Parliamentary Committee considers remit of the proposed Constitution, Democracy and Rights Commission

The House of Commons’ Public Administration and Constitutional Affairs Committee (the “PACAC”) is conducting a Call for Evidence as part of its inquiry (the “Inquiry”) in relation to the commitment in the 2019 Conservative Party manifesto (at page 48) that the Government would establish a Constitution, Democracy and Rights Commission (the “Commission”).

Background

According to the manifesto commitment, the Commission’s purpose would be to make proposals “to restore trust in our institutions and in how our democracy operates”. The manifesto stated that the role of the Commission would be to examine: the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people. It appears the intention was that the Commission would also “update” the Human Rights Act and administrative law, as well as ensure that judicial review is “available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays”.

The Government subsequently announced that it had appointed a panel of experts to examine whether there is a need to reform the judicial review process and there was a Call for Evidence by the Government’s Independent Review of Administrative Law (the “IRAL”; see Public Law Notes updates of 3 August 2020 and 27 October 2020). As regards the remaining commitments, the Government has made no announcements about the form or timing of the Commission except in the Queen’s Speech.

The Call for Evidence seeks submissions on the form which the Commission should take, its main purpose and output, and any particular issues which should be a priority for the Government. This Call for Evidence gives members of the public the opportunity to have their say and influence the findings of the Inquiry.

Evidence to the Inquiry

Oral evidence has been given to the Inquiry by a number of individuals including Lord Sumption, former Justice of the Supreme Court, and academics.

The focus of the oral evidence given so far has been on what should be the priorities for the Commission. The suggestions covered a broad array of topics including (among others):

  • The context of the reforms that the Commission would consider in that Brexit is “affecting the relationships between the different institutions in the Constitution” in any case and so it may be sensible to consider significant constitutional issues at this juncture;
  • The opportunity to “rebuild public trust” in the institutions following the divisive Brexit debates;
  • The electoral system;
  • The House of Commons’ ability to control the legislative agenda;
  • The implications of the Human Rights Act 1998;
  • The separation of powers;
  • The role of the public and how the public might be engaged with the Commission;
  • Whether the Government is approaching the issues which the Commission will consider with an open mind.

The PACAC has not yet stated when the findings of the Inquiry will be published.

Selecting a tactical or strategic approach to constitutional reform

The New Labour Government’s constitutional reform programme in the 1990’s and 2000’s took what some have described as a “piecemeal” approach as it introduced devolution, enacted the Human Rights Act 1998; established a freedom of information regime and reformed the House of Lords. Given the pressure of COVID-19, the Government may find that it does not now have the time to consider constitutional reforms in the round. Therefore, there is a real possibility that this Government could replicate New Labour’s approach, by thinking about issues tactically and thus leaving some dissatisfied.

Evidence given to the Inquiry by Professor Russell, Director of the Constitution Unit at University College London, suggested that there has been a “sort of scattergun” approach by Government, including proposals such as moving the House of Lords to York; abolishing certain regulators or weakening their powers; and establishment of the IRAL. Further, there have been reports over the weekend that the Government is backing plans to reform the Supreme Court by reducing the number of Justices and renaming the institution. Lord Lisvane, a Member of the Constitutional Reform Group Steering Committee, has also suggested that the overlap between the Commission and the IRAL is “a recipe for unconstructive confusion”.

Lord Lisvane has rightly pointed out to the Inquiry the potential scale of the Commission’s remit:

The daunting thing about what is proposed is the sheer size of the canvas. As soon as you start unpacking the individual elements they expand further. For example, how do you do Government and Parliament relations without looking at the devolution settlements? How do you do access to justice for—in the condescending phrase—ordinary people without looking at the structure and resourcing of the justice system and legal aid? As soon as you start looking in more detail, the sheer size of the task starts to increase. I think that that is going to be a major challenge…

The Call for Evidence closes on 16 November. It will be interesting to see how the Committee’s findings fit with the remit of and any recommendations made by IRAL, which is due to report back later this year.

Andrew Lidbetter
Andrew Lidbetter
Partner
+44 20 7466 2066
Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465
Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998
Shameem Ahmad
Shameem Ahmad
Associate
+44 20 7466 2621

Policy Matters: An introduction to Public Inquiries

The Administrative and Public Law team hosted a Policy Matters webinar on public inquiries on Thursday 10 September 2020. Hosted by Associate Sahil Kher, the webinar featured insights from Andrew Lidbetter (the head of HSF’s Administrative and Public Law practice in London) and Nusrat Zar, who is also a partner in the team. Andrew and Nusrat both have considerable expertise of advising clients involved in public inquiries and select committee inquiries.

Some of the key issues covered on the webinar included:

  • The common features of different types of inquiries;
  • What it means to be a participant in an Inquiry;
  • Practical and commercial considerations including how a participant can deal with any potential criticism; and
  • The prospect of an inquiry into the UK Government’s handling of the COVID-19 crisis, and the wide range of commercial organisations who may be involved.

A recorded version of this webinar is now available here.

If you have any questions, please do not hesitate to get in touch with any of the contacts listed below.

Andrew Lidbetter
Andrew Lidbetter
Partner
+44 20 7466 2066
Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465
Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998
Sahil Kher
Sahil Kher
Associate
+44 20 7466 6440

Judicial reviews of inquiries

Two Divisional Court judgments have considered the position regarding the application of Article 6 of the European Convention on Human Rights (“ECHR”) (the right to a fair trial) in judicial review proceedings regarding a decision not to hold an inquiry, and the timeframe within which a judicial review of an inquiry under the Inquiries Act 2005 must be brought.

Key points

  • In order to engage the right to a fair trial under Article 6 ECHR, there must be a determination of civil rights and obligations.
  • Breaches of the state’s Article 3 ECHR duty to investigate allegations of ill-treatment can give rise to civil rights; for example, if individuals bring claims for damages associated with these breaches.
  • However, any duty to investigate Article 3 breaches by way of a public inquiry is not a duty owed to claimants who are not victims and therefore has nothing to do with such claimants’ civil rights.
  • Any judicial review of an inquiry constituted under the Inquiries Act 2005 must be brought within 14 days of the claimant becoming aware of the decision in question. The courts will uphold this tight timeframe unless there are exceptional circumstances.

Application of Article 6(1): R (Reprieve) v Prime Minister [2020] EWHC 1695 (Admin)

Background

In 2010, the Prime Minister announced that an independent inquiry would be established to investigate the alleged involvement of the UK intelligence services in the rendition and mistreatment of detainees held by foreign security services following the events of 11 September 2001. A report on the inquiry’s preparatory work was published in December 2013 and the Government invited Parliament’s Intelligence and Security Committee to investigate into the issues raised in the report; two separate reports covering these issues were published in June 2018. The Government announced, on 18 July 2019, its decision not to hold a public inquiry on the basis that various steps had already been taken to improve policy and practice.

The claimants, a human rights organisation (with particular expertise in the investigation of human rights breaches abroad) and two Members of Parliament, launched a judicial review challenging the Prime Minister’s decision not to conduct an inquiry, on the grounds that this decision constitutes a breach of Article 3 ECHR. Article 3 ECHR provides for freedom from torture, inhuman and degrading treatment or punishment. The claimants argued that the state was under a positive obligation to investigate the allegation of ill-treatment and the defendant’s decision not to hold an inquiry breached that obligation. The claimants also argued that the decision was irrational because the steps taken by the Government were not a sufficient reason for abandoning the previous decision that a public inquiry was necessary.

The Divisional Court was called upon to establish at a preliminary hearing inter alia whether Article 6(1) ECHR applied to the judicial review proceedings.

Judgment

The Divisional Court stated that its task in establishing whether Article 6(1) applied was a narrow one rooted in two indisputable principles: (1) a fair trial is a cornerstone of the rule of law and (2) the court’s function in judicial review proceedings is to ensure the scrutiny of executive action in the public interest. Consequently, even though the court was sympathetic to the claimants’ argument that the intelligence service does not operate above the law, its scope was very defined.

Article 6(1) establishes that “in the determination of his civil rights and obligations… everyone is entitled to a fair and public hearing”.  The claimants argued that Article 6(1) applied to the judicial review proceedings because the decision not to hold a public inquiry breached the defendant’s duty to hold an effective investigation into complaints of human rights abuses under Article 3 ECHR. The court accepted that breaches of the state’s Article 3 investigative duty could give rise to civil rights; for example, if individuals brought claims for damages associated with these breaches. However, in any public inquiry, the claimants would seek a determination on behalf of other individuals whose Article 3 rights might have been breached. The court concluded that the claimants could not possibly be regarded as victims of Article 3 violations. It followed that any duty to investigate Article 3 breaches by way of a public inquiry was not a duty owed to the claimants as victims. In these circumstances, it was difficult to envisage how the present judicial review proceedings – which concern the investigative duty – had anything to do with the claimants’ civil rights. The court therefore did not accept the claimants’ submission that Article 6(1) was engaged in these proceedings.

It is interesting to note the court’s observation that even though Article 6(1) was not engaged, the decision’s legality would still be appropriately examined under conventional judicial review principles. The judgment appears to be another example of the willingness of the courts to utilise domestic principles of public law to ‘plug the gaps’ where EU law and/or the ECHR does not apply.

Timescale for starting judicial reviews of inquiries: R (EA and Anor) v Chairman of the Manchester Arena Inquiry [2020] EWHC 2053 (Admin)

Background

Following the Manchester Arena bombing, on 22 October 2019, the Secretary of State for the Home Department opened an inquiry to investigate the circumstances surrounding how 22 people lost their lives in the attack. The Chairman of the Inquiry announced on 21 April 2020 his decision not to grant the claimants, three survivors of the bombing, core participant status. Twenty-three days later the claimants invited the Chairman to reconsider that decision, but he declined to do so and ten days later the judicial review claim was issued. The High Court was called upon to decide whether the application for judicial review was made out of time and if so whether time should be extended.

Judgment

The Inquiries Act 2005 provides that any judicial review of a decision made by an inquiry panel or by a Minister in relation to an inquiry must be brought within 14 days after the day on which the applicant becomes aware of the decision, unless that time is extended by the court. The Divisional Court held in this case that the proceedings should have been commenced within 14 days of the Chairman’s ruling of 21 April 2020 on core participant status.

The court also ruled that an extension of time would not be granted. In making its decision, the court stressed the importance of complying with the time limits for starting proceedings and that this is especially the case with public inquiries to ensure the inquiry is conducted efficiently. It noted that delays in relation to inquiries cause distress to those involved, impact the ability of the relevant authorities to learn from their mistakes, and cause expense. The inquiry had already been commenced so these factors weighed even more. The court was also swayed by the fact that the claimants had been late in filing their initial application to join the inquiry.

This judgment makes clear that unless there is a truly exceptional reason, a court will not extend time for judicial review challenges of decisions of public inquiries. The onus is firmly placed on prospective judicial review claimants to ensure their application is made in time. The judgment also clearly indicates that where there is any doubt as to which of a series of decisions is the key decision for the purposes of commencing judicial review proceedings, the safest option from the claimant’s perspective is to assume that time runs from the date of the earliest decision.

Andrew Lidbetter
Andrew Lidbetter
Partner
+44 20 7466 2066
Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465
Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998

Prime Minister commits to a future independent inquiry into Government’s handling of the COVID-19 crisis

Following demands from the opposition and various campaigning groups, the Prime Minister has now committed to an independent inquiry into the handling of the coronavirus pandemic. In previous weeks, the Government had been reluctant to publicly commit to an inquiry, but this pledge in the House of Commons was the first clear statement on the issue. The Prime Minister did not commit to any specific timeline for an inquiry, but noted that “now in the middle of combatting…a pandemic” was not the right time for an investigation. The structure of the inquiry is also unclear at this stage, although the Prime Minister has been urged to confirm that the inquiry would be under the Inquiries Act 2005. Downing Street has suggested that the remit would be set out “in due course”.

The issues which any inquiry will examine – which will be framed by the inquiry’s formal “terms of reference” – will depend in large part on the developing political landscape, and on how matters develop over the coming months. Some of the possible issues that we see an inquiry covering include issues around the supply of PPE, supply chain issues, the impact of the crisis on BAME individuals, and the Government’s actions in light of the scientific advice from groups such as the Scientific Advisory Group for Emergencies (“SAGE”). Some discrete aspects such as possible issues with the reporting of coronavirus deaths are already being reviewed by the Government internally, but that would not stop a future inquiry from looking at these issues.

From the perspective of commercial organisations, the inquiry could cover a very wide range of sectors and industries. For instance, pharmaceutical companies may be called on to give evidence in relation to the development of a vaccine and treatments. If the inquiry looks at the economic aspects of the crisis, large banks and financial organisations may be approached for evidence. The inquiry may also look at the role of independent advisors and organisations who are members of SAGE.

In a recent episode of our public law podcast, we discussed the possible establishment of a public inquiry into the handling of the coronavirus pandemic. The episode looked at some of the key risks to organisations, and touched on some practical learnings from HSF’s involvement in other high-profile inquiries such as the Leveson Inquiry and the Independent Inquiry into Child Sexual Abuse.

Andrew Lidbetter
Andrew Lidbetter
Partner
+44 20 7466 2066
Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465
Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998
James Wood
James Wood
Senior Associate
+44 20 7466 2306
Sahil Kher
Sahil Kher
Associate
+44 20 7466 6448

COVID-19: Pressure Points: Learning lessons from the crisis – a COVID-19 inquiry?

In the latest episode of our public law podcast, Andrew Lidbetter, Nusrat Zar and James Wood discuss the possible establishment of a public inquiry into the handling of the coronavirus pandemic.

In doing so, they look at the likely scope of any inquiry and consider the range of individuals and organisations – including commercial entities – who might be involved. In the podcast, Andrew, Nusrat and James also discuss the key implications and risks for those who might be involved, and consider some practical steps which are relevant at this early stage.

 

Listen to the latest episode on SoundCloud, Apple and Spotify and don’t forget to subscribe to the channel to receive updates on future episodes.

We will continue to develop insights to keep you abreast of legal issues arising from COVID-19 that are affecting your business now and those you may face next. You can find further resources on our COVID-19 Hub.

We welcome feedback so please do contact us (using the details below) if you’d like to discuss any of the topics in this podcast or to suggest topics for future episodes.

Andrew Lidbetter
Andrew Lidbetter
Partner
+44 20 7466 2066
Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465
Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998
Anna Eliasson
Anna Eliasson
Senior Associate
+44 20 7466 2620
James Wood
James Wood
Senior Associate
+44 20 7466 2306