The Right to a Fair Trial
Reconciling domestic legislation with regulations acknowledged by the European Courts of Human Rights (ECHR) illuminates perceived violations of fundamental guarantees, integration being incompatible with the principles of accountability lying within the precepts of Parliamentary sovereignty and its doctrine of implied appeal. This concept has since been superseded by Section 2 (4) ECA 1972, which entails compliance to all Community legislation. The Human Rights Act 1998 illuminated this problem but the ECHR were limited to ambiguities of interpretation with constrained formal recognition of its legality.
The 2004 Constitution of Europe consists of 36 Protocols altogether, two further ones of which relate to the Treaties of Accession. Associated with this Constitution are 50 accompanying Declarations which clarify the Charter of Fundamental Rights and which establish the European External Action Service, and the Final Act confirming the signatures appended by the Heads of the 25 Member States all agree with the Treaty, Protocols and Declarations which make up the Constitution. Whilst awaiting ratification, the Charter of Fundamental Rights is the legislation currently revealed in the Human Rights Act 1998 within the context of which can be found Articles 2 to 12, plus Article 14 and Article 1 of the first Protocol. Article 6, applying specifically to the HRA, will be re-inserted into the Constitution of Europe as Chapter VI [Article 47]: ‘right to an effective remedy and to a fair trial’
This essay briefly traces the history of the constitutional mandate or prerogative powers, discusses the hierarchy of the English legal system and the sovereignty of Parliament. It then examines the contention vis-à-vis the right to a fair trial in relation to EU policies and legislation, then attempts to reconcile both whilst focussing on the changes in the justice system in response to Article VI following the introduction of the Human Rights Act 1998 and, most especially, the signing of the formal Constitution for Europe in Rome during October 2004.
DISCUSSION
Prerogative Powers
The tacit mandate of the Constitution within the United Kingdom is realised through the Statutes, The Common Law and established Conventions through which the various organs of State are co-ordinated, an inherent part of the charter without being incorporated into the actual law. Through habitual utilisation revealing the expectations associated with these Conventions, a compliance affecting political and legal activities limits any prerogative powers, although not legally enforceable. The doctrine that maintains a separation of powers reinforces the concept of the Constitution. The Rule of Law is the third principle of the Constitution which confirms the legitimacy of the Government and prevents arbitrary legislation being applied indiscriminately.
As a result, freedom is assured in the absence of specific contrary legislation, a situation which applies equally to Government ministers. Delegated legislation can, however, be subject to judicial review with a challenge being subject to the principles of natural justice, revealed in the ‘rule against bias’ and the ‘right to a fair hearing’. This was applied with respect to a case involving property development and a local councillor. One of the remedies for a judicial review is the prerogative of Certiorari reverting the initial problem back to its initiator. The prerogative remedy of mandamus results in a prohibition preventing an action being carried out. Other prerogative remedies are habeus corpus, injunctions and declarations, and damages.
Hierarchy of English Legal System
Currently, the English legal system is administered by a range of Government departments with the Home Office being responsible for the upkeep of the police, although the autonomous police forces, apart from the Metropolitan Police Force and the British Transport Police, are not responsible to the Home Office but to each Local Authority Police Committee. At any one time there are a range of Ministers involved with all major issues of law, with Ministers from various government departments playing roles in legal matters through their responsibility for law reform in their particular area. Recently, with the emphasis on law and order making up successive Governments’ manifestos, one department being responsible for both civil liberties and public order could lead to a detriment in one or the other depending where the majority of funding had been given.
The Home Office is just one department responsible for British laws. The Law Officers’ Department and the Lord Chancellor’s Department also contribute to law reform. Heading the Law Officers’ Department are Government Ministers, although not Cabinet members. These Ministers are responsible for major litigation involving the Government. All cases referred by the police for prosecution must now go before the Crown Prosecution Service, run by the Director of Public Prosecutions, who is answerable to the Attorney General and Solicitor General.
Where other countries have a single Ministerial office responsible for co-ordinating criminal offences, Britain’s legal system is administered through this traditional hierarchy of offices each responsible for their own particular area of concern and often covering branches of work directly in contravention of each other, e.g. the Lord Chancellor’s Department is at present responsible for the Head of the Judiciary and Speaker of the House of Lords, at the same time fulfilling a role as Member of the Cabinet.
Sovereignty of Parliament
There are certain conventions attached to behaviour expected of the judiciary, with them being expected to refrain from political activities. Judges can only be discharged by the exclusive decisions of both the Houses of Commons and Lords in conjunction with approval by the Crown under Section 11(3) of the Supreme Court Act 1981. The Sovereignty of Parliament, in association with acknowledged Conventions, contributes to the sanctity of the Constitution, with Statute reinforcing this safeguard. Until EU legislation was ratified Parliamentary precedence prevailed through Statute, encoded within legislation and sustained by the English legal system.
This espousal of English law, and ultimately Parliament, precluded the judiciary from assuming supremacy unless the Government were culpable of illicit conduct.
This concept of a later Parliament not being bound by its predecessor also failed to gain Lord Denning’s support , referring, as he does, to a ‘political reality’, limitations of which also impact upon social and economic factors – especially relevant since the inception and ratification of EU legislation and its impact up the English domestic Courts’ system. New sources of law, such as the devolved administrations realised in The Scotland Act 1998 and the Government of Wales Act 1998, and especially evident since the ECHR was ratified in October 2000, also complicate matters, although devolved legislation and all UK Ministers remain ultimately accountable to UK Parliament. Section 2(1) of the European Communities Act 1972 limits Parliament’s Sovereign Rights, with EU legislation being a contract between Member States under which mutual duties are accepted. Many of the Articles of the Convention are limited by various Derogations which can also be applied, although EU law retains the ultimate supremacy as evidenced in Factortame and, although loss of sovereignty is limited, the House of Lords acknowledged the discrepancy. The sovereignty of Parliament was curtailed with the Courts’ requirement “…to override any national law found to be in conflict with any directly enforceable community law…” creating a potential for impasse with the Constitution, and rescinding Parliament’s remit to unilaterally legislate with impunity. Section 2(4) of the Convention is especially relevant in binding any implied repeal by Parliament, although there is always potential for derogations to be applied as necessary.
Right to a Fair Trial
A concept that Parliament legitimises Executive policy is naïve in evidence of its extraordinary power to approve legislation enacted by Parliament realised through its Cabinet. This current Government is not immune to accusations of abuse of prerogative powers with the Courts ruling that the Labour Government acted ultra vires in the order to attack Iraq without the sanctions of Parliament or due regard for UN Resolution 1441. This is not the first instance of a ruling of ultra vires being issued in respect of the Government when it was ruled that the Government had over-stepped their jurisdiction in ordering the Civil Aviation Authority to adhere to their policies when, legitimately, their powers only sanctioned the circulation of a guidance.
Reform has been slow in coming to the legal system and it is difficult to elicit whether the incipient fundamental rights legislation was the driver effecting the change, or vice versa. The Auld Committee sought to investigate areas needed for reform with the Report published in . It had been suggested that the current jury system needs to be more representative, although this observation was not clarified, and that a ‘re-appraisal’ of the legal system would have a beneficial effect on minority groups, especially in relation to the method of selecting jurors and the effect this would have on legal proceedings. Sir Robin Auld reported that, for serious offences, trial by jury should continue but made recommendations to reduce jury trials by removing the elective rights of a Defendant and replacing it with discretionary approval by the Magistrate, potentially compromising the Human Rights currently being acknowledged by the lower courts.
In response to the Criminal Court Review Report Mr Michael Zander QC responded publicly in which he suggests that much of Auld conclusions are based on anecdote, not fact and cites the Crown Court Study Survey incorporated in the Runciman Commission [1992] in which 74% of the 8,000 ethnically-balanced jurors questioned described their experiences as ‘very interesting’, with a negative response quantified as only 4%. Zander concludes from this Survey that no measurable difference can be elucidated from the ethnic mix encountered amongst randomly selected jurors, with one Judge commenting “There are many different ethnic minorities. Indeed, we may not be very far away from a day when perhaps a majority of men and women will belong to one ethnic minority or another...it is hard to believe that there is any body of past experience that justifies so radical and problematical a shift of principle as this”
Article 6 [HRA 1998] and Article 47 Charter of Fundamental Rights
A number of claw-back clauses and derogations currently limit the effectiveness of Article 6 [HRA] with the judiciary, at present, deferring to the ECHR when analysing the public authority resolutions to ensure compliance with EU provisions, following which a Certificate of Compatibility may be issued in accordance with Section 19. It must be noted the exclusion of Article 13 from the HRA, whereby an effective remedy under domestic law would have been guaranteed. As a consequence, no effective remedy exists in English law, as it stands, until Article 47 [Constitution of Europe] has been sanctioned in 2006. The majority of cases are initiated in the lower courts in England and Wales where no authority has been issued to grant declarations, precluding an appeal on grounds of human rights.
Furthermore, the current HRA enables the judiciary to append a proportionality analysis to restrict a convention right unless they can establish it is ‘necessary in a democratic society’, fulfilling a ‘pressing social need’ – highly objected to in exparte Brind. Concern has been expressed that the judiciary should be prohibited from exhibiting this privilege under Schedule 1 of the House of Commons Disqualification Act 1975 as it prejudices the doctrine of judicial political neutrality. Moreover, suggestions of continued human rights abuses through the semantically broad interpretation allowed under the Convention should not be left to the responsibility of a judge’s unilateral interpretation evincing compatibility where none might otherwise exist.
Following 2006, if the Constitution is ratified, Article 47 ensures adequate legal aid, or some form of it, exists for those who would otherwise fail to obtain a fair trial. The current system, however, is captured within a legal conundrum. Legal aid cannot currently be applied to human rights cases whilst, conversely, those who have most need to establish their rights through legislation are generally those who have little means to finance themselves. Declarations of incompatibility would preclude the acceptability of any contingency fee basis since it would mean that win or lose, no fee could become payable although this could possibly represent a contradiction in terms of the ethos of Article 6. Article 47 of the new Constitution makes it clear that ‘everyone shall have the possibility of being advised, defended and represented…Legal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice’
CONCLUSION
“Successive British governments have maintained that human rights are already adequately protected by law in the United Kingdom. You have to look long and hard before you can detect any difference between the English common law and the principles set out in the Convention” .
The Government’s policies of internment in Northern Ireland during the 1970s flouted the basic concepts of the Rule of Law, subsequently considered an illegality as well as unethical and immoral. The Executive has sometimes appeared to interpret the law according to its purposes, or pursue certain legislation rather vociferously, revealing a potential conflict with the ethos of the Rule of Law. The introduction of the ECHR has limited the power of both the executive and the Parliament, although attempts have been made by various Home Secretaries to derogate Article 5 of the Convention in respect of asylum seekers and, more recently the anti-terrorism issue.
With the EU legislation limiting the sovereignty of Parliament it remains questionable whether the importance and relevance of the Rule of Law will retain sufficient impact to maintain true separation of powers and uphold the prerogative power bestowed by the Crown, and maintained by the Courts, as a privilege by convention in the face of the emerging Constitution of Europe, and especially Article 47 which exhibits a semiotic specificity towards ‘the right to an effective remedy and a right to a fair trial’ - for everyone. The jury system within the English legal system has been described as “a democratic humanising element” which takes into account “the opinion of the lay majority”.
Conversely, it has also been described as “an anti-democratic, irrational and haphazard legislator, whose erratic and secret decisions run counter to the rule of law”. Whilst the argument considers trial by jury as contrary to the rule of law and “its symbolic significance is magnified beyond its practical significance” the emotive significance cannot be lost on the proponents of Article 6 associated with the Human Rights Act 1998 and, more recently, Article 47. There can be little doubt that more public attention has focused on legislation within the courts as a result of the Human Rights Act 1998 but it will be very difficult to obtain a definitive answer until the result of referenda are known in respect of the 2004 Treaty. In the meantime, it must be accepted that change has occurred to the justice system in respect of Article 6, and will continue to occur, albeit in a limited fashion with greater changes anticipated following ratification of the newly signed Constitution of Europe with its integral Charter of Fundamental Rights.
Word Count: 2,500 (excluding bibliography)
BIBLIOGRAPHY
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Legislation
Article 6 of the ECHR only engages when a person's civil rights and obligations are in issue. Most public inquiries are investigatory or advisory only and not executive in character, so would not fall within Article 6
Article 15 provides for derogation from the rights and freedoms in cases of ‘public emergency’
Bill of Rights 1689
European Communities Act 1972
Schedule 1 of the House of Commons Disqualification Act 1975
Section 2(1), European Communities Act 1972
Section 2(4), European Communities Act 1972
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Available Online:
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http://ue.eu.int/igcpdf/en/04/cg00/cg00087-ad01re01.en04.pdf
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Articles
Lord Justice Sir Robin Auld: Criminal Court Review Report. Chapter 2, Paragraphs 7 – 9. HMSO Publication
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Darbyshire, Penny Criminal Law Review [1991] Crim LR 740
Cases
Blackburn v. Attorney-General [1971] 2 All ER 1380
Costa v. ENEL [1964] CMLR 425, ECJ
CND v Prime Minister [2003]
Ellen Street Estates v. Minister of Health [1934] 1 KB 590, CA.
Entick v. Carrington (1765) 19 St Tr 1030; Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374, HL
Laker Airways v Department Of Trade [1977]
Malone v. Metropolitan Police Commissioner [1979] Ch 344
R v. Secretary of State for Transport ex parte Factortame (No. 2) [1990] 3 WLR 818
R v Hendon, ex parte Chorley [1933]
R. v Secretary of State for theHome Department, ex parte Fire Brigades Unions [1995] 2 AC 513. (Fire BrigadesUnions, at 567)
R v Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [1996] 4 All ER at 385
