The UK Supreme Court’s judgment in Osborn v The Parole Board concerned the circumstances in which the UK Parole Board is required to hold oral hearings. The prisoners in question had been denied an oral hearing by the Parole Board under the statutory regime. Instead the prisoners' cases had been decided on paper by a single anonymous member of the board. The appellants challenged these decisions by judicial review. One of the appellants argued that the denial of an oral hearing was a failure to act fairly at common law and that it was incompatible with Article 5(4) of the European Convention on Human Rights. The appellants were initially unsuccessful but their case was eventually appealed to the Supreme Court. Allowing their appeals and speaking for the court, Lord Reed determined that as the common law duty of fairness satisfied the requirements of Article 5(4) ECHR, it followed that the parole board had also acted incompatibly with the appellant’s Convention rights.
However the real significance of this case lies in the appellants arguing their case and basing their submissions on the UK Human Rights Act and the ECHR, rather than on domestic law. This approach was shot down by the Supreme Court on the basis that human rights law is not a distinct area of law but permeates the entire legal system. Ultimately, the Supreme Court ruled that domestic law had to be the starting point in the consideration of claims and that it would be incorrect to think that “because an issue falls within the ambit of a Convention guarantee, it follows that the legal analysis of the problem should begin and end with the Strasbourg case law”.
Click here for a summary of Lord Reed’s comments.
Mark Elliott on the Public law for everyone blog argues that “one of the most striking aspects of Osborn is that it places common-law rights centre-stage, consideration of the ECHR being treated as a secondary matter. The suggestion was not that ECHR-compliance should be regarded as insignificant. However, it was common-law rights that did all the work, with the Convention playing an ancillary role as a benchmark to be used for assessing whether further development of common law rights was needed.”
Click here for a summary of Mark Elliott’s Comments.
Bulletin readers may recall that the Conservative Party has said recently they may withdraw the UK from the ECHR if their party won a future general election. This case may be relevant to those advocating a withdrawal in order to change the UK’s domestic human rights laws.