Month: April 2012

In a previous post, I considered the common law and constitutional aspects of the principle of open justice. In Wednesday’s Irish Times, Carol Coulter reported on a case in which a child asylum seeker is alleging perceptible bias on the part of a member of the Refugee Appeals Tribunal. At present, the applicant is seeking leave to bring judicial review proceedings against the rejection of her asylum application, and the leave hearing is expected in the coming months. In an accompanying story, Coulter discussed previous cases which have challenged the secrecy and perceived unfairness of the Tribunal. That reference to “secrecy” set me thinking about the principle of open justice in the context of closed tribunals, and this post is a first attempt at applying the principle in that context. In that respect, I very much welcome discussion of my analysis in the comments.

The starting point is section 19(4A) of the Refugee Act, 1996 (also here) as inserted by section 7 of the Immigration Act, 2003 (also here), which provides:

(a) The chairperson of the Tribunal may, at his or her discretion, decide not to publish (other than to the persons referred to in section 16(17) [of the 1996 Act, also here]) a decision of the Tribunal which in his or her opinion is not of legal importance.

(b) Any decision published shall exclude any matters which would tend to identify a person as an applicant under the Act or otherwise breach the requirement that the identity of applicants be kept confidential.

A challenge to the unamended section 19 of the 1996 Act was dismissed as moot in Jonathan v Ireland [2002] IEHC 59 (31 May 2002). In Atanasov, Fontu and Opesyitan v Refugee Appeals Tribunal [2007] 4 IR 94, [2007] 1 ILRM 288, [2006] IESC 53 (26 July 2006), MacMenamin J in the High Court held that the section after amendment must be interpreted consistently with the constitutional entitlement to natural justice and fair procedures, and that the failure of the Chairperson of the Tribunal to make available to the applicants relevant tribunal decisions sought by them was breach of this constitutional entitlement. In the Supreme Court, Geoghegan J (Murray CJ, and Denham, McGuinness and Hardiman JJ concurring) dismissed the appeal:

As to what kind of fair procedures the Constitution may require in any given instance will always depend on the particular circumstances and in the case of tribunals as to what constitutes fair practice may greatly differ. … fair procedures require some reasonable mechanisms for achieving consistency in both the interpretation and the application of the law in cases like this of a similar category. Yet, if relevant previous decisions are not available to an appellant, he or she has no way of knowing whether there is such consistency. … Previous decisions of the Tribunal may be ones which if applied in the appellant’s case would benefit the appellant but if there is no access he has no knowledge of them and indeed he has no guarantee that the member of the Tribunal has any personal knowledge of the previous decisions made by different colleagues. It does not require an elaborate review of relevant case law and fair procedures to come to the conclusion that such a secret system is manifestly unfair. The unfairness is compounded if, as in this jurisdiction, the presenting officers as advocates against the appellants have full access to the previous decisions. That raises immediately an “equality of arms” issue.
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Not only is the Scottish Law Commission (SLC) undertaking a comprehensive review of Scots Contract Law in light of the Draft Common Frame of Reference (DCFR) of Principles, Definitions and Model Rules of European Private Law, but the Australian Attorney-General, Nicola Roxon, has just released a discussion paper to explore the scope for reforming Australian Contract Law.

The most recent discussion paper produced by the SLC discusses contract formation for the electronic age (DP 154, March 2012, pdf). It follows an earlier discussion paper with interpretation of contract (DP 147, Feb 2011, pdf), and a joint project (pdf) with the Law Commission of England and Wales on the proposed Common European Sales Law. Moreover, the SLC intend to publish further discussion papers, including one in the near future on remedies for breach of contract. Chapter 9 of the contract formation discussion paper contains 51 questions, and the Appendix contains some draft statutory provisions, drawn from various European texts.

The Australian review is equally as ambitious. The discussion paper (doc | pdf) aims to improve the efficiency and effectiveness of commercial and consumer transactions; and it therefore considers whether Australian contact law could be reformed to:

• enhance accessibility, certainty and simplicity
• set standards of conduct
• better support innovation and participation in the digital economy
• better meet the evolving needs of businesses particularly small and medium businesses
• make the law more elastic to promote long-term relationships, and
• harmonise and internationalise contract law.

Is any similar review likely in Ireland in the near future, I wonder?

Adverts by the Core Issues campaign group, centred around the slogan above, suggesting that gay people could be cured, have been banned from London buses by Boris Johnson, Mayor of London, and chair of Transport for London.

On the other hand, the British Humanist Association ran an advertising campaign on London buses several years ago. Their slogan said “There’s probably no god. Now stop worrying and enjoy your life”. More recently, Stonewall ran a campaign around the slogan “Some people are gay. Get over it!”.

Both the BHA campaign and the Core Issues campaign were controversial, and cleared by the Advertising Standards Authority update: notwithstanding earlier reports, it seems that the ASA did not adjudicate on the Core Issues campaign. But the opposition to the latter has been much greater, resulting in the Mayor’s decision to ban the adverts. I am very confused about this, as I can see no material difference between the three campaigns. All three are insulting or offensive to significant groups of the population, and all three should be assessed on the same standard. They should all be published, or all banned. For my own part, I think that the above slogan is horribly offensive, but I don’t think that offense is a sufficient standard to ban it or any of the other adverts. But if it is, it should be applied consistently. I forsee a judicial review of the mayor’s decision, either on the ground that it is unreasonable to act inconsistently, or that it was a disproportionate infringement on Core Issues’ free speech rights.

Update 1 (21 April 2012): Kirsten Sjøvoll has written a superb blogpost discussing the free speech issues at stake here; some extracts:

No ads! Not here! Get over it? – Censorship, Hate Speech, and Freedom of Expression

… There is no universally accepted definition of “hate speech” and state authorities always tread a fine line when censoring speech which, while offensive or distasteful does not obviously rise to the level of hate speech. … Typically what exactly amounts to “hatred” and what type of speech is likely to incite, promote or justify it will be fact-specific. The context of the speech, as well as the target audience will be important but not determinative. The European Court of Human Rights has dealt with the issue of hate speech on a number of occasions but only in February 2012 did it finally consider the question of sexual orientation hate speech. In Vejdeland and Others v Sweden [case no. 1813/07], the Court unanimously held that the applicants’ conviction for the dissemination of approximately 100 homophobic leaflets to students in a secondary school was not a violation of their article 10 rights. …

At its lowest, the Core Values advert does not sit comfortably with the ideals of tolerance and acceptance upon which modern society should be based. …. So was the Mayor justified in banning the advert? I am not convinced that he was. Although offensive and ill-informed, the European Court itself recognised in Vejdeland that this would not generally be enough to justify restricting freedom of expression. I would argue that there is a need to look behind the words to the intention: are they intended to degrade, discriminate, insult or incite hatred on the grounds of sexual orientation? Or are they merely a viewpoint which, however ignorant and distasteful, has a right to be expressed? …

Update 2 (24 April 2012): In Ireland, section 41(3) of the Broadcasting Act, 2009 (also here) provides

A broadcaster shall not broadcast an advertisement which is directed towards a political end …

In the UK, various provisions of the Communications Act, 2003 have a similar effect. I have discussed the compatibility of these provisions with Article 10 of the European Convention on Human Rights in several posts on this blog. In R (on the application of London Christian Radio) v Radio Advertising Clearance Centre [2012] EWHC 1043 (Admin) (20 April 2012), Silber J upheld the refusal of the respondent to permit the broadcast by the applicant of an advertisement concerning marginalisation of Christians in the workplace. The respondent considered that the advert was political and therefore prohibited by section 321 of the Communications Act, 2003; and Silber J held that the restriction was compatible with Article 10(2) of the European Convention. On the UK Human Rights blog Rosalind English has put the Core Values controversy into that context:

Ban on Christian advertising was lawful, says court

… The purpose of the ban on political advertising was to protect the public from the potential mischief of partial political advertising, and the views of the advertiser, as to whether an advertisement was political, were irrelevant. … Silber J considered the case of R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] AC 1312, [2008] UKHL 15 (12 March 2008) and concluded that even though that case is awaiting a ruling from the Grand Chamber in Strasbourg [on appeal from here, blogged here], he was bound by the House of Lords’ ruling that the prohibitions on political advertising contained in sections 319 and 321 of the 2003 Act were justified as being necessary in a democratic society and therefore compatible with Article 10. …

Comment

It is serendipitous and somehow telling that this ruling was handed down within weeks of Transport for London scrapping a series of advertisements promoted by a Christian organisation implying that therapy could change sexual orientation. … it serves to show that much of the deliberation about whether an advertisement goes beyond the prohibited borders of “political” promotion is confounded by the very mischief the legislation seeks to avoid: the content of the message itself.

… Most utterances work to advance some interests as defined by some agenda, at least in the very broad sense contained in … [section 321(2)(b) of the Communications Act, 2003]. Therefore all kinds of utterances should, strictly speaking, fall foul of its prohibition. The act of choosing which ones do and which ones don’t is concealed in this case, as it is in all the others, behind a smokescreen of higher arguments about democracy and public rights. … In consequence, this debate forces the question whether there is, in truth, any form of issue-driven speech that is not political, if “political” is so broadly defined as to cover anything has consequences. …

A little while ago, I argued that liberty, democracy and the rule of law together constitute the constitutional trinity on which many modern states are founded, and that, not only are there the traditionally understood strong liberal and democratic justifications for freedom of expression, there are also equally strong free speech justifications founded in the rule of law. In yesterday’s decision in R (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 (03 April 2012), the Court of Appeal for England and Wales made this point in rhetoric of great eloquence, perspicuity and vigour (though the judgments are curiously ambivalent in their ambit and ambition).

In my earlier post, I argued that, a commitment to the rule of law – where law is equally applied in open court by an impartial judiciary – both reinforces and is reinforced by robust protection of freedom of expression. The proper protection of fundamental rights reinforces the necessity for the protection of free speech as one of those fundamental rights. The proper functioning of impartial judicial tribunals is reinforced by the protection of free speech, which ensures monitoring of and comment upon the operation of such tribunals. The proper role of government is similarly reinforced by the protection of free speech, which ensures monitoring of and comment upon the operation of government. Moreover, the protection of free speech allows for the discussion of laws to ensure that they meet the basic requirements or irreducible minima of good laws. Hence, many of the elements of freedom of expression which we take for granted seem to flow at least as much from the rule of law as they do from liberal and/or democratic free speech justifications.
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