Preventing unfairness of one's own making

My heart missed a beat yesterday at breakfast. A newsreader announced that the Supreme Court of the United Kingdom had held that fairness does not trump public safety concerns.

Not to worry. The fuller story was that a stay of proceedings should be ordered if there was no alternative means of avoiding unfair proceedings.

This was a civil case: R(on the application of Begum) v Special Immigration Appeals Commission [2021] UKSC 7. In civil cases fairness is assessed by taking into account the interests of all parties, and some forensic disadvantage will not necessarily prevent continuation of the proceedings.

A stay of proceedings, when used in the context of fairness, is usually aimed at protecting a party from the unfairness that would occur if proceedings were allowed to continue.

In the unusual circumstances of this case, the stay would prevent Ms Begum from appealing against an order depriving her of her citizenship of the United Kingdom. At least, until the circumstances changed to the extent that she would be able properly to participate in her appeal.

The related issues before the Supreme Court were able to be determined without causing unfairness to her, because no issues of fact were involved.

Some interesting points are illustrated in the judgment of the Court, delivered by Lord Reed P. Examples are the differences in approach to appeals, depending on whether they are against discretions or against evaluative judgements; the need for appellate courts to have an evidential basis for their determinations of facts; the appropriateness of judicial deference to the decisions of ministers who are answerable to Parliament; and the need to recognise when guides to decision-making are not rules and so do not turn a discretion into an evaluative judgement.

(I am spelling judgement with that middle e to draw attention to the point that what is being addressed is the mental process, not the outcome. The outcome is, as we know, spelt in law without that middle e. The courts, in contrast, tend to use the latter spelling most of the time.)

The danger of holding dual-citizenship is illustrated by the circumstances of this case.

The principle of legality, rights limitation by necessary implication

Parliament may make laws that deliberately infringe people’s rights. Including rights contained in a Bill of Rights.

 

But bills of rights may require that legislation is to be interpreted consistently with individual rights, so far as it is possible to do so.

 

The exact wording of this sort of interpretive requirement may vary between bills of rights in different states. [1]

 

However, there is a generally applicable principle which requires that when Parliament intends its legislation to infringe individual rights, it can only do so “by express words or necessary implication.” This is called the principle of legality.

 

Differences over whether rights infringement was a “necessary implication” were central in D (SC 31/2019) v Police [2021] NZSC 2 (9 February 2021). [2]

 

The majority held that the relevant legislation was insufficiently clear to displace the presumption against retrospective penalties. The minority considered that the only available interpretation of the legislation was that it did displace that presumption.

 

It is for Parliament to decide what to do to avoid the consequent incongruities (noted by Glazebrook J, dissenting on this point, at [243]-[248] and referred to in the joint majority judgment of Winkelmann CJ and O’Regan J at [82]).

Given the disagreement here among Judges of the final appeal Court over application of the principle of legality, you might fairly ask whether the majority could have given clear guidance on how such disagreement might be avoided in future. Should the principle of legality have been modified by excluding “necessary implication”, so that clear words are required for legislation to infringe rights? A statutory example of clear words is mentioned at [79].

 

The rejection in New Zealand of the more “far-reaching” interpretive approach in Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557 drew mention from Glazebrook J at [253] of academic commentary about when the courts might be prepared to override Parliament’s purpose.

 

The extent to which, on an appeal against sentence, the appellate court should consider evidence of recent (that is, post-sentencing) assessments an offender’s prospects of rehabilitation, also arose for comment in this case.

 

No objection had been taken to the consideration of such material by the appellate courts here, so the point did not need to be decided, but William Young J observed that on sentence appeals the issue is whether there had been an error at sentencing, so he had reservations about the practice ([305]-[307]). Glazebrook J had reservations too, but on the narrower ground that the scheme of the present legislation seemed to be against consideration of such updating material (at [262]).

There are also some interesting remarks on judgment anonymisation in contrast to name suppression: see [136]-[147].

I don’t need to distress you with a more detailed consideration of this appeal, because the Court itself sets out an admirably clear summary of the positions taken by each Judge and the result of the case (at [1]-[11]). Thank goodness for that.

Update: All the judges in this case recognised that Parliament may wish to address the anomalies identified by Glazebrook J (see majority judgment at [82]). A Bill was introduced on 17 March 2021, and it became law on 23 March 2021, to make the retrospective effect explicit in respect of people convicted and sentenced on or after 14 October 2016 (when the Registration Act came into force) for offences committed in New Zealand or overseas before that date. An exception is made for the individual appellant in D (SC 31/2019), who can keep his victory in the appeal. This exception may be for constitutional reasons, illustrating the separation of powers - Parliament, in correcting its legislation after the successful efforts of an appellant, will not interfere with the court's decision in that individual's case.

 

 

[1] For example, s 6 of the New Zealand Bill of Rights Act 1990, s 3 of the Human Rights Act 1998 [UK], and see my comment on the difference between these (8 September 2011). See also my discussion of Momcilovic (9 September 2011).

 

[2] The principle of legality is referred to in this case at [76]. For background, see Bruce Chen “The Principle of Legality: Issues of Rationale and Application” (2015) 41 Monash University Law Review 329. In New Zealand the principle has statutory form in s 6 of the New Zealand Bill of Rights Act 1990. Its rationale as an interpretive aspect of the rule of law is that Parliament understands the way the courts will interpret its legislation, treating it as improbable that there would be a departure from fundamental rights without express and unambiguous statutory wording to avoid the risk that legislation will have unintended consequences.