Paste In this essay, I am going to analyse R(Bourgass) v Secretary of State for Justice, an administrative case based on the exercise of ministerial powers by public bodies. The two issues raised in this case were (i) whether the decisions to segregate the prisoners for substantial periods were lawfully authorised and (ii) whether the procedure on segregation was considered fair under the common law. The decision for segregation were made under the Prison Act 1952, Rule 45 of the Prison Rules 1999 and PSO 1700. Rule 45(1) allows the prison governor to arrange the prisoner to be removed from association; rule 45(2) provides that the prisoner shall not be segregated under the rule for more than 72 hours “without the authority of the Secretary of State” and that authority “shall be for a period not exceeding 14 days.” This case also involves human rights, procedural fairness, ultra vires principle and the judicial review process in the United Kingdom.
Facts and Decisions
In this case, Bourgass has been held in segregation for more than 72 hours ordered by a prison officer and longer than 14 days that the Secretary of State may authorise. His representative initiated judicial review proceedings. They were dismissed by the High Court. The Court of Appeal dismissed the appeals, whereas the Supreme Court allowed the appeals.
Reasons for the decision:
On this first issue, it was clear from Rule 45(2) that the segregation for a period exceeding 72 hours was not authorised by the Secretary of State, but by the prison officer. It was argued by the Secretary of State that rule 45(2) allows prison governors to take decisions on behalf of the Secretary State to continue segregation, and this authority has been lawfully granted by the PSO. They relied their arguments on the Carltona principle, which stipulates that the decision made on behalf of a minister by one of the departmental officials is constitutionally the decision of the minister himself. Hence, they believed that the decision of the prison governor is the decision of the Secretary of State. However, the Supreme Court disagreed and said that a government departmental official is different from the holder of a statutory office. The relationship between prison governors and the Secretary of State is the subject of specific legislation. The holder of a statutory office, in this case, the prison governor, is independent in exercising his powers. He is “constitutionally responsible for the manner in which he discharges his office”, said Lord Reed. This was supported in Somerville v Scottish Ministers,where the House of Lords believed that prison governors and Scottish Ministers were two different bodies, hence the Carltona principle should not apply.
Furthermore, there are provisions in the 1952 Act that clearly impose specific duties on prison governors, such as section 16A and 16B, and provisions that emphasise the separate powers on the Secretary of State, such as 40A and 40E. The prison officers exercise the powers over prisoners which are conferred on them by the Secretary of State, and in turn it is the Secretary of State officers’ duty to make sure that those rules are complied with. This shows that the prison governors may exercise some powers independently, and some other powers are expressly required by law to act according to the orders given by the Secretary of State. Their constitutional separation is demonstrated clearly and it is apparent that the relationship between the prison governors and the Secretary of State bears no resemblance to the relationship between a departmental official and a minister. Their segregation beyond 72 hours without the authority of the Secretary of State was therefore unlawful. As a result, the Supreme Court allowed the appeals.
On the second issue regarding procedural fairness, the court concerned two issues: (i) the prisoner’s right to make representations and (ii) the scope of judicial review of decisions under rule 45(2) and its compatibility with Article 6(1) of the European Convention on Human Rights (ECHR). Lord Reed noted that common law fairness requires that a prisoner should be given a reasonable opportunity to make representations before a decision is made to authorise prolonged segregation. This includes providing the prisoner with sufficient information about the reasons for continued segregation to allow him to respond and the relevant evidence relied on. This would have the advantages of contributing more relevant information in the decision-making process and granting the prisoner the basic ethical right to participate in the process which would have a significant effect on his interests. In R(Osborn) v Parole Board, there were research to indicate how unfair procedures in prisons have a negative impact on prisoners’ attitudes and their prospects of rehabilitation. The serious consequences suggest the need to allow prisoners to have a fair opportunity to make representations before a decision was taken by the Secretary of State. The judge believed that “more could and should have been said” in the present case. Moreover, there were ambiguity as to the reasons for continued segregation in Bourgass’s case. The common law standard of procedural fairness had not been met because there were so little information given to the prisoner about the reasons for his solitary confinement. This clearly limited his opportunity to defend for himself. Lord Reed held that simply telling Bourgass that he was in segregation “pending an investigation into a serious assault” and “we are trying to transfer you” was inadequate.
As to whether the decisions to authorise continued segregation comply with Article 6(1)—so that the prisoner is entitled to a hearing before an independent and impartial tribunal, it depends on whether the decision involves the determination of a civil right recognised by English Law. The Prison Rules 1999 held that association with other prisoners was a normal privilege rather than a right. A prisoner does not possess any private law right to association. Therefore, article 6(1) does not apply. Besides, the Court of Appeal has ensured that judicial review could meet the requirements of Article 6(1) in this context, which will secure rights for the prisoners.
Evaluation
I agree with Lord Reed that the Carltona doctrine does not apply in this case. In the judgement, it was noted that departmental officials are required to act on minister’s instructions, whereas the Prison Rules 1999 explicitly oblige prison governors to follow their rules and orders in certain circumstances. The need to impose an explicit obligation indicates that their relationships bear no resemblance. The significant implication of this judgement is that the powers exercised by prison officers (ultra vires) would be displaced by the external scrutiny provided by the involvement of the Secretary of State, for the need to safeguard prisoners’ rights. As the judge has suggested that the legislative intent of Rule 45(2) was to safeguard the prisoners’ rights, I believe that seeking the authority of the Secretary of State (which is another body) would lead to a fair judgement on whether continued segregation was needed for the prisoner.
On the other hand, informing the prisoner about the subject matters and evidence of the case might sometimes have to be pursued in a way that takes account of other prisoners’ safety and the maintenance of prison order. Thus, Lord Reed said that “it will be sufficient to inform the prisoner in more or less general terms of the gist of the reasons for seeking the authority of the Secretary of State”. In such circumstances, the courts did not provide any solutions regarding a problem: in order to protect other prisoners’ safety, some crucial information should not be disclosed to the prisoner, then how could the prisoner reach a fair representation and judgement without the most crucial content? Moreover, although the judge did focus a lot on the negative effects of prolonged segregation on the prisoner, such as the violation of prisoner’s rights under English law or affecting the prisoner’s mental health, he did not put a lot focus on the prisoner’s right of association with other prisoners. In my opinion, this is a rather significant problem because this right which is internationally accepted is however lacking support from the UK courts.
Conclusion
This case had a great impact on reminding the prison governors not to go beyond their powers. I think that the judge had made the right judgement about the unlawful authorisation to segregate prisoners for substantial periods. The court is clearly respecting the constitutional principle of separation of powers. It is worth emphasising that there are sometimes irreversible psychological effects of prolonged solitary confinement, as pointed out by the European Committee for the Prevention of Torture, which further shows the ethical value of permitting prisoners to make reasonable representations. your essay in here…