Category Archives: Personal Comment

Seminar: The Prospects for a British Bill of Rights, Sir Leigh Lewis, 24 January 2013, UCL’s Constitution Unit

UCL’s Constitution Unit hosted a seminar looking at the prospect for a British Bill of Right, which was given by Sir Leigh Lewis KCB. Sir Leigh was the chair of the controversial commission set up by the Prime Minister to look at the possible use for a British Bill of Rights. The report was published on 18 December 2012, and this is the first chance that Sir Leigh has had to reflect on it in public.

Background

After a quick straw poll in the room showing that most people had not read the summary of the report, Sir Leigh started with its background. The commission was set up as a response to the political impasse caused by human rights in the coalition formation discussions. It was already clear to most that the manifestos of the two parties clashed on this are, and so the formation of a commission is a tried and tested political response which buys the politicians some time before having to deal with the issue.

Sir Leigh was appointed the Chair, following his long service in the Department of Work and Pensions, and he was supported by eight other commissioners. Each party selected four commissioners, and often their views represented the views of the party they were selected by. The terms of reference that the committee worked under were ‘interesting’; it was apparent that the parties had negotiated them to a fine level of detail. The key words for the commissioners were as follows: The Commission will investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties. This was taken by all the commissioners to mean that any resulting Bill would supplement the existing European Convention in UK law, even though it was noted by a small minority that they wished it were not so.

While the commission was working, the external environment put greater pressures on the work they were doing. As examples, the Hirst judgment on prisoner voting had returned to the fore, and the deportation cases of Abu Hamza and Abu Quatada had exacerbated the polarisation of the views that were already deeply held by many.

Methods

The commission decided that transparency was key in their work, so all the papers and minutes were published. The commission met 19 times, and engaged in different types of outreach work. This includes open consultations for the public, a large by-invitation seminar in Birmingham, receipt of submissions from key groups, and discussions with the devolved administrations. All the responses were read and summarised by the secretariat, and about half were read the commissioners.

The commission decided not to hold Leveson-style hearing for pragmatic reasons, such as time allowed and costs, and also they felt that it did not suit the nature of the task. Similar to this, the commission did not commission their own polling; although deliberative polling was considered, finding the correct questions to ask would prove too difficult, and the commission wanted no skew at all.

Recommendations

They released 24 recommendations, 17 of which were agreed by all commissioners. The key one, that a United Kingdom Bill of Rights should be established so long as it incorporated the EUROPEAN CONVENTION ON HUMAN RIGHTS fully, was only agreed by seven of the nine commissioners. The two who disagreed, Baroness Helena Kennedy QC and Professor Philippe Sands QC believed that this level of detail was not necessary, as the failure of the EUROPEAN CONVENTION ON HUMAN RIGHTS, European Court of Human Rights and HUMAN RIGHTS ACT had not been fully explored by the commission.

One thing that was agreed by all was that they thought it key to provide steers as to what any such Bill should contain. A question that arose out of this was whether the Bill should contain other additional rights. This was not opposed in principle; the Convention if drafted today would be a very different document to the one drafted 50 years ago. Various rights were proposed, including equality rights, and children’s rights. Some members also thought that enshrining the right to a form of administrative justice should also be enshrined in the Bill if it was ever drafted. When considering socio-economic and environmental rights, it was decided that they would not be suitable for such a Bill, as most felt that overall that these rights required the making of choices and decisions that were best left to the elected politicians, not the courts.

Mechanisms

The commission also considered the mechanisms with any Bill should operate on broadly similar principles to those in the HUMAN RIGHTS ACT. This included a mechanism for a declaration of incompatibility such as that found in the HUMAN RIGHTS ACT. The commission found the formula in the HUMAN RIGHTS ACT to be a subtle balance between the elected legislature and the judiciary, and saw no reason to change that.

Responsibilities

The commission also considered whether any such Bill should include a concept of responsibilities. This was suggested in light of the green papers released under the previous Labour government, and the discussions at the Birmingham seminar showed support for this. The commission concluded that it was not desirable to make rights conditional upon the exercise of responsibilities; this denied the inherent universality of rights. Instead, it was suggested that some form of declaratory non-justiciable statement could be made to encourage those covered by the Bill to support the ties of respect and responsibility that bind society.

Devolution and Europe

As noted above, the devolved administrations were also considered in the process. The devolved governments of Scotland and Wales understandably felt that the matter was for them to decide in their own area, and said that their populations were much less concerned anyway. However, Sir Leigh said that the polling, with the above caveat in mind, showed that the reactions of the people in these countries were much in line with England on the matter. The Northern Ireland question was much more complicated, and there was not time to discuss it in the seminar. However, it was clear that any future debate must be sensitive to the devolution or independence of the countries in the United Kingdom.

The commission was also ask to consider and review the European Court of Human Rights as part of a wider constitutional review. This was prior to the UK’s assumption of the chairmanship of the Council of Europe. One matter that stuck out was the backlog of cases, which has only modestly dropped since it became a public concern. The commission recommended a significant reduction in the number of cases that was sent to the court, and that these were limited to serious cases where interpretation of the Convention was required. There were also questions about the remedies the court could offer, and suggested reform of the judicial appointment process. However, this was only ever to be interim advice and was left at these points.

Reactions

Following publication, the reactions were overwhelmingly those of disapproval. The Telegraph’s response was the only positive plaudit from the Press, and Sir Leigh read out some of the less flattering ones, including a comment from Ben Emmerson QC, who said the commission was kin to the editors of the Daily Mail and the Sun sitting down together to write the constitution. Sir Leigh’s own view reflected that of the commission’s values: that there needs to be respect for different viewpoints and that any debate must be well-informed. He said that the argument that better education would solve the problem of public ownership of human rights was too simplistic, but there is a nugget of truth to the matter. Sir Leigh borrowed the words of Lord Lester QC, who noted that in Europe we are rare as a country to not view human rights as part of our constitutional rights, and human rights cases as matter decided by our laws, but rather in line purely with the Convention. Rather, we feel a sense of alienation about the whole concept. This issue of public ownership is why the seven of nine commissioners suggested the adoption of a Bill of Rights for the United Kingdom.

The seminar was followed up by a Q&A session done under Chatham House rules.

Thoughts

One thing was clear after that seminar: Sir Leigh was very proud of the commission’s thoroughness, and was not disheartened by the lack of approval. He admitted that he knew it would always have been a difficult and mostly thankless task. What was most interesting about the seminar was the impact of the human rights arguments within the devolved administrations. While the coalition was busy forming the government in Westminster and having discussions about human rights, they had not considered what the other administrations within the United Kingdom may feel about the issue. Welsh politicians have renewed calls for a separate legal jurisdiction to England, and the Scottish independence referendum has the chance to change the political structure of the United Kingdom in a big way. With these two issues and the increasingly loud rhetoric on both sides of the debate, it is not surprising that the commission did not achieve as much as it had hoped. Its lasting contribution may well be to provide a snapshot of the human rights agenda at this point in time, so that any debate to be had will be, as the commission suggests, well-informed.

 

Other UCL Constitution Unit seminars can be found here.

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Cameras in Court: is there any point?

The debate about having cameras in court has been going for some time now. The basic point, that justice should not only be done but should also seen to be done is an important one (if a very literal interpretation of the point), holds true. We are so used to seeing the goings-on in Parliament on TV; the growth of interest in the work of Parliamentary committees and inquiries has led to their broadcast; and with tweeting is now allowed in courts so long as it complies with the Lord Chief Justice’s guidance. We have instant updates from journalists, bloggers, and interested observers to these proceedings, so why shouldn’t there be cameras in court, broadcasting proceedings?

I went to a debate held by the Media Society at the ITN building on Gray’s Inn Road on this topic on 18 October 2011, and my note on the proceedings is as follows:

On 6 September 2011, the Secretary of State for Justice and Lord Chancellor Ken Clarke announced that the blanket ban on filming in courts was to be lifted as a way to increase public understanding of the justice system. The plan is to broadcast the sentencing remarks of Court of Appeal judges, with a later move to those in the Crown Court. Witnesses, jurors, and deliberations would not be broadcast.

This move came after the criticism of sentencing and reasoning in light of the August riots. However, the notion of filming in court has been mooted for a long time, and the debate on the topic is not new. In light of this announcement, the Media Society held a panel discussion on cameras in court.

Alastair Stewart, ITN newsreader of long standing, was the Chair for the event, and the following were the panellists:

Prof E Barendt;

John Battle (ITN Head of Complaince);

Simon Bucks (Sky News);

Sir Ivan Lawrence QC;

Fran Unsworth (BBC); and

John Whittingdale MP.

Stewart started with a few remarks about the background to the topic, point both to Clarke’s announcement and the UKSC’s broadcasts. He also noted that Scottish courts sometimes allow it for cases of public interest, but there has been varied success with the scheme. He continued by saying that while TV has a role in increasing confidence in the criminal justice system, some critical thinking needs to be done about how to make it work to the tastes of the parties involved, both those involved in the proceedings, and those broadcasting them.

Following a video by Mark Austin which set out an introduction to the debate as well as some initial points for both sides, the discussion got underway.

[AF note: two things stood out for me in the video: firstly, I never knew that the debate about film and photographs in court dated from the Dr Crippen trial in 1910, with photography being banned 15 years later; and that the first major push for the debate in modern times was as a result of the Louise Woodward trials in the US].

Whittingdale started by commenting that he was surprised it has taken this long to get a point where courts proceedings will be televised, considering how simple, easy and natural it seems as part of the #Leveson inquiry. His comments followed along the same lines as a speech given by the Master of the Rolls about proceedings and judgments being given in public already, noting that the public don’t scrutinise them by visiting courts. He noted that the arguments for cameras in court are very like those made for the televising of Parliament, and that the behaviour of MPs has not changed much [AF note: there always seems to be a lot more people in the public gallery in Parliament than in a court though]. Certainly, the now very well-known footage of Murdochs Senior and Junior in front of the Select Committee commanded a huge audience, but perhaps this was due to the range of interest in the subject matter, as few people would have seen it otherwise.

Moving on to Sir Ivan Lawrence QC, his rebuttal focused on the notion that Parliament is not concerned with the activity in courts, and the courts are targeted on individuals, not issues. As such, the two cannot be held to be the same. His fear is that the proceedings could be tainted:

  1. advocates are very unlikely to grandstand, but there is always the temptation;
  2. justice is a delicate matter, and the perceptions of the non-lawyers involved may mean they are less willing to take an active role; and
  3. judges will be constantly thinking about whether something can be broadcast or not.

An important pointt Lawrence raised is that there is very little considered when someone is acquitted, as the media simply does not allow the stigma to to fall away.

Fran Unsworth of the BBC followed by saying that it is a valid experiment as it supports open justice, and naturally the BBC has a role in educating people. She noted that England and Wales is lagging behind other jurisdictions, even though this type of broadcast improves transparency. The question is whether a reporter should take this role or whether people should have direct access to it.

Unsworth felt that there is a sense of double standards, as tweeting is allowed in court but cameras are not, though of course camera equipment technology has improved dramatically so it would not take up nearly as much space as feared. She felt that the proposals were too limited as the the public would be bored and the chance wasted. Any worries that hearings would become a media circus should remember that US trials like the OJ Simpson trials were unique for obvious reasons.

Simon Bucks of Sky News followed; he pointed out that broadcasts of the House of Commons have been the norm for nearly 22 years, and now it all seems innocuous and unsurprising. That the trials for Parliamentary expenses fraud were not broadcast, despite the public interest (both meanings), was strange, as it is a core part of democracy to see such events. It must be remembered that people with day jobs or who works away from courts location do not have access to justice in the sense of a viewer or a consumer. Bucks continued by saying that broadcasters have been running a steady campaign for years on this topic, and saw the riots hearings as a perfect example of what could be achieved.

Professor Barendt admitted straight away that he comes at the concept as a sceptic, especially noting that the progression to the Crown Court could be more interesting, as the participants are usually more unwilling. His main concern that is the broadcasters will use their discretion to cover more newsworthy trials, and not local or civil matters. He wonders whether it would leave to mandatory gavel-to-gavel coverage as in the USA, or only extracts; the choice requires an editorial distinction. He agreed that we need to think about the reputation of an acquitted defendant given that the media can shape views and ideas.

John Battle started by mentioning that he has also been heavily involved in the background to the campaign, having met the Lord Chief Justice years before on the matter (prior to Judge LJ being the LCJ). However, he stated very simply that filming is not a revolutionary idea; the courts the British public don’t get to see are their own, and the images available are scarce and very selective.

Returning to earlier concerns, he believed that there is very little evidence to support worries about disruption to advocates, and no evidence about the loss of protection for vulnerable witnesses. Judges will also be able to control the filming, in line with the rules for protected applications. He went on to say that the experiment can help feed the debate and assure those in proceedings what will happen. There will be better reporting of trials, and will also show the public just how informed and knowledgeable both judges and counsel are.

Questions from the floor:

Joshua Rozenberg asked why the Lord Chancellor has agreed to this now; are the government concerned the public aren’t well-informed? And would reporting on TV show the judges as capable of supporting and sympathising?

JW responded that he wasn’t sure why, but there is a definitely a growing feeling for openness in this government, something JB agreed with. IL is supportive of broadcasting judgments, something EB agrees with but there is a caveat that the media need to work closely with the LCJ to ensure standards on both sides are maintained, especially as the media needs to respect a judicial decision to not have a camera in court. FU believes that the plans do not go far enough, and that the audience would benefit from hearing the arguments.

Bob Satchell of the Society of Editors said that he feels it is a bit innocent to believe that the word rapist would no longer be used in association with an acquitted defendant. IL agreed, saying that a lifetime of working in courts says that the public don’t see someone as acquitted, but as an acquitted rapist. JB says that legislation would be required to ensure that it is done fairly, but the regulators already exist to protect defendants; he also wonders why the statements and summing up could not also be included to give a more rounded picture. JW believes that this trial would increasingly remove the stigma as they can understand why a decision was reached. SB points out that the proposition would be introduced incrementally, and that the nature of media coverage is selective.

A question asked about whether legal terminology and arguments would be explained. FU felt that that is not what is of interest, but the principle of broadcasting remains. She felt it is like Parliament, some of the debates are electric, but most of it is boring.

In response to a point raised by Stewart again about liberty and reputation, IL stated that it is important to ensure that the stream of justice is not polluted. FU says that people are selective already in what they write, so they should not expect anything different about broadcasts. IL points that this may also make an increasing problem with juror research worse.

After some personal comments directed at IL, EB defended his co-panellist and espoused the view that there is no right to see a criminal trial, which could be supported by a very narrow reading of Article 6 ECHR. FU accepts that this is true, but states that the judge would have control; the important thing to consider would then be why the trial could not be viewed.

A question from the floor made a point that journalists would select trials based upon what they think, so would it better to consult the public on what they wish to see? IL reiterated the point that most court proceedings are dull, and dipping in and out gives a poor understanding of how proceedings work. FU for the most part agreed, saying that people need to be allowed to choose themselves. However IL thinks that it is more a practical issue which would add to judicial workloads. SB mentioned a red stop button for judges to stop a live stream and wondered whether this would be an option for criminal trials. JB points out there still need to be a clear delineation between editorial and judicial controls.

Mark Stephens of FSL pointed out that the Commonwealth has evidence related to broadcast proceedings, and notes that the populace of each country was just as concerned as those here, but the broadcasts work. He points to a prosecutor following the Vancouver riots who felt it was important to have justice seen to be done, and done openly. EB responded by saying that selectivity is a very unattractive proposition, and it was noticeable that a media conference in Beijing pointed to the criminal justice system in England and Wales as lacking in freedom of speech.

A question from the floor about how filming courts could make celebrity defendants and glamourise the facts was responded to by SB saying the visual consequences may act as a deterrent. FU says that it would make no difference to the impact of a case, as such as case would be well known enough anyway; the paper press creates the marketability.

Another question from the floor made a point about scrutiny of justice, and the need to distinguish between open and transparent democracy and how journalism works [AF note: this is also something I thought about, will there be a need for legal pundits to explain the rationale behind judgments?]. Another question asked whether reporters would use footage to increase their ratings. JW said that it would be a slow process of increasing access, as there is a clear need to work out how the system would work, but JB said that it is important it happens as the open justice system here is very weak. JW continued by saying that the Murdoch pie incident in itself was good news, but the irritation comes from the fact that a pie could make it into a Select Committee hearing.

IL moved the discussed back to selectivity and pointed to current examples in the news about a focus on views concerning a defendant and their families, and the witnesses, which could be viewed by jurors. JB disagreed with this, pointing the trial of Conrad Murray in the USA, and the role of jurors and their oath in proceedings. However, EB and IL pointed out that people can get their information about cases from papers anyway.

Some final remarks:

EB feels that TV coverage of trials will exacerbate unfair influence on the criminal justice system, but the coverage itself will be more sensational than the trial.

IL believes that there has been no public demand for this, as the public see there are dangers to justice [AF note: or they may just see it as too dull].

Finally, JW believes that the trial will go ahead and will be extended, especially with improving technology. A mention in the Queen’s Speech could show proper commitment to the process.

Where are we now?

Now we have the campaign reaching a new strength, with BBC, Sky, and ITN writing to the heads of the political parties to gain their support for broadcasting courts. It cannot be denied that the principle is a sound one, but my concern is more about the practicality. Putting aside all the worries about grandstanding and witness protection, for which I am sure protocols would be developed, what good would broadcasting court proceedings actually do?

Watching my Twitter timeline, at times it is fascinating to see that people tune into web broadcasts of the Supreme Court and Parliamentary proceedings while they are at work. However, these are people with an interest in the matter at hand, be they wanting to see the outcome of a trial, or just marvelling at the levels of advocacy. How many of the people the broadcasters say cameras in court will reach actually care? My guess is not many. Also, how many people will be able to watch court proceedings live? How many will watch them on catch-up TV? Probably more for the latter, but still those not able to catch it will go for one of the excellent round-ups that is provided by other sources. I can’t quite imagine people wanting to avoid news of a verdict in a case quite the same way as avoiding the football scores.

Another concern is that courts are odd places at times, with some very archaic expressions and behaviours still used in the more traditional proceedings. Would the broadcasters just leave their audience with the proceedings, or would they provide a talking head or two to explain what is being broadcast? A lot of the court proceedings broadcast already are watched by practitioners or those with a good understanding of what is happening, but to watch Supreme Court tv with a bare understanding of what is happening will not improve anyone’s knowledge or experience of the justice system. There are excellent bloggers out there explaining the law, cases and developlments; The Judicial Office is getting extremely good at putting cases and remarks of interest on its website for people to find; and the Supreme Court publishes its judgments with press releases and summaries to help explain the decision reached. There so far has been no comment by the broadcasters about what they will do with the information gleaned from the broadcast. Each has used experts in the past to discuss important cases and developments, but there was no mention of such explanation in the debate, nor in any subsequent media (if someone can find it, please do show it to me). The public will still be left with the same information; it will be presented in a new, instant way, but still with the same level of understanding of what is happening and what is being said.

While I agree with the principle that justice should be seen to be done, cameras in court as they stand simply appear to be improving democracy in style only. Transparency has become a watchword of this government, turning something fundamental to popular democracy into a tickbox exercise. It is my belief that it is not the presentation of the information that matters, it is what you do with it and how we understand it that matters.

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