Lack of Commons Sense

Civitas, 23 February 2011

Less than a fortnight after MPs rightly staged a resistance against the Strasbourg-based European Court of Human Rights (ECtHR), political heavy weights have now turned their fire on the UK Supreme Court. Not only are the criticisms of our highest domestic court entirely unfounded, they betray, at best, a dangerous confusion about the relationship between Parliament and the judiciary, and at worst a deliberate attempt to disregard this fundamental, constitutional balance.

The recent uproar comes in response to a case brought by two applicants subject to restrictions under the Sexual Offences Act 2003. Under the current provisions, anyone who receives a custodial sentence of 30 months or more for a sexual offence must fulfil ‘notification requirements’ for “an indefinite period” (SOA, s.82). These include the duty to notify the police if they travel abroad and of their current address. The Court held that the absence of any right to a review renders the scheme incompatible with Art 8 ECHR (right to respect for private life).

The Home Secretary Theresa May is “appalled” by the decision, and David Cameron has lamented how “completely offensive it is, once again, to have a ruling by a court that flies in the face of common sense”. The judgement does not compel Parliament to amend the legislation (although MPs are reticent to admit it). Nonetheless, in this instance, the Home Office is right to change the current arrangements. But if the Government was justified in its refusal to bend to the ECtHR’s demands over prisoner voting, why should the legislature cede to the UK Supreme Court in this case?

Firstly, and this point must be emphasised, the difference does not pertain to the substance of the decisions. From either a constitutional or human rights perspective, it is irrelevant for the purposes of this distinction whether we support or object to prisoner voting or the register review.

The difference lies in the level of respect each court shows for parliamentary sovereignty. So much has already been said in relation to the Hirst judgement on this point that it suffices here to simply note how flagrantly the ECtHR sought to undermine and override our democratic political process. In contrast, the Supreme Court’s judgement rigorously seeks to support the purpose of the legislation in question, and hence uphold the decision of the sovereign Parliament. Yet this may seem counterintuitive: how can the court rule in line with the legislation if its decision ultimately results in a change to the law?

Accepting that here “the importance of the legislative objective has never been in doubt”, Lord Phillips cites with approval a case from Northern Ireland which also considered these notification requirements. There, the court accepted that although the scheme did “interfere” with Art 8 rights, it would be justified if “it can be shown that such interference will achieve the aim that it aspires to”.

The notification regime aims to “assist in the prevention and detection of sexual offences”. Underlying the scheme are the twin assumptions that “there is a risk that those who have committed serious sexual offences…may commit further sexual offences” and the notification requirements will assist the police if this risk does materialise. Continuing such requirements indefinitely assumes that those individuals will present a risk “for the rest of their lives”. Where an individual is no longer a risk – and this can be robustly proven – no purpose is served by keeping them on the register. Indeed, the Court noted that “subjecting them to these requirements can only impose an unnecessary and unproductive burden on the responsible authorities”. (Although we cannot determine the potential risk this group presented, the Court considered Home Office data which recorded that 75% of the offenders monitored were not reconvicted.)

So, unlike in Strasbourg, our judges are not seeking to “overturn legislation passed by an elected Parliament”. Quite the opposite; they are seeking to ensure that legislation achieves the purpose Parliament intended it to. Indeed, Lord Rodger explicitly defended the sovereignty of Parliament: even in light of inconclusive evidence, “it must be open to Parliament to take the view that…even such young offenders [one applicant in this case was 11 at the time of the offence] should be required to comply with the notification regime indefinitely”.

Lord Rodger also raises an intriguing point of statutory interpretation. Under s.82, the notification requirements persist for “an indefinite period”, not for “life”. Given the absence of any review, Lord Rodger notes: “it is perhaps a little surprising: ‘life’ would have been a shorter and clearer way of expressing what is actually involved”. Although he does not go quite this far, arguably the possibility of review better gives effect to the precise wording of the statute; if the requirements may be lifted after review, “indefinite” is not forced to mean “life”, but takes its more natural meaning – an uncertain, undecided length of time.

Cameron has vowed to do “the minimum necessary” to comply with the ruling, presenting the limited nature of the amendments as an act of defiance against a rebellious judiciary. Sex offenders must wait for 15 years after their release before they can apply for a review, and there will be no automatic appeals. (The Government should take care, however, that plans to let the police adjudicate the review do not infringe Art 6 ECHR for want of sufficient independence.)

Yet, far from running against the ruling, the courts agree that the legislature can set a “high threshold for review as to the time that an application could first be made”. Similarly, while Lord Phillips emphasises that offenders should have their notification requirements removed if “it is possible for them to demonstrate” that they “no longer pose any significant risk”, he notes that “no evidence has been adduced that demonstrates that this is possible”. As Napo representative, Harry Fletcher, has stated: “It is highly likely that very few appeals will be successful.”

More fundamentally, Parliament need not comply with the ruling at all. Of course, if it fails to amend the statute, the issue may be taken to Strasbourg and the ECtHR would more than likely reach the same conclusion as the Supreme Court. But the fact remains, the judgement does not compel the legislature to act.

Speaking extra-judicially, Lord Phillips has commented: “When we review administrative action we do not substitute our decisions for those of the executive. We check that the executive has acted in accordance with the law, as laid down by Parliament.” The Strasbourg judges failed to do this in Hirst, drawing the margin of appreciation far too narrowly; our judges have not made the same mistake. This is not an example of judges “undermining public confidence in the rule of law”, but judges upholding the rule of law. If our politicians continue to attack our judiciary in this way, it is they who risk undermining the very constitutional principles that they purport to defend.