Beyond the Right to an Oral Hearing: Defending the Common Law, Asserting the Constitution

Rights NI is delighted to welcome this guest post from Christopher Stanley. Christopher Stanley is Legal Officer with Rights Watch (UK) and can be reached at 

It was widely acknowledged at the Public Law Project’s excellent annual conference devoted to an assessment of the year in judicial review that the most significant judgment of the UK Supreme Court was handed down last week: Osborne and Booth v The Parole Board; In the application of James Clyde Reilly for Judicial Review (Northern Ireland) [2013] UKSC 61 (press release).  The public law practitioners and human rights workers at the PLP conference all welcomed this judgment because of its potential wider implications beyond those of the rights of sentenced prisoners applying to appear before the Parole Board.  The judgment is clear and concise and has already been subject to an excellent legal briefing by the junior counsel in the case, Vijay Jagadesham of Garden Court Chambers North.  Lord Reed delivered the judgment and the other members of the Supreme Court panel concurred without dissent.

For readers of this blog who are not public lawyers I suggest that this is a very significant judgment for human rights in relation to the liberty of the individual.  In addition there is the fact that one of the claimants was within the jurisdiction of the Northern Ireland courts.  Mr. Reilly was represented before the Supreme Court by counsel and solicitors from Belfast.  Mr Reilly’s application was allowed at first instance in Northern Ireland by Mr Justice Treacy but refused by the Northern Ireland Court of Appeal.

The case turned on the fact of when the Parole Board is required to hold an oral hearing.  The Parole Board is a statutory tribunal and therefore its decision on this matter goes to both the common law principles of procedural fairness and the rights of an individual when Article 5(4) of the European Convention on Human Rights is engaged, the right to a liberty and security.

Lord Reed set out the judgment of the court at paragraph 2 (i) that an oral hearing should take place to satisfy both the common law and Article 5(4) in terms of procedual fairness.  He outlined the key circumstances when such a hearing should take place which include the following and which, in my opinion, cover almost all eventualities: where the facts are important or in dispute, where an assessment of the applicant needs to be undertaken, to provide the applicant with the opportunity to test arguments made against him, where paper decision by the Board would not suffice and where a paper decision may have a significant impact on the prisoner’s future management in prison or future reviews of his suitability for release on license.  Importantly, Lord Reed continued and stated the fundamental right of a prisoner to participate in the procedure and that “it will be prudent for the board to allow an oral hearing if it in doubt whether to do so or not” (x)

In an elegant and compelling analysis Lord Reed drew both upon the legal philosopher Jeremy Waldron on respect for the individual when applying rules, the work of the legal academic Nicola Padfield on prisoners’ expectations and he stretched back to a case from 1748:

The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence.

(Fortescue J in Dr Bentley’s Case (R v Chancellor of Cambridge, Ex p Bentley (1748) 2 Ld Raym 1334).

The significance of this judgment can be summarized thus:

  • For the applicants it means that the Parole Board will have to make immediate arrangements to amend its guidance on oral hearing which was described as thoroughly illogical
  • It will also have an important effect on many areas of law other than prison law when an oral hearing is important to the liberty of the individual which may include those detained under mental health legislation, those in pre-charge detention when a reviews and in other forms of ex parte applications
  • The position of the Supreme Court that time saving, trouble and expense could be used by a tribunal to resist oral hearings should be guarded against; similarly this would apply to arguments around the prospect of success being used as a criteria to deny an oral hearing.
  • In terms  of funding arrangements this judgment comes when the UK government plans to reduce the scope of public funding applicants to prisoners in a range of circumstances (but maintaining public funding for representation before the Parole Board) and that the public funding arrangement will not encourage application’s such as this in the future because  the legal aid changes will deprive applicants of funding until permission is granted. Therefore, all the work done before permission will be ‘at risk’ which will deter legal representatives increasing reliance on scarce and privately funded pro bono representation.

The final, and perhaps most compelling, significance of his judgment is the current thinking of the UK Supreme Court on the relationship between the common law and the Convention, at a time when the Convention is under attack from the Conservative Party.  Lord Reed stresses the importance of the common law in protecting rights that permeates our legal system;   he cites Lord Justice-General Rodger “it would be wrong … to see the rights under the European Convention as somehow forming a wholly separate stream in our law; in truth they soak through and permeate the areas of our law in which they apply” (HM Advocate v Montgomery 2000 JC 111, 117)” (paragraph 63).

Lord Reed  does not diminish the importance of the Convention as partially incorporated by the Human Rights Act 1998 but suggests that there are existing domestic arrangements under common law which supplement the Convention rights and are an important source of authority.  As Lord Reed notes: “The values underlying both the Convention and our own constitution require that Convention rights should be protected primarily by a detailed body of domestic law”  (paragrah 56). This has also been commented upon  elsewhere.

Therefore, the Supreme Court uses the unassailable principles of common law to assert the rights of the individual in relation to the state.  It makes criticism by the UK government of this judgment untenable at a time when it is forcing through reforms of legal aid, judicial review and increasingly oustering the judiciary from reviewing the actions of the executive in decision-making processes, including defining the public interest and therefore attacking the fundamental constitutional principles of the separation of powers. If this case had been excluded by either or both the reform of the judicial review process and legal aid restrictions, then both the rights of the individual and  the constitutional balance of powers would have been far poorer as a result.  This is the constitutionally dangerous direction the government is driving us toward.