will be time-limited: that helps. But how can Miliband know now that, in about 20 months time, intervention will be needed for exactly another 20 months? If he is in government in May 2015, he’ll need to ensure he can justify the need to intervene then, and that he builds in some form of review, perhaps, to make sure intervention is defensible for at least the 20 months he plans.

And while Miliband said the police would apply to “millions of businesses”, he probably means small businesses, rather than all of them. The Commission is clearly taking paragraph 43 of the Federutility judgment seriously because it’s taking Poland to the European Court for introducing price regulation for all business customers regardless of size.

Finally, state aid. Ed Miliband said on the radio this morning that if energy companies claimed the freeze was unsustainable (perhaps because of some market shock, Justin Webb suggested to him in his Today interview, from 3 minutes 54 seconds) then they could “make their case” to him. In order to ensure continued energy supplies the government could subsidise energy firms to compensate for losses due to the freeze, and this compensation (since it would be provided to offset the cost of fulfilling a “public service obligation”) could escape the prohibition on state aid to industry under article 107 TFEU – but only if it fulfils the “Altmark criteria” laid down ten years ago in the Altmark Trans case. These include, in summary (see paragraph 95 of the judgment), that

  • firms to be compensated have clearly defined public service obligations (which is already required by article 3.2 of the Electricity and Gas Directives of course),
  • the basis of calculating compensation has been established in advance, objectively and transparently, and
  • compensation does not exceed the costs incurred by firms in fulfilling their obligations, taking into account a reasonable profit.

This 2012 Commission Communication on state aid and “public service compensation” explains in detail the Commission’s approach to the Altmark criteria today. It’s worth noting that Irish aid to the energy sector has been cleared in the past.

If I were a government lawyer advising on this, I’d also be concerned, if ministers decided in effect to underwrite the price freeze through subsidy, in case the effect of the price freeze on business customers ended up indirectly favouring some industry sectors – perhaps those sectors where energy is a big component of costs – or giving big British exporters a cost advantage their over EU competitors. That would be another way in which the policy could infringe state aid rules, as France and Spain have found according to this Energy Community Secretariat report (see page 6). So for this reason too (as well as compliance with Federutility) Ed Miliband would be wise to limit the freeze to households and small business customers only.

Ed Miliband will need to ensure, then, that he still has a good case for price intervention in 2015 – and it’ll be interesting to see what happens to energy prices between now and then if he continues to lead in the polls. But assuming he does, and that he limits the freeze to household and small business customers, then I think it could be successfully defended in terms of EU law – even if Miliband is forced to step in to underwrite the freeze using government funds.

The policy would have a cost in terms of wider European policy, though. As the Commission’s 2012 Communication I mentioned above made clear (page 10) the UK is, as things stand, one of the minority of EU countries like Germany, the Netherlands and Sweden in which energy prices are free of state intervention. Ed Miliband’s policy would change that. The UK has traditionally promoted its own vision of Europe based on open and free markets, rejecting the short-term, protectionist and interventionist regulatory approach we like to associate with France. Ed Miliband’s energy policy would do at least some damage to Britain’s credibility on that score; and I wonder whether we’re seeing the second of Britain’s big political parties begin to edge away from the positive, economically liberalising European policy they pursued under both Thatcher and Blair.

2013-09-26T02:46:42+00:00Tags: , , , , |

Even in a niqab, the defendant must be heard

September 19 2013

I’m no friend of the niqab. It’s the symbol of an oppressive ideology, and I look forward to its disappearance from the streets of Britain (which I think likely in my lifetime) and everywhere. I doubt a total ban’s a good idea here, but I support the right of employers and schools to prevent their employees from working fully veiled, I think it’s important that those involved in serving the public, like police officers and judges, do not wear the niqab, and I think it’s vital to resist, firmly, campaigns by religious extremists to normalise it. I’m against the niqab.

But His Honour Judge Peter Murphy’s ruling earlier this week, that a criminal defendant at Blackfriars Crown Court, “D”, may not give evidence wearing a niqab, is profoundly worrying. Unlike other commentators, like Adam Wagner and Joshua Rozenberg (who also disagrees with the ruling, but for different reasons) I don’t see it as well argued or persuasive. On the contrary I think it’s badly reasoned. And the conclusion the judge comes to (paragraph 86 of the judgment) that

The defendant may not give evidence wearing the niqaab

is mistaken in practical terms, wrong in liberal principle and wrong in law. The judge, by raising the prospect that an accused may be stopped from giving evidence in her defence, has conspicuously failed to respect the right to a fair hearing – an important concept whose full import, both theoretical and literal, this case might have been designed to illustrate.

In fairness to the judge, he’s done an impressive public service by facing what he calls at paragraph 12 of his ruling this “elephant in courtroom”, and by publishing his legal analysis.  But I’ve also said the ruling is badly reasoned, so I’d better start by giving one or two examples of what I mean. At paragraph 14 the judge says

I accept for the purposes of this judgment that D sincerely takes the view that, as a Muslim woman, she either is not permitted, or chooses not to uncover her face … I have been given no reason to doubt the sincerity of her belief.

But surely it makes a big difference whether, on the one hand, a defendant believes she is obliged to be veiled in public, or, on the other, she simply chooses to be. HHJ Murphy analyses the situation before him in terms of her right to manifest her religious belief, but any interference with this right is surely more severe (and harder to justify, legally) if it requires her to do something she believes forbidden, than if it simply requires her do something she herself agrees is permitted. The judge was wrong not to make this important distinction.

At paragraph 19, the judge seems to think it’s relevant that the niqab is not universally agreed to be required by Islam – although earlier, as I’ve said, he had thought it irrelevant whether the defendant herself believes it to be required. I find that odd. And at paragraph 20 he considers the position in Islamic law – which surely is irrelevant to the law of England and Wales.

At paragraph 30 the judge tells us that

It is essential to the proper working of an adversarial trial that all involved with the trial – judge, jury, witnesses, and defendant – be able to see and identify each other at all times during the proceedings

a principle which is is undermined by the fact that a witness may be “screened” from the view of the defendant in some cases. But at paragraph 59 the judge goes on to say that

In my view, it is unfair to ask a witness to give evidence against a defendant whom he cannot see. It is unfair to ask a juror to pass judgment on a person whom she cannot see. It is unfair to expect that juror to try to evaluate the evidence given by a person whom she cannot see, deprived of an essential tool for doing so: namely, being able to observe the demeanour of the witness; her reaction to being questioned; her reaction to other evidence as it is given … I would add that, although of lesser significance in the case of a judge, it is also unfair to require a judge to sentence a person he cannot see.

Yet he goes on to rule that seeing the defendant’s face at all times isn’t really essential after all, since he will permit her to wear the niqab while other witnesses give evidence. Neither they nor the jury, not the judge himself may see the expression on her face as they do so, in spite of this being “unfair”. At paragraph 68, without any further reasoning, he simply concludes that

I am not persuaded that this is of sufficient importance …

He goes on, too, to rule that he will sentence her while not seeing her face. At paragraph 67, finally, the judge gives his own views about the niqab, which seem to me irrelevant.

I hope this litany explains my view that the judge’s reasoning is inadequate, mistaken and contradictory. I hesitate to go on. But if you’re interested, there’s quite a bit more: you can read all my comments on the judgment here.

The fundamental problem, though, is that the judge approaches the question of law before him in terms only of the defendant’s right to manifest her religious beliefs, under the article 9 Convention right. At paragraph 11, for instance, introducing the question, he mentions article 9 – but not the defendant’s right to a fair trial, under article 6. Never, at any point in his ruling, does the judge properly and adequately address himself to that right.

I’ve already quoted some of the judge’s remarks about fairness to witnesses, to the jury and the the judge. Repeatedly the judge talks about the need to be fair “to all parties” but at no point does he squarely consider the fact that the defendant’s position is different from other court users with an interest in the trial: she, uniquely, has the legal right to a fair hearing in her case. Only at paragraph 69 does the judgment specifically mention her right to a fair trial and to give evidence:

The right to give evidence is a fundamental one, and it must be protected. It is an essential component of the defendant’s right to a fair trial, both at Common Law and under art. 6 of the Convention.

but having done so the judge immediately dismisses a defendant’s wish to be heard in a niqab as a potential “abuse”:

But Member States are free to give effect to that right within the framework of their respective legal systems. Article 6 does not prevent the Court from adopting a fair and proportionate procedural rule to prevent that right from being abused.

This is the furthest the ruling goes in attempting to square the judge’s directions with the right to a fair trial. Ultimately the judge’s legal analysis is as summarised at paragraph 72:

… the Court must balance the right of manifestation of religion against the interests of justice in securing a fair trial for all the participants and the strong public interest in the proper administration of criminal justice.

It’s clear from this that the judge has placed the public interest in fairness “to all parties” on one side of the scales, and concludes that it outweighs D’s religious rights on the other side. He has forgotten that the paramount legal right to fairness in this case, over and above the fairness due to anyone else involved, is the defendant’s – and one that tips the scales of justice firmly in her favour. It’s her right to be heard.

I said the ruling is a mistake in practice, because I wonder to what extent the judge has really considered the practical consequences of the approach he recommends. He has not ruled (nor could he) that the defendant must give evidence and show her face: she’ll decide whether she wishes to give evidence or not, and may decide to do so at the very last minute. So the question is, what will actually happen during the trial, when that time comes? I have no reason to think D will not comply with the judge’s direction. But what if, perhaps in another case, a defendant could square this with her conscience, and felt she could not obey?

One possibility is that she’d decide not to give evidence at all, rather than allow her face to be seen. That, though, would be an awful result, since it would effectively mean she was deprived of the right to bring evidence in her own defence, something we’ve seen as a fundamental right in English law since 1898 (when, as law students are amazed to discover, this was permitted for the first time). No criminal defendant should be placed in the position of feeling pressure to abandon this right because of her conscience.

Alternatively, she could decide to give evidence, but stubbornly refuse to remove her niqab – something the judge seems to anticipate in his ruling in D’s case, at paragraph 83 – bringing about a courtoom stand-off. What then? The judge says a defendant should be given “time to reflect” (how much time?) but that ultimately

If she refuses, the judge should not allow her to give evidence, and must give the jury a clear direction in the terms suggested in the Bench Book, with appropriate modifications, about the defendant’s failure to give evidence.

The “Bench Book”, at page 283, discusses directions to the jury about what inferences they may draw against the defendant under section 35(3) of the Criminal Justice and Public Order Act 1994, from her deciding not to give evidence. But it would be outrageous, surely, if any adverse inference were drawn in the circumstances of such a case. The judge would surely have to direct the jury that no adverse inference is fairly available because her silence was at least in part because of her religious principles.

By the way, that’s another reason why HHJ Murphy’s ruling is wrong: it allows a possible route for some female defendants, simply by putting on the veil, to evade the normal provisions permitting inferences to be drawn by jurors from their silence at trial.

But anyway, what does it mean to say a defendant should not be allowed to give evidence? Does it mean that the judge should not allow her to take the oath until she removes her niqab? Should he order her physical removal from the witness box if need be? Should he deal with her refusal to unveil as a contempt “in the face of the court”? Should he adjourn the case to deal with the contempt of court, and if so, how should be deal with it? Should he, ultimately, decide that the case should be concluded, and a verdict entered, with the defendant excluded from giving evidence?

In my view the final option – excluding the defendant from giving evidence in her own defence – would not only be radical, but wrong in law. It’s true that the Crown Court controls its own procedure and has power to punish contempt of court. But it does not have a general common law discretion to exclude relevant evidence from the defendant.

In Lobban v The Queen in 1995 the Privy Council approved a statement in a legal textbook, Keane’s Modern Law of Evidence (then in its 3rd edition) that

the discretion may only be exercised in relation to evidence tendered by the prosecution.

A similar statement is retained at page 46 of the current edition of what’s now Keane & McKeown. Indeed at page 46 of Murphy on Evidence, 13th edition, on which Peter Murphy (the very same Judge Murphy who made the ruling I’m discussing, as Joshua Rozenberg has pointed out) now works in a consultative capacity, the discretion to exclude evidence is discussed only in relation to examples where prosecution evidence is excluded. It’s clear that the common law discretion to exclude evidence only applies to evidence on which the prosecution relies.

So what would be the legal basis for excluding the defendant’s evidence? Statute provides no answer: section 78 of the Police and Criminal Evidence Act 1984 applies, similarly, only to evidence against the defendant.

I suppose someone might argue that, while not permitting the defendant to give oral evidence, the judge could allow her witness statement to be admitted into evidence under section 114(1)(c) or (d) of the Criminal Justice Act 2003, either because the prosecution agrees, or in in interests of justice. But that’s no answer to the fairness problem identified by the judge. If it’s not “fair to all parties” to allow the defendant’s evidence to be heard, and for her to be cross-examined, because her face will not be seen, it must be even less fair for her case to be put forward in written evidence, on which she can’t be cross-examined.

It’s rare for the European Court of Human Rights to interfere with a judge’s discretion, in a criminal trial, to include or exclude evidence.  National courts are given a wide discretion in deciding what witnesses should be called. But in the very case that’s often cited as supporting that point (for instance in Clayton and Tomlinson 2nd edition, para. 11.501), Vidal v Belgium, the Court did in fact hold that the right to a fair trial was breached where no reason was given for excluding defence witnesses from consideration. So the ECtHR can intervene where the exclusion of defence evidence strikes at the very essence of fair trial rights. And a case like CG v UK (in which there was no breach of article 6, although Judge Loucaides dissented) shows that the Court will intervene if the judge interferes with the defence case so as to render the trial unfair, viewed as a whole.

The domestic courts can and in my view should be less cautious about intervening under the Human Rights Act 1998 if a judge’s decision to exclude evidence seriously affects the defence case.

Article 6 of the European Convention on Human Rights sets out the right to a fair trial. Article 6(1) says

In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

Note that the legal right is specifically to a fair hearing. And that the French text, similarly, says that

Toute personne a droit à ce que sa cause soit entendue équitablement …

Throughout his ruling, HHJ Murphy in my view exaggerates the difficulties of assessing the credibility of witnesses whose faces we can’t see. He says at paragraph 34 that a witness in a niqab

is effectively immunised against cross-examination

but surely this goes too far. If the judge were right, no minister would have the slightest concern about being interviewed on the radio by John Humphreys or Jim Naughtie. A defendant in a niqab can be seen – she communicates not just by facial expressions but by gestures and by her attitude. But more importantly the jury can hear her, and decide whether her account, together with her answers to questions, raises a reasonable doubt in their minds, or not. They’ll make of her what they will, but she should be allowed to take her chance.

A criminal defendant isn’t in the same position as a judge, a barrister, a police officer or a prosecution witness. She doesn’t choose to be charged, or what court or judge she’ll appear before, and she doesn’t choose whether or not to turn up. She’s at risk of losing her freedom, and is the only person in court who faces that risk. She’s a right to be tried fairly, and to speak in her own defence: this is a point on which traditional common law wisdom and modern human rights thinking coincide. So even if we’re against the niqab (and I am), this is a special situation to which special rules must apply. And they do.

Even in a niqab, the defendant must be heard.

2013-09-19T18:47:58+00:00Tags: , , , |

The niqab ruling: my detailed comments

September 19 2013

Here’s Monday’s ruling by His Honour Judge Peter Murphy, that a female Muslim defendant at Blackfriars Crown Court may not give evidence wearing a niqab, or face veil. If you click on the highlighted phrases in the document, either in the viewer below or in fullscreen view (click on the bottom left of the viewer) you’ll find my detailed comments on his reasoning.

2013-09-19T18:45:39+00:00Tags: , , , |

R (Miranda) v Home Secretary: witness statement of Oliver Robbins

August 30 2013

This is the statement filed on behalf of the Home Secretary in these judicial review proceedings by the Cabinet Office’s deputy national security adviser, Oliver Robbins.

2013-08-30T14:18:33+00:00
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