Inaugural Garden Court Chambers/LAG Public Law Conference champions judicial review
Shu Shin Luh, a barrister at Garden Court Chambers, reports back on the conference held in June:
For the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature, but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals (Blackstone’s Commentaries on the Laws of England, chapter 1, emphasis in original).
First written in 1765, but still powerful today, Blackstone’s text sought to describe and define our fundamental rights: security of the person; liberty, protected by the writ of habeas corpus; and property. And to protect these rights, Blackstone told us, we find our guardians in judicial review and access to justice for all, including the right to a fair hearing before an impartial tribunal and the right to know the evidence against us.
At a time where judicial reference to an EU Charter of Fundamental Rights led to a parliamentary inquiry and ‘human rights’ violations are casually used to describe a footballer’s ban from the World Cup because of a biting incident, it is easy to forget that fundamental rights are deeply embedded in the fabric of our common law.
A reminder of this echoed loud and clear at the first annual Garden Court Chambers/Legal Action Group Public Law Conference on 28 June 2014. Across a keynote address, three plenary lectures and 13 breakout sessions (ranging from community care, housing and family law to the rights of children, migrants, prisoners and the vulnerable), the conference examined the relationship between common law safeguards and the rights afforded under the European Convention on Human Rights (‘the convention’) and beyond. The common thread that emerged throughout the day was the capacity of the common law to embrace and absorb the rigours and substance of the convention and other international instruments to provide practical and effective protections in domestic law. As Lord Reed reminded us in Osborn v Parole Board [2013] UKSC 61:
The importance of the [Human Rights Act (HRA) 1998] is unquestionable. It does not however supercede the protection of human rights under the common law or statute, or create a discrete body of law based upon the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate …in truth [convention rights] soak through and permeate [our domestic law] (paras 57 and 63).
Keynote speaker, the Honourable Mr Justice McCloskey, President of the Upper Tribunal (Immigration and Asylum Chamber), illustrated how a body of international law starting with the Geneva Declaration of the Rights of the Child in 1924 evolved to lend substance and meaning to the duty on the secretary of state, in the immigration context, to safeguard and promote the welfare of children under Borders, Citizenship and Immigration Act 2009 s55.
Regarding closed material proceedings, Amanda Weston and Paul Troop reiterated the core minimum standard of procedural fairness described in A and others v UK App No 3455/05, 19 February 2009 and applied by the House of Lords in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28. In AF (No 3), fairness was described as a principled standard derived from the common law, which evolved to encompass an article 6 fair trial standard more expansive than under the article itself. In the face of the Justice and Security Act 2013, which seeks to extend the reaches of secret justice to all aspects of our daily lives, it will fall to practitioners and the court to uphold the very best traditions of a fair trial.
In discussing equality law, Stephen Knafler QC pointed us towards Lord Reed’s speech in Osborn (above) and gave us the confidence to believe that the British human rights landscape, founded on the common law, would remain strong enough to protect the rights of people in our society even if there were to be a retreat from the HRA. Through the dicta of Laws LJ in SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550, the common law has more than amply demonstrated to us its capacity to evolve.
Against this backdrop, Jan Luba QC posited that the common law has yet to progress fully to adopt proportionality into its armoury for the protection of fundamental rights.
All this, and more exchanges throughout the conference, provided the most potent reminder of all: that central to our constitution’s evolution and the rule of law is judicial review as a control mechanism by which the courts provide the constitutional forum for protecting against abuses of power by public authorities.
As the surviving chapter of Magna Carta (1297 version) puts it: ‘We will sell to no man, we will not deny or defer to any man either justice or right.’ During the House of Lords’ second reading on 30 June 2014 of the Criminal Justice and Courts Bill (which seeks to undermine these very constitutional safeguards), Lord Brown gave this modern spin:
More and more areas of our lives are controlled by public authorities. At the same time, we have become, understandably, I suggest, less trusting and certainly less deferential towards those in authority over us. I sometimes wonder whether it did not all start with John McEnroe’s outraged questioning of line calls at Wimbledon way back in the 1970s. However, we should consider how in the long run his behaviour has contributed to the hugely improved policing of those lines that is in operation today … By the same token, the use of judicial review has to my mind undoubtedly raised the standards of public decision-making in recent years (Hansard, HL Debates col 1591, 30 June 2014).
Judicial review and access to justice have never been more important than now. In the face of the growing threat to the rule of law, that so many, both from Garden Court and elsewhere in the profession (solicitors, barristers, academics and those in the charitable sector), gave up their Saturday in the summer sun to attend a conference about our constitutional values, reaffirms the willingness and commitment within the legal profession to fight to retain them. ‘Recte faciendo neminem timens’ (‘Do right, fear no one!’)