Case Notes: Administrative Law

Gillan and Quinton v.
United Kingdom
Application no. 4158/05 European Court of Human Rights 12th
January 2010
Prevention of terrorism - Whether summary powers of stop and search
violated Article 8 of the European Convention on Human Rights
Sections 44 and 45 Terrorism Act 2000
Under section 44 of the Terrorism Act 2000 a police officer of the rank
of commander or above [section 44(4)(b)] may issue an authorisation
extending to the whole or part of the Metropolitan Police District. The
authorising officer must consider that the authorisation is expedient for the
prevention of acts of terrorism [section 44(3)]. Within the area to which the
authorisation applies, a constable in uniform can stop a vehicle or pedestrian
without the need for reasonable grounds to suspect involvement in acts of
terrorism [section 44(1) and (2)]. The section 44 power may be exercised only
to search for articles which could be used in connection with terrorism
[section 45(1)(a)] but may be exercised whether or not the constable has
grounds for suspecting the presence of such articles [section 45(1)(b)]. In the
absence of such an authorisation, reasonable grounds for suspicion are
required. The Code of Practice on stop and search states that section 44
powers must not be used to stop and search for reasons unconnected with
terrorism and should be used to search only for articles which could be used
for terrorist purposes. Under section 46, an authorisation can last no more
than 28 days and must be confirmed by the Home Secretary within 48 hours.
Since section 44 came into force on February 19, 2001, rolling
authorisations, each covering the whole of the Metropolitan Police District
and each for the maximum permissible period, had been made and
confirmed. The authorisations and confirmations were not made public.
In September 2003 G, a 26 year-old student, was stopped for 20 minutes
and searched when on his way to join a demonstration against the Defence
Systems and Equipment International Exhibition (the arms fair) at the Excel
Centre at Docklands in East London. The police seized papers which gave
information about the demonstration but which had no connection with
terrorism. Q, a journalist, was stopped (the record showed for 5 minutes but
she thought it was more like 30 minutes) while walking towards the
exhibition and was searched despite showing the police her press cards. She
was told to stop filming. Nothing was found and Q was allowed to proceed,
though she was so distressed that she felt unable to return to the
demonstration.
G and Q challenged the legality of the stop and search powers by way of
judicial review. They argued that (i) the relevant authorisation and
confirmation, since they formed part of a rolling programme of
authorisations covering the entire London area, were ultra vires. There were
clear indications that Parliament intended a section 44 authorisation to be
given and confirmed only in response to an imminent terrorist threat to a
specific location in respect of which normal powers of stop and search
(requiring reasonable suspicion) were inadequate; (ii) the use of the section
44 authorisation to stop and search protestors was contrary to the legislative
purpose of the 2000 Act and that guidance given to police officers was either
non-existent or calculated to cause officers to abuse the powers; and (iii) the
authorisations and use of the powers to stop and search protestors were a
disproportionate interference with their rights under Articles 5, 8, 9, 10 and
11 of the European Convention on Human Rights (ECHR).
The Divisional Court (Brooke LJ and Maurice Kay J) dismissed the
applications ([2003] EWHC 2545). They held that (i) the relevant
authorisation was not ultra vires. Parliament clearly envisaged that an anti-
terrorist authorisation might encompass any place within a police area, and
not merely a specified locality. This was placed beyond doubt by the language
of section 44 which expressly envisaged an authorisation covering an entire
police area or district. Section 44 gave the relevant senior police officer a
broad discretion as to the width of the authorisation, subject to the Home
Secretarys confirmation. The judicial function in scrutinising a decision of
this kind was necessarily a limited one. The assessment of national security
and the measures required to protect it was primarily for the government
and parliament; (ii) there was just enough evidence to persuade the court
that, in the absence of evidence that the powers were being habitually used
on occasions which might represent symbolic targets, the arms fair was an
occasion where the use of section 44 powers was needed; (iii) the exercise
and use of the powers was proportionate to the gravity of the risk. The threat
posed by terrorist activity was such that it provided the necessary
justification for any violation of the claimants rights under the Convention.
The Court of Appeal (Lord Woolf LCJ and Buxton and Arden LJJ)
dismissed an appeal ([2004] EWHC Civ 1067). Parliament had permitted
random stops and searches subject to safeguards. The statutory scheme left
how the power was to be used to the discretion of the senior police officer.
Expedient was to be given its ordinary meaning of advantageous. So
interpreted, there was no conflict with the Articles of the ECHR. If those
Articles were to be infringed, it would be because of the manner of exercise
of the power, not its existence. Any deprivation of liberty was justifiable
under Article 5(1)(b). This being so, it was unnecessary to decide whether
there had been a violation of Article 5(1), but the better view was that there
was no deprivation of liberty, taking into account the likely limited nature of
any infringement in a normal stop and search and the fact that the aim was
not to deprive an individual of liberty but rather to effect a verification. Nor
did Articles 10 and 11 apply. Properly used as a measure of limited duration
to search for articles connected with terrorism, the stop and search power
would not impinge on the rights to freedom of expression or assembly. The
stop and search power did violate the applicants Article 8 rights as an
extremely wide power to intrude on privacy, but the interference was in
accordance with the law and proportionate to the objective of combating
acts of terrorism, having regard to the nature of the arms fair, its location
near an airport and a previous site of a terrorist attack, and the fact that a
protest was taking place.
The House of Lords unanimously dismissed the applicants appeals.
Expedient had a meaning quite distinct from necessary and there was no
room for the inference that Parliament did not mean what it said. Indeed,
there was every indication that Parliament appreciated the significance of
the power it was conferring but thought it appropriate to combat terrorism,
provided the power was subject to effective constraints and these were
provided for in the statute. The rolling programme of authorisations was
not ultra vires. All the relevant authorisations and confirmations conformed
to the statutory limits on duration and area. Renewal was expressly
authorised by section 46(7) and the authorisations and confirmations
complied with the statute. The evidence did not support the inference of a
routine bureaucratic exercise in the renewal of authorisations. The summary
stop and search did not amount to a deprivation of liberty under Article 5. It
was relatively brief, the person would not be arrested, handcuffed, confined
or removed to a different place. They should not be regarded as being
detained in the sense of confined or kept in custody, but more properly of
being detained in the sense of kept from proceeding or kept waiting (per
Lord Bingham). The search did not amount to a breach of Article 8 but was
of the kind to which passengers uncomplainingly submit at airports (per
Lord Bingham). Nor were there violations of Articles 10 or 11. Further, the stop
and search provisions met the requirement of being in accordance with the
law under the Convention (ie they had some basis in domestic law and that
law was adequately accessible to the public and reasonably foreseeable to
enable those affected to regulate their conduct accordingly, and there were
sufficient safeguards to avoid the risk of the power being abused or exercised
arbitrarily.
G and Q then applied to the European Court of Human Rights.
Held
(i) That the element of coercion was indicative of a deprivation of liberty
within Article 5(1). Although the length of time during which each
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applicant was stopped and searched did not in either case exceed 30
minutes, during this period the applicants were entirely deprived of any
freedom of movement. If they had refused to submit to the search, they
would have been liable to arrest, detention and criminal charges.
However, it was not necessary to fully determine this in the light of the
Courts findings under Article 8.
(ii) The searches constituted an interference with the right to privacy under
Article 8(1) ECHR. Irrespective of whether in a particular case
correspondence or diaries or other private documents were discovered
and read or other intimate items revealed, the use of coercive powers to
require an individual to submit to a detailed search of the person,
clothing and personal belongings amounted to a clear interference with
the right to respect for private life. The analogy drawn by the
government with searches to which passengers submit at airports was
not persuasive. An air traveller may be seen as consenting to such a
search by choosing to travel. He knows that his bags are liable to be
searched before boarding the aeroplane and has the choice to leave
items behind. The search powers under section 44 were qualitatively
different. The individual could be stopped anywhere and at any time,
without notice and without any choice as to whether or not to submit
to the search.
(iii) There had been a violation of Article 8(2) ECHR. The powers of
authorisation and confirmation and of stop and search under sections
44 and 45 were not sufficiently circumscribed or subject to adequate
legal safeguards against abuse and were not, therefore, in accordance
with the law. In accordance with the law required the impugned
measure to have some basis in domestic law and to be compatible with
the rule of law. The law must be adequately accessible and foreseeable ie
sufficiently precise to enable the individual to regulate his conduct.
Domestic law must afford a measure of protection against arbitrary
interference by public authorities with Convention rights. An executive
legal discretion must not be unfettered. The law must indicate with
sufficient clarity the scope of any such discretion and the manner of its
exercise. The power of stop and search had a basis in domestic law ie ss
44-47 of the 2000 Act, and the Code of Practice, a public document, set
out the details of the manner in which a constable must carry out a
search. However, the provisions conferred a wide discretion and, in the
Courts view, the safeguards provided by domestic law had not been
demonstrated to constitute a real curb on those wide powers such as to
adequately protect the individual from arbitrary interference. An
authorisation could be made when considered expedient, meaning no
more than advantageous or helpful. There was no requirement at the
authorisation stage that the stop and search power was necessary and
so no requirement of proportionality. Although an authorisation was
subject to confirmation by the Home Secretary within 48 hours,
confirmation had never been refused and nor had an earlier expiry time
ever been substituted. Although authorisation and confirmation was
subject to judicial review, the width of the powers was such as to present
formidable obstacles in showing any authorisation or confirmation was
ultra vires or an abuse of power. The failure of the temporal and
geographical restrictions provided by Parliament to act as any real check
were demonstrated by the fact that an authorisation for the
Metropolitan Police District had been continuously renewed in a rolling
programme since the powers were first granted. Although an officer was
obliged in carrying out a search to comply with the Code of Practice, the
Code governed the mode in which the search was carried out and did
not restrict the decision to stop and search which was based on a
hunch or professional intuition. The sole proviso was the purpose of
the search ie looking for articles which could be used in connection with
terrorism.
(iv) In view of the finding of a violation under Article 8, it was unnecessary
to examine the complaints under articles 5, 10 and 11 ECHR.
Comment
Although the national courts had unanimously found the section 44 and 45
powers to be lawful, in the Divisional Court Brooke LJ had expressed the view
that there was just enough evidence that the use of section 44 powers was
needed but that this had been a fairly close call. In his Reports for 2005,
2006, 2007 and 2008 Lord Carlile, the government appointed Independent
Reviewer into the operation of the 2000 Act, had expressed his view that
section 44 could be used less and that he found it hard to understand why
section 44 authorisations were perceived to be needed in some force areas
but not others with strikingly similar profiles.
A rather condemning indictment of the use of the summary power of
stop and search was their apparent lack of effectiveness in actually
identifying and detaining those involved in acts of terrorism. Ministry of
Justice statistics showed that 33,177 searches were conducted under section
44 in 2004/05, 44,545 in 2005/06, 37,000 in 2006/07 and 117,278 in 2007/08
(the increase being attributable to 7/7). In his 2008 report Lord Carlile had
stated that there was "little or no evidence that the use of section 44 had
the potential to prevent an act of terrorism as compared with other statutory
powers of stop and search. While arrests for other crimes had followed
searches under the section, none of the many thousands of searches had ever
related to a terrorism offence. He noted that examples of poor and
unnecessary use of section 44 abounded, there being evidence of cases
where the person stopped was so obviously far from any known terrorism
profile that, realistically, there was not the slightest possibility of him/her
being a terrorist. The statistics also showed that black and Asian people were
disproportionately affected by the powers and also there had been a practice
of stopping and searching white people purely to produce greater racial
balance in the statistics.
Although the European Court of Human Rights traditionally allows
states a wide margin of appreciation in decision-making in the context of
national security, the Court fairly emphatically denounced the legality of the
powers of authorisation, confirmation and exercise in this case.
Once again, the case raises the issue of how far a government can go in
taking steps to combat terrorism. The greater the power and the greater the
restriction on citizens individual liberty, then the expectation is the more
effective the power will be in achieving its objective. People may be more
willing to have their freedom curtailed if the result is that terrorism is more
effectively controlled. Summary powers of stop and search, however, which
operate without the need for any reasonable suspicion but which are
supposedly exercised on a hunch or on the intuition of the police officer,
are patently open to abuse ie use for unintended purposes, most particularly
in the context of public protest, and as a measure to assist in general crime
prevention which is not terrorist related. If such powers are to be conferred,
then they need to be closely circumscribed and controlled. The especially
damning feature of the summary powers of stop and search, however, was
that they had not achieved the national security objective although they
had led to some arrests, they had never led to convictions for terrorist
offences. This does not necessarily mean that they had not had a
preventative effect on terrorist activity. That is impossible to gauge.
R (on the application of Binyam Mohamed) v Secretary of
State for Foreign and Commonwealth Affairs
[2010] EWCA Civ 65
Whether certain paragraphs should be redacted from a courts judgment
in the interests of national security Balancing the public interest in open
justice, democratic accountability and the rule of law with the interests
of national security
Facts
The respondent, B, had issued proceedings in the High Court for an order that
the UK government supply certain documents on a confidential basis to his
lawyers in the United States. At the time, B was being held at Guantanamo
Bay and required the documents to assist in his defence against charges in the
US of involvement in acts of terrorism which, if established, could have carried
the death penalty. The charges were based on confessions by B which he
claimed to be false, having been obtained as a result of torture or inhuman
treatment carried out in various locations, including Pakistan, Morocco, Kabul
and Bagram. The US authorities had given the British intelligence services
particulars of Bs detention and treatment and B had been interviewed by a
member of the British security services. The documents would assist B to
establish his allegations of torture. Bs application for disclosure was based on
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the courts jurisdiction to order a third party who has become involved in
wrongdoing to give the victim any documentation in its custody to assist the
victim in identifying and pursuing the wrongdoer (see Norwich Pharmacal Co
v Customs and Excise Commissioners [1974] AC 133). The Foreign Secretary
provided certain documents to the court on a confidential basis, comprising
information given by US intelligence services to the UK intelligence services
on the basis that such information would not be disclosed without the
consent of the US government the control principle. The Foreign Secretary
was not prepared to release these documents without the consent of the US
government on the grounds of national security; in particular, that the US
would review its intelligence sharing arrangements, possibly to the detriment
of the UK. The Divisional Court found in Bs favour but did not grant the relief
sought pending a decision of the Foreign Secretary as to whether to enter a
claim of public interest immunity in respect of the disclosure of the
information which would otherwise follow from the courts decision [2008]
EWHC 2048 (Admin). The judgment of the court redacted (excised) paragraphs
summarising information given by US intelligence to the British security
services and about the interview carried out by the member of the British
security services. The Foreign Secretary then submitted certificates in which he
claimed that it was in the public interest to deny B the documents sought and
that the redacted paragraphs should remain excised. Disclosure, it was argued,
would profoundly inhibit the sharing of intelligence information with the UK
by the US and have repercussions to the international relations of the UK more
generally. Shortly afterwards, a US court ordered the disclosure of the requisite
documents to Bs lawyers and all charges against him were subsequently
dropped. The High Court ultimately decided that the redacted paragraphs
should be included in the open judgment ([2009] EWHC 2549). It concluded
that the control principle was not inviolable and there was no real risk of
serious harm to the national security of the UK. In contrast, the public interest
in making the paragraphs public was overwhelming. The minister appealed
to the Court of Appeal.
In the meantime, Judge Kessler in the US District Court gave an Opinion
in Farhi Saeed Bin Mohammed v Barack Obama (Civil Action No. 05-1347)
where much of the evidence on which the US government relied was said to
have been provided by B while detained in Bagram and Guantanamo Bay. The
petitioner in the US claimed that the evidence against him was unreliable as
it had been infected by the interrogation and torture of B when detained in
Pakistan, Morocco and Kabul. Judge Kessler concluded that:
[Bs] trauma lasted for two long years ... he was physically and
psychologically tortured. His genitals were mutilated. He was deprived of
sleep and food. He was summarily transported from one prison to
another. Captors held him in stress positions for days at a time. He was
forced to listen to piercingly loud music and the screams of other
prisoners while locked in a pitch-black cell. All the while, he was forced
to inculpate himself and others in various plots to imperil Americans.
Judge Kessler found that Bs lengthy and prior torture was an
established fact.
Held
The Court of Appeal dismissed the appeal on the following grounds, although
the court noted that it might have reached a different, albeit finely balanced,
conclusion had it not been for the Opinion of Judge Kessler in the Farhi Saeed
Bin Mohammed case:
In the UK, the control principle was not a principle of law but a
convenient description of the understanding on which intelligence was
shared confidentially between countries. The principle was not absolute.
Although in the context of public safety it was axiomatic that the Foreign
Secretarys views were entitled to the utmost respect, they could not
command the unquestioning acquiescence of the court (per Lord Judge LCJ).
While as a matter of principle, decisions in connection with national security
are primarily entrusted to the executive, ultimately to Government Ministers,
and not to the judiciary the ultimate decision whether to include redacted
paragraphs was for judicial, not executive, determination (per Lord
Neuberger). Conway v Rimmer [1968] AC 910 established that the question
whether a document should be exempted from disclosure in legal
proceedings on public interest grounds should ultimately be decided by the
court. The question whether a passage in a judgment should not be made
available to the public as being contrary to the public interest was a fortiori
a matter for the court. There was a strong presumption that a judgment
should be fully available for all to see though even this fundamental principle
must occasionally yield to other factors, including the need to protect the
public interest. After the publication of Judge Kesslers Opinion, the Foreign
Secretarys case for redaction had fallen away and there was no longer any
basis for maintaining the case for excision of the redacted paragraphs. The
arguments in favour of publication were compelling:
(i) Publication of the redacted paragraphs would not reveal information of
interest or provide material of value to a terrorist.
(ii) The redacted paragraphs did not contain anything which could not be
read or inferred from the existing open judgments. The issue was, in fact,
the control principle rather than the principle of confidentiality.
(iii) Any review by the US of its intelligence sharing policy would presumably
reflect that the Foreign Secretary had done all in his power to prevent
publication.
(iv) Bs allegations of torture had been publicly confirmed by the judicial
processes in the US itself.
(v) Per Lord Judge, it was hard to conceive of a clearer case for disapplication
of the control principle than a judgment in which its application would
partially conceal the full reasons why the court concluded that those for
whom the executive in this country is ultimately responsible were
involved in or facilitated wrongdoing in the context of the abhorrent
practice of torture.
Comment
The issue whether or not the redacted paragraphs should be published has
required us to address fundamental questions about the relationship
between the executive and the judiciary in the context of national security in
an age of terrorism and the interests of open justice in a democratic society.
(Lord Judge LCJ)
So, once again the courts have been called upon to determine just how
far the government can go in determining national security interests, having
previously given rulings against the government in a number of landmark
decisions. See, for example, A(FC) v Secretary of State for the Home
Department [2004] UKHL 56 where the House of Lords quashed a derogation
order and issued a declaration under section 4 of the Human Rights Act that
powers in the Anti-Terrorism, Crime and Security Act 2001 enabling indefinite
detention of non-nationals without charge were incompatible with Articles 5
and 14 ECHR. In A(FC) No 2 [2005] UKHL 71, the House of Lords declared that
evidence obtained as a result of torture the fruit of the poisoned tree was
not admissible as evidence before the Special Immigration Appeals
Commission even if obtained outside the UK jurisdiction and without the
complicity of the UK authorities. National security, it seems, is no longer the
sole preserve of the executive arm of government.
The absolute prohibition of a state practice of torture is a well established
principle of both international and UK national law. The prohibition has the
status of ius cogens in international law ie it is an ummutable principle of
international law. It is also an international crime. There can be no
justification whatsoever of a state practice of torture, even in the context of
the war against terrorism. If the choice is between the survival of a state
built upon the torture chamber and the state succumbing to terrorism, then
the state must give way [see Ireland v United Kingdom (1980) 2 EHRR 25].
The case is very much a demonstration of the adherence to and
application of the common law fundamental principles of open justice,
democratic accountability and the rule of law and the courts refusal to adopt
the mere ipse dixit of the minister in his assertion that publication of the
redacted paragraphs would threaten the national security interests of the
United Kingdom.
Sir Anthony May:
The issue on this appeal seems to me to boil down to a stark clash of
two principles. The first principle is that justice should be open, and that
open justice generally requires the court to publish its reasons for a
decision ... The second principle is that material should not generally be
published, if its publication would give rise to a serious risk of damaging
consequences to national security ...
In this clash of principles, open justice won the day.
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Case Notes
by David Stott, Law Lecturer and Legal
Educational Consultant
R (on the application of Purdy) v Director of Public
Prosecutions HL
[2009] UKHL 45
Whether refusal of DPP to provide policy statement on
prosecution of those who assisted suicide violated the right
to respect for private life under Article 8 ECHR of terminally
ill persons who wished to travel abroad to commit suicide.
Facts
The appellant, P, suffered from multiple sclerosis. She wished her
husband to be able to take her abroad to a jurisdiction such as
Switzerland or Belgium which allowed assisted suicide. Such
action would render Ps husband liable to prosecution under
section 2(1) of the Suicide Act 1961 for aiding and abetting the
suicide of another, an offence punishable with up to 14 years
imprisonment. Section 2(1) does not provide for any exceptions.
Such a prosecution would, under section 2(4) of the 1961 Act,
require the consent of the DPP. The test to be applied was that
contained in the Crown Prosecution Service Code ie whether
there was enough evidence to sustain a prosecution and whether
it was in the public interest to prosecute. P applied for judicial
review of the DPPs refusal to disclose his policy not to prosecute,
if such a policy existed, or, alternatively, his failure to promulgate
a policy setting out the criteria for the exercise of his discretion in
deciding whether to prosecute under section 2(4), in particular in
cases where a relative or friend assisted a person to travel abroad
for the purposes of assisted suicide. P argued that, in the absence
of such a policy statement, she was unable to make an informed
decision about whether to seek such assistance from her
husband. She argued that the DPPs refusal violated her right to a
private life under Article 8(1) of the European Convention on
Human Rights 1950 and that the restriction on her right was not
in accordance with the law under Article 8(2) of the
Convention in the absence of a public statement of policy
identifying the criteria to be taken into account by the DPP in
exercising his discretion to prosecute. P argued that, in the
absence of such a policy, the law lacked sufficient clarity. The
Divisional Court (Scott Baker and Aikens LJJ) concluded [2008]
EWHC 2565 (Admin) that it was bound by the decision of the
House of Lords in R (on the application of Pretty) v DPP (2001)
UKHL 61 where the House had concluded that Diane Prettys
rights under Article 8(1) were not engaged because the right to a
private life related to the manner in which a person conducted
her/his life and not the manner in which s/he departed from it.
The Divisional Court was of the view that the European Court of
Human Rights in Pretty v UK (2002) 35 EHRR 1 had not
definitively concluded that Article 8(1) was engaged and so there
was no clear conflict on that point between the European Court
and the House of Lords. Ps appeal to the Court of Appeal [2009]
EWCA Civ 92 was dismissed. The Court of Appeal held that the
European Court of Human Rights in Pretty v UK had, in fact, held
that Article 8(1) was engaged. There was, therefore, a conflict on
this point between the European Court of Human Rights and the
House of Lords in R (on the application of Pretty) v DPP. The Court
of Appeal considered itself bound, however, by the decision of
the House of Lords in preference to the later ruling of the
European Court. In any case, the absence of a crime-specific
policy relating to assisted suicide did not make the operation and
effect of section 2(1) of the 1961 Act unlawful nor mean that it
was not in accordance with the law under Article 8(2). P could
take legal advice on the likelihood of her husband being
prosecuted and that legal advice would be informed by general
guidance and examples of previous decisions by the DPP. Hence
the legal position was sufficiently certain. On appeal to the House
of Lords:
Held, allowing the appeal, that the DPP should be required
to promulgate an offence-specific policy identifying the facts and
circumstances which he would take into account in deciding, in a
case such as that which the appellants exemplified, whether or
not to consent to a prosecution under section 2(1) of the 1961
Act. The House of Lords held that Article 8(1) of the European
Convention on Human Rights was engaged. The House chose to
depart from its previous decision in R (on the application of
Pretty) v DPP in favour of the decision of the European Court of
Human Rights in Pretty v U.K. Further, the restriction on the right
protected by Article 8(1) was not in accordance with the law as
required by Article 8(2) because the law was not sufficiently clear.
The Crown Prosecution Service Code would normally provide
sufficient guidance as to how decisions should or were likely to
be taken whether or not, in a given case, it would be in the public
interest to prosecute. But this could not be said of cases where
the offence was aiding and abetting the suicide of a person who
was terminally ill or severely and incurably disabled, who wished
to be helped to travel to a country where assisted suicide was
lawful. In such cases, the Code offered almost no guidance at all.
This was demonstrated by the decision of the DPP not to
prosecute the parents and family friend of Daniel James (whose
suicide abroad had been assisted after he was seriously injured in
rugby practice) which demonstrated that factors not listed in the
Code had to be introduced to cater for these difficult decisions.
A jurisdictional argument considered by the House of Lords
was whether acts taken in the UK to assist a suicide which took
place outside the UK were, in fact, a violation of section 2(1) of
the 1961 Act or whether that section only applied where the act
of suicide itself was completed in the UK. The House left this
particular question open, basing its decision on the premise that
there was a substantial risk that acts to assist the appellant to
travel to Switzerland would give rise to prosecution in the UK.
Comment
The legal impact of the decision of the House of Lords in Purdy is
limited. The decision does not in any way effect a change in the
law to decriminalise assisted suicide. The House made it clear that
such a change was a matter for Parliament. Nor does the decision
affect the central argument in the Pretty case. Ms Pretty did not
advance an argument that the interference with her Article 8(1)
rights was not in accordance with the law under Article 8(2).
Her central argument was that the blanket ban on assisted
suicide was disproportionate to the legitimate objective of
protecting vulnerable people and she had sought an advance
undertaking from the DPP that her husband would not be
prosecuted if he assisted her suicide (wherever, whenever and in
whatever manner she chose to end her life). The legal impact of
the Purdy decision is no more than to require the DPP to issue a
policy statement identifying the factors that will be taken into
account in deciding whether a person who has assisted the
suicide of another by enabling them to travel abroad to commit
suicide should be prosecuted.
To achieve this rather limited victory, Ms Purdy had to go all
the way to the House of Lords as the Court of Appeal considered
itself bound by the previous decision of the House of Lords in R
(on the application of Pretty) v DPP that the applicants Article 8(1)
rights were not violated in preference to the later ruling of the
European Court of Human Rights in Pretty v UK that Article 8(1)
rights had been violated. The doctrine of precedent and the
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certainty which it secured was paramount and only the House of
Lords could choose not to follow one of its own decisions under
the authority of the 1966 Practice Statement ([1966] 1 WLR
1234). Whilst one can fully appreciate the advantages of
precedent in securing a level of certainty in decision-making, one
might question whether such a doctrine should prevail over
human rights being protected at the earliest opportunity and ask
whether a lower court should be allowed not to follow an
otherwise binding precedent when it is clear and unambiguous
that the earlier national decision has been contradicted by a later
decision of the European Court of Human Rights. This might
seem to be form prevailing over matter. One might also question
whether a lower court which refuses to prefer a later (clear and
unambiguous) decision of the European Court is failing to comply
with its duty as a public body under section 6 of the Human
Rights Act 1998 to act in a Convention compatible way. For
further comment see the authors comment on the Court of
Appeal decision in the summer issue of SLR.
R (on the application of G and others) v
Nottinghamshire Healthcare NHS Trust and the
Secretary of State for Health CA
[2009] EWCA Civ 795
Whether ban on smoking at Rampton high security
psychiatric hospital violated Article 8(1) ECHR Whether
ban justified under Article 8(2) Whether discrimination
under Article 14 Common law principle of equality.
Facts
The appellants, former or current detainees at Rampton secure
psychiatric hospital, appealed from a decision of the Divisional
Court [2008] EWHC 1096 (Admin) (Pill LJ and Silber J) refusing an
application for judicial review of a smoking ban at the hospital.
The appellants challenged (i) regulation 10 of the Smoke-Free
(Exemption and Vehicles) Regulations 2007 made under section
79 of the Health Act 2006 in so far as, in the case of mental
health units, it introduced only a temporary exemption, until July
2008, rather than a permanent exemption from the 2006 Act
banning smoking in places used by the public. The appellants
complaint focussed on the difference between the exemptions
granted to prisons under regulation 5 which were unlimited in
time and the temporary exemptions granted to mental health
units under regulation 10; and (ii) the Nottinghamshire
Healthcare NHS Trusts policy banning smoking at Rampton with
effect from March 31, 2007. The policy was that, save where
individual exceptions were permitted on clinical grounds,
smoking was prohibited for both staff and patients throughout
the Trust premises from April 1, 2007. Unlike the 2006 Act, the
policy applied both inside and outside its buildings. The policy
contemplated some exemption for long-stay patients in an acute
psychiatric state or terminally ill patients on a case-by-case basis
and the policy should allow for flexibility in exceptional
circumstances. No exemption had, in fact, been granted as at the
time of the hearing before the Divisional Court (May 2008). The
basis for the ban on smoking inside was that the Exemption
Regulations banned smoking inside. The basis for the ban on
smoking outside was security reasons. The average stay at
Rampton was 8 years and, in some cases, much longer. The
appellants argued that the smoking ban interfered with their
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right to respect for a private and family life, home and
correspondence under Article 8(1) ECHR, either standing alone or
in conjunction with the non-discrimination provisions of Article
14, and that the ban was not justified by reference to Article 8(2).
The Trust accepted that Rampton was the appellants home. The
appellants also argued that the Exemption Regulations were
irrational and contrary to the common law principle of equality
since they prohibited smoking in mental health units but
permitted it in other residential public spaces such as prisons and
care homes.
Held, dismissing the appeal (Lord Clarke of Stone-cum-Ebony
MR and Moses LJ, Keene LJ dissenting), that (i) Article 8(1) did not
protect everything that a person might want to do in the privacy
of their own home. Not only the nature of the activity but also
the nature of the place in which the activity was carried out had
to be considered. Rampton was not the same as a private home.
Supervision was intense for safety and security. The degree to
which a person might expect freedom to do as s/he pleases in
personal and private activity would vary according to the nature
of the accommodation. Since the nature of the place in which the
appellants sought to smoke told against any right protected by
Article 8, they had to rely to a greater extent on the importance
of the activity they sought to protect the activitys proximity to
his personal identity or physical or moral integrity. Smoking was
not sufficiently close to the integrity of a persons identity to
qualify as an activity meriting the protection of Article 8; (ii) if the
right to smoke did not come within the ambit or scope of Article
8 standing alone, it could not come within the ambit or scope of
Article 8 for the purposes of Article 14; (iii) even if, contrary to the
finding of the court, Article 8(1) was engaged, the smoking ban
was justified under Article 8(2) ie it was in accordance with the
law and necessary in a democratic society for the protection
of health. The policy was clearly in accordance with the law.
When it was introduced there was no law preventing the Trust
from banning smoking on its property. Both the policy and
regulation 10 of the Exemption Regulations were necessary as
being proportionate to the legitimate aim of protecting the
health of both patients, including the appellants, and others.
Further, the Exemption Regulations would not have been
discriminatory under Article 14. The Secretary of State had
successfully justified the difference of treatment between mental
health units and prisons, care homes and hospices; (iv) the
Secretary of State was not in breach of any common law principle
of equality. The distinction between different groups ie those in
mental health units and those in, for example, prison, was
rationally based.
Keene LJ dissented in part from the majority, holding that
regulation 10 of the Exemption Regulations fell within Article 8(1)
and was not justified under Article 8(2). For many people,
smoking formed an important part of their personal lives and
possessed a value which reached a level which qualified for
protection under Article 8 as part of their personal autonomy. The
factual consequence of the absence of any longer-term
exemption was that certain patients in secure mental health units
would face a complete ban on smoking because they would not
be allowed to go outside for security reasons. The regulation
went beyond what was necessary to secure the legitimate
objective, the principal objective being to protect people against
the effects of other people smoking in their presence. Neither the
Scottish Executive nor the Welsh Assembly had found it necessary
to impose a total ban on smoking in the interiors of mental health
units. Regulation 10 also breached Article 14 in the differential
treatment of criminal offenders without serious mental health
problems and those with such problems. Keene LJ agreed with
the majority on the legality of the policy of the Trust. It had no
power to allow smoking inside Rampton because of regulation
10. Disallowing smoking outside the building was justified on the
grounds of the extent of staff supervision required for dangerous
patients and so was proportionate.
Comment
Ones view of the correctness of this decision might well be
influenced by ones attitude to smoking and smokers who are
arguably becoming/ have become the new social pariahs. The
dislike of this formerly acceptable social practice by now a large
section of society might be regarded as an interesting example of
the law, informed by medical research (and the cost to the NHS),
leading general public opinion. The once highly contentious
legislation prohibiting smoking in public places, subject to certain
exceptions, is now accepted as a facet of everyday life. However,
although majority opinion may now abhor the practice, human
rights are concerned very much with protecting the rights of
minorities in society, even though the practice of the minority is
abhorrent to the majority.
The extent of the right to a private life/ home within Article
8(1) can be difficult to define. In the absence of legislation
outlawing smoking per se, engaging in the practice within ones
own home is clearly prima facie lawful. Accepting that Rampton
was a home for the time being of inmates, at least for those who
were long-term, the question becomes to what extent limitations
can be imposed because of the nature of the place constituting a
home. If Article 8(1) is engaged (and the majority view was
that it was not) the key question becomes whether the restriction
on the right is necessary in a democratic society ie does it meet
a pressing social need and is it proportionate to the legitimate
aim being pursued? Is the restriction imposed the least invasive
method of achieving the objective? If the objective is to protect
the individual from self -harm, then arguably this justifies greater
restrictions than if the objective is simply to protect others from
the dangers of passive smoking. A difficulty with arguing
protection from self-harm in the instant case might be that
Rampton is concerned with the mental, rather than the physical,
wellbeing of its patients.
Generally, blanket bans are difficult, but not impossible, to
justify (compare Lustig-Prean v United Kingdom (2001) 31 EHRR
23 where the European Court of Human Rights declared a
blanket policy ban on homosexuals in the armed forces to be a
disproportionate violation of the right to private life [sexual
identity/ personal autonomy] under Article 8(2) with Pretty v
United Kingdom (2002) 35 EHRR 1 where a statutory blanket ban
on assisting suicide was justified and within the states margin of
appreciation).
Keene LJ concluded that the ban was disproportionate, one
of his reasons being that neither the Scottish Executive nor the
Welsh Assembly had imposed a total ban on smoking in mental
health units. While it might be difficult to justify differences of
policy affecting rights within the same jurisdiction ie within the
UK [see Dudgeon v United Kingdom (1983) 5 EHRR 573 where
the European Court of Human Rights found that criminalisation
of homosexuality in Northern Ireland when the practice had been
decriminalised on the mainland for males aged 21 and above
could not be justified] the very essence of devolution is to enable
the respective regions to adopt alternative policies in given areas
of decision-making.
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Case Notes
R (on the application of Purdy) v Director of Public
Prosecutions CA
[2009] EWCA Civ 92 (February 19, 2009)
Whether refusal of DPP to provide policy statement on
prosecution of persons who assisted suicide violated right of
person who wished to commit suicide to respect for private life
under Article 8 ECHR
Facts
The applicant, P, suffered from multiple sclerosis. She wished her
husband to be able to take her abroad to a jurisdiction such as
Switzerland or Belgium which allowed assisted suicide. Such action
would render Ps husband liable to prosecution under section 2(1) of
the Suicide Act 1961 for aiding and abetting the suicide of another,
an offence punishable with up to 14 years imprisonment. Such a
prosecution would, under section 2(4) of the 1961 Act, require the
consent of the DPP. P applied for judicial review of the DPPs refusal to
disclose his policy not to prosecute, if such a policy existed, or,
alternatively, his failure to promulgate a policy setting out the criteria
for the exercise of his discretion in deciding whether to prosecute
under section 2(4), in particular in cases where a relative or friend
assisted the person to travel abroad for the purposes of assisted
suicide. P argued that the DPPs refusal violated her right to a private
life under Article 8(1) of the European Convention on Human Rights
and that the restriction on her rights was not in accordance with the
law under Article 8(2) of the Convention in the absence of a public
statement of policy identifying the criteria to be taken into account by
the DPP in exercising his discretion to prosecute. It was argued that, in
the absence of such a policy, the law lacked sufficient clarity. The
Divisional Court (Scott Baker and Aikens LJJ) concluded that it was
bound by the decision of the House of Lords in R (on the application
of Pretty) v DPP (2001) UKHL 61 where the House had concluded that
Diane Prettys rights under Article 8(1) were not engaged because the
right to private life related to the manner in which a person conducts
her/his life and not the manner in which s/he departs from it. The
Divisional Court was of the view that the European Court of Human
Rights in Pretty v UK (2002)35 EHRR 1 had not definitively concluded
that Article 8(1) was engaged and so there was no clear conflict on
that point between the European Court and the House of Lords. On
appeal to the Court of Appeal:
Held, dismissing the appeal, that:
(i) the European Court of Human Rights in Pretty v UK had, in fact,
held that Article 8(1) was engaged. There was, therefore, a
conflict on this point between the European Court of Human
Rights and the House of Lords in R (on the application of Pretty) v
DPP. The Court of Appeal was, however, bound to follow the
decision of the House of Lords in preference to the later ruling of
the European Court. This was not one of those very exceptional
cases where the House of Lords in D v East Berkshire Community
NHS Trust [2005] 2 AC 373 had accepted that the Court of
Appeal could prefer a decision of the European Court over one of
the House of Lords;
(ii) there was nothing in decisions of the House of Lords subsequent
to R (on the application of Pretty) v DPP to indicate that the lower
courts should now be free to no longer consider themselves
bound by that judgment of the House of Lords;
(iii) the absence of a crime-specific policy relating to assisted suicide
did not make the operation and effect of section 2(1) of the 1961
Act unlawful nor mean that it was not in accordance with the
law under Article 8(2). P could take legal advice on the likelihood
of her husband being prosecuted and that legal advice would be
informed by general guidance and examples of previous decisions
by the DPP. Further, if a prosecution by the DPP was considered by
the court to be an abuse of process, the court would dismiss the
prosecution or, if a defendant were to be convicted, the court
would exercise its sentencing powers accordingly. Thus, the court
itself exercised a protective role to prevent arbitrary or
unprincipled exercise of his responsibilities by the DPP, although
the occasions when it was necessary for the court to exercise such
authority were remote virtually to the point of extinction.
Comment
The area of assisted suicide is one in which the state is likely to be
allowed a significant margin of appreciation. This is particularly likely
to be so when, as at present, few states which are party to the ECHR
permit assisted suicide (Switzerland, Belgium, the Netherlands and
Luxembourg allow assisted suicide). This is, arguably, a decision which
is more properly left to Parliament (and Parliament has had a number
of opportunities in recent years to debate the matter).
In the Pretty case, Diane Pretty had directly argued that her rights
under Articles 2 (the right to life), 3 (the prohibition of torture or
inhuman or degrading treatment), 8 (respect for private life), 9
(freedom of thought, conscience and religion) and 14 (discrimination)
had been violated by the DPPs refusal to give an undertaking that he
would not consent to a prosecution of her husband. Both the House
of Lords in the national application for judicial review and the
European Court of Human Rights had rejected Ms Prettys claim based
on these direct violations, variously on the grounds that either the
rights protected had not been violated or that the respective violations
were necessary in a democratic society ie met a pressing social need
and were proportionate to a legitimate public interest objective. Ms
Purdys challenge engaged an alternative argument that the DPPs
refusal to issue a policy statement on prosecution/ non-prosecution
rendered the law insufficiently certain, adequate certainty being one
of the requirements to establish that a restriction on a right is in
accordance with the law under Article 8(2) ECHR thus far, however,
with no greater success.
The case also raises the relationship between a decision of the
House of Lords and a later decision of the European Court of Human
Rights. Should lower courts abide by the national doctrine of
precedent and apply the decision of the House of Lords in preference
to the later European Court decision? The Court of Appeal confirmed
that, except in very exceptional circumstances, it would consider itself
bound by a precedent of the House of Lords (see Kay v Lambeth LBC
[2006] UKHL 10 and R (RJM) v Secretary of State for Work and
Pensions [2008] UKHL 63). It would not be sufficient that a case
before the European Court of Human Rights involved the same
parties. Hence, the Court of Appeal applied the ruling of the House
of Lords in Pretty that Article 8(1) was not engaged (because the right
to private life related to the manner in which a person conducts
her/his life and not the manner in which s/he departs from it) in
preference to the later ruling of the European Court which, in the
opinion of the Court of Appeal, determined that Article 8(1) was
engaged (though the restriction was justified under Article 8(2)). It
would appear that such an approach is reconcilable with section 2 of
the Human Rights Act 1998, which imposes an obligation on national
courts and tribunals only to take into account judgments of the
European Court of Human Rights. It is less easy to reconcile with
section 6(1), which imposes an obligation on public authorities (which
includes the courts) to act in a Convention compatible way (unless
statute prevents the public authority from so doing, in which case the
statute will have to be challenged by an application for a declaration
of incompatibility under section 4 HRA). The Court of Appeal justified
its preference for precedent on the basis of certainty, the concept of
the national margin of appreciation, and that decisions of the House
of Lords bound them whereas decisions of the European Court of
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Human Rights did not. This approach will, however, compel an
applicant to take their case to the House of Lords in order for the
House of Lords to utilise the 1966 Practice Statement ([1966] 1 WLR
1234) and depart from its own previous decision. A leap-frog appeal
might be used in such circumstances. Such an approach obviously
engages the applicant in potential considerable expense and further
delay. A more radical approach would be to say that the obligation
imposed on the courts as public authorities by section 6 HRA has the
effect of relaxing the doctrine of precedent in those cases where there
is a clear and unquestionable conflict between a binding precedent in
national law and a later decision of the European Court of Human
Rights. It might be argued that such a relaxation of the doctrine of
precedent has been authorised by Parliament itself through the HRA.
It might also be argued that this alternative approach is more
consistent with the dynamic nature of human rights protection under
the ECHR (which the European Court of Human Rights agreed in Tyrer
v UK (1978) 2 EHRR 1 was a living instrument which ... must be
interpreted in the light of present day conditions) and is the best
provision of an effective remedy in national law under Article 13 of
the Convention. Should protection from human rights violations
potentially be delayed by stringent adherence to precedent? The
adoption of such a radical approach would not, however, have
assisted Ms Purdy in the instant case in the absence of a ruling of the
European Court of Human Rights supporting assisted suicide.
S and Marper v United KingdomECtHR
Applications 30562/04 and 30566/04 (December 4, 2008)
Whether retention of fingerprints and DNA profiles of persons
under investigation by the police violated Article 8 ECHR when
those persons were subsequently acquitted or the investigation
was discontinued
Facts
The first applicant, S, was arrested at the age of 11 and charged with
attempted robbery. He was acquitted. The second applicant, M, was
arrested and charged with harassment. The case was subsequently
discontinued. Fingerprints and DNA samples were taken from both
applicants pursuant to section 64(1A) of the Police and Criminal
Evidence Act 1984 for purposes related to the prevention or
detection of crime, the investigation of an offence, or the conduct of
a prosecution. Both requested that their fingerprints and DNA
samples be destroyed but the police refused. The applicants applied
for judicial review of the police decision. The Administrative Court
rejected the application [see R (on the application of S) v Chief
Constable of South Yorkshire [2002] EWHC 478 (Admin)]. The Court
of Appeal dismissed an appeal [2003] EWCA Civ 1275 and an appeal
from that decision was dismissed by the House of Lords [2004] UKHL
39. It was considered that the mere retention of fingerprints and DNA
samples did not constitute an interference with respect for private life
(Baroness Hale dissenting on this point) and, if it did, then the
interference was provided for by law and proportionate to the
legitimate objective of the prevention of crime as required by Article
8(2) of the European Convention on Human Rights. On application to
the European Court of Human Rights:
Held, allowing the application, that:
(i) retention of the fingerprints, cellular samples and DNA profiles of
persons suspected but not convicted of offences constituted an
interference with the right to respect for private life under Article
8(1) ECHR;
(ii) in accordance with the law in Article 8(2) required the
challenged measure both to have some basis in domestic law and
to be compatible with the rule of law. The law must be adequately
accessible and foreseeable ie formulated with sufficient precision
to enable the individual, if need be with appropriate legal advice,
to regulate his conduct. Domestic law must afford adequate
legal protection against arbitrariness and accordingly indicate with
sufficient clarity the scope of discretion conferred on the
competent authorities and the manner of its exercise. The Court
agreed with the UK government that the retention of fingerprints
and DNA records had a clear basis in domestic law. The Court
agreed with the applicants, however, that at least one of the
purposes for retention purposes related to the prevention or
detection of crime was worded in general terms and gave rise
to extensive interpretation. As these questions were closely related
to whether the interference was necessary in a democratic
society as required by Article 8(2), however, it was not necessary
to decide whether section 64 PACE met the quality of law
requirements within the meaning of in accordance with the
law;
(iii) the retention of fingerprints and DNA profiles pursued the
legitimate aim of the prevention of crime within Art 8(2);
(iv) the blanket and indiscriminate nature of the powers of retention
of fingerprints, cellular samples and DNA profiles of persons
suspected but not convicted of offences failed to strike a fair
balance between the competing public and private interests and
the state had overstepped its margin of appreciation. The
retention constituted a disproportionate interference with the
applicants right to respect for private life and could not be
regarded as necessary in a democratic society.
Comment
The case raises, in particular, the issue of how far the state can go in
invading private rights in the name of the prevention of crime. Article
8(2) ECHR allows the state to restrict rights where necessary in a
democratic society. It is well established in European Convention
case law (see eg Sunday Times v UK (1979) 2 EHRR 245) that, in order
to meet the requirement of necessity, a restriction on a right must
meet a pressing social need and be proportionate to a legitimate
public interest objective. Only the least invasion of the right required
to meet the legitimate objective will be proportionate. As at
September 30, 2005 the National DNA database held 181,000
profiles from individuals who would have been entitled to have those
profiles destroyed before the amendments to section 64 PACE
effected by section 82 of the Criminal Justice and Police Act 2001.
8,251 of those profiles were subsequently linked with crime-scene
stains which involved 13,079 offences, including 109 murders, 55
attempted murders, 116 rapes, 67 sexual offences, 105 aggravated
burglaries and 126 offences of the supply of controlled drugs. Lord
Steyn regarded the interference with respect to private life, if indeed
any such interference existed, as very modest indeed. The European
Court of Human Rights, by comparison, was struck by the blanket
and indiscriminate nature of the power of retention, which operated
irrespective of the nature or gravity of the offence with which the
individual was originally suspected or of the age of the suspect. The
Court accepted that a margin of appreciation was to be left to the
national authorities and, where there was no consensus within the
Member States of the Council of Europe, the margin may be wider.
However, most of the Contracting States allowed samples to be taken
only from individuals suspected of offences of a certain minimum
gravity. The position of Scotland was of particular significance, where
the DNA of unconvicted persons was retained only in the case of
adults charged with violent or sexual offences and then for only three
years, subject to extension for a further two years. The strong
consensus among Contracting States on setting limits on the
retention and use of such data narrowed the UKs margin of
appreciation. The Home Secretary, Jacqui Smith, has since undertaken
to publish a White Paper on the issue although it was reported in The
Guardian on February 27 2009 that the government was planning
to get around the ruling of the European Court and had no plans
to destroy DNA samples. The Guardian also reported that since the
database was founded in 1995, it had become the worlds largest
with 5 million entries, of which more than a million were children and
875,000 were innocent people.
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Case Notes
R (on the application of Bancoult) v Secretary of
State for Foreign and Commonwealth Affairs HL
[2008] UKHL 61
Whether exercise of prerogative power was justiciable
Whether exercise of power to prevent inhabitants returning
to their homeland was unreasonable Whether statement
made by the Secretary of State for Foreign and
Commonwealth Affairs gave rise to a substantive legitimate
expectation
Facts
The Secretary of State appealed against a decision of the Court of
Appeal (Sir Anthony Clarke MR and Waller and Sedley LJJ) that
section 9 of the British Indian Ocean Territory (Constitution) Order
2004 and the British Indian Ocean Territory (Immigration) Order,
which had been made by prerogative Order in Council, were
invalid ([2008] QB 365).
The British Indian Ocean Territory (BIOT) consisted of the
Chagos Islands, the largest being Diego Garcia. The islands became
of strategic significance to the US in the 1960s in the aftermath of
the Cuban missile crisis and the early stages of the Vietnam War. In
1965 the UK government made the British Indian Ocean Territory
Order which constituted the islands a separate colony and created
the office of Commissioner with power to make laws for the
peace, order and good government of the Territory. In 1966 the
UK government agreed in principle to make BIOT available to the
US for defence purposes for at least 50 years and subsequently
agreed to the establishment of a US military base on Diego Garcia.
The Commissioner, using his powers under the BIOT Order, made
the Immigration Ordinance 1971, section 4 of which removed all
rights of abode on the islands. Between 1968 and 1971 the UK
government secured the removal of the inhabitants of Diego
Garcia, mostly to Mauritius and the Seychelles. In 1982 it agreed to
pay 4 million into a trust fund for the Chagossians, most of whom
renounced all claims arising out of their removal from the islands.
In 1998 the applicant, B., applied for judicial review of the 1971
Immigration Ordinance. He sought a declaration that it was void
because it purported to banish British Dependent Territory citizens
from the islands and a declaration that the policy which prevented
him from returning to and residing in the islands was unlawful. The
governments reaction was to commission an independent
feasibility study as to whether it would be possible to resettle some
of the Chagossians on the outer island of Peros Banjos and the
Saloman Islands. The Divisional Court (Laws LJ and Gibbs J) allowed
the application (R (Bancoult) v Secretary of State for Foreign and
Commonwealth Affairs (No. 1) [2001] QB 1067) on the basis that
the power to legislate for the peace, order and good
government of the territory did not include a power to expel all
the inhabitants. Section 4 of the Immigration Order was quashed.
The Foreign Secretary (Robin Cook) issued a press release to the
effect that the government would not appeal the ruling. The
statement referred to the feasibility study and undertook to put in
place a new Immigration Ordinance allowing the Chagossians to
return to the outer islands. The Commissioner immediately revoked
the 1971 Ordinance and made the Immigration Ordinance 2000
allowing the return of the Chagossians as promised. This, however,
made little practical difference as their return would require an
investment in infrastructure and employment which they could not
themselves provide. When the feasibility study report was
produced in 2002 it concluded that short term resettlement might
be feasible, but in the long term the effect of global warming
requiring sea defences would make the cost of inhabitation
prohibitive. The government decided that it would not support
resettlement of the islands. The Foreign Office was also advised of
a serious possibility of landings in the islands by protesters. The
government restored full immigration control and made the
Constitution Order which revoked the BIOT Order and granted a
new constitution including section 9 removing any rights of entry
or abode in the Territory. A second Order in Council (the
Immigration Order) was also made dealing with the details of
immigration control. B then applied for judicial review to quash
section 9 of the Constitution Order and the Immigration Order.
The Divisional Court concluded that the Orders were irrational
because their rationality had to be judged by the interests of BIOT
ie the people who lived or had lived there, whereas the Orders had
been made in the interests of the UK and the US. In the Court of
Appeal, Sedley LJ held that the removal or exclusion of the
population for reasons unconnected with their collective
wellbeing could not be a legitimate purpose of the power of
colonial governance exercisable by Her Majesty in Council. Sir
Anthony Clarke MR agreed that the Orders were an abuse of
power because they did not have proper regard for the interests of
the Chagossians. All members of the Court of Appeal agreed that
the Foreign Secretarys press statement and the Immigration Order
2000 constituted promises which gave rise to a legitimate
expectation that, in the absence of a relevant change of
circumstances (which there had not been), the Chagossians rights
of entry and abode in the islands would not be revoked. On appeal
to the House of Lords the Secretary of State argued that the courts
had no power to review the validity of an Order in Council
legislating for a colony, either because it was primary legislation or
because review was excluded by the Colonial Laws Validity Act
1865. B argued that the right of abode was so sacred and
fundamental that the Crown could not in any circumstances have
power to remove it and only an Act of Parliament could do so. It
was common ground that as BIOT was originally ceded to the
Crown, HM in Council had plenary power to legislate for the
Territory.
Held, allowing the appeal (Lords Bingham and Mance dissenting)
that:
(i) A prerogative Order in Council was primary legislation in the
sense that the legislative power of the Crown was original and
not subordinate. It was also classified as primary legislation for
the purposes of the Human Rights Act 1998 [section
21(1)(f)(i)]. But it did not share all the characteristics of primary
legislation. The principle of Parliamentary Sovereignty, as
developed by the courts over the past 350 years, was founded
upon the unique authority Parliament derived from its
representative character. An exercise of the prerogative lacked
this quality. The decision of the House of Lords in Council of
Civil Service Unions v Minister for the Civil Service [1985] AC
374 removed any assumption that the exercise of prerogative
by the executive was immune from judicial review. There was
no reason why prerogative legislation should not be subject to
review on ordinary principles of legality, rationality and
procedural impropriety. There was no reason to distinguish an
executive decision made pursuant to powers conferred by
prerogative order (as in CCSU) from the validity of a
prerogative order itself.
(ii) The Colonial Laws Validity Act did not apply as it was intended
to deal with the validity of colonial laws (whether made by the
local legislature or by Her Majesty in Council) from the
perspective of their forming part of the local system of laws
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administered by the local courts. Section 3 made it clear that in
considering the validity of such laws, the courts were not to
concern themselves with the law of England. The instant
proceedings were concerned with the validity of the Order, not
simply as part of the local law of BIOT but as imperial legislation
made by HM in Council in the interests of the undivided realm
of the UK and its non-self-governing territories. Parliament in
1865 would not have contemplated the possibility of an Order
in Council legislating for a colony as open to judicial review. It
was concerned with the law applicable by colonial courts, not
English courts. From the point of view of the jurisdiction of the
UK courts to review the exercise of prerogative powers by HM
in Council, the Constitution Order was not a colonial law,
although it might have been from the point of view of a BIOT
court applying BIOT law.
(iii) The proposition that the Crown did not have power to remove
an islanders right of abode in the Territory was too extreme. At
common law, a subject of the Crown had the right to enter and
remain in the UK (R v Bhagwan [1972] AC 60). That right could
not be removed by an exercise of the prerogative. In a ceded
colony, however, the Crown had plenary legislative authority
and could make or unmake the law of the land and section 9
of the Constitution Order was clear and unambiguous. There
was no basis for saying that the right of abode was so
fundamental that the legislative powers of the Crown could
not touch it.
(iv) The powers of the Crown were not limited to legislation for the
peace, order and good government of the Territory in the
sense that the law had to be for the benefit of the inhabitants.
The prerogative power of the Crown to legislate for a ceded
colony had never been limited by a requirement that it should
be for the peace, order and good government or otherwise for
the benefit of the inhabitants of the colony. That was the
traditional formula by which legislative powers were conferred
on the legislature of a colony when attaining independence.
HM exercised her powers of prerogative legislation for a non-
self-governing colony on the advice of ministers and in the
interests of her undivided realm. HM in Council was entitled to
legislate for a colony in the interests of the UK and, in the event
of a conflict with the interests of a colony, she was entitled, on
the advice of ministers, to prefer the interests of the UK.
Further, the words peace, order and good government had
never been construed as limiting the power of a legislature and
the courts would not inquire into whether legislation within the
territorial scope of the power was in fact for the peace, order
and good government or otherwise for the benefit of the
inhabitants.
(v) The main point of the appeal was the application of the
ordinary principles of judicial review. Because the Crown was
acting in the interests of the defence of the realm, diplomatic
relations with the US and the use of public funds, it might be
argued that the courts should be reluctant to interfere unless
the Order was wholly irrational. On the other hand, as the order
deprived the Chagossians of the important human right to
return to their homeland, the Order should be subjected to a
more exacting test ie the most anxious scrutiny test (see, for
example, R v Ministry of Defence, ex parte Smith [1996] QB
517). In the instant case, the Chagossians right of abode was
purely symbolic and the whole of the litigation was the
continuation of protest by other means (per Lord Hoffmann).
The action was a step in a campaign to achieve funded
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resettlement. The government was entitled to take the view
that it was not in the public interest that an unauthorised
settlement on the islands should be used as a means of exerting
pressure to compel it to fund a resettlement on the basis of a
claim under Article 73 of the UN Charter to ensure ... [the]
economic, social and educational advancement of the
residents, and send reports to the Secretary General. Policy as
to the expenditure of public resources and the security and
diplomatic interests of the Crown were peculiarly within the
competence of the executive and it was impossible, taking fully
into account the practical interests of the Chagossians, to say
that the decision to reimpose immigration control on the
islands was unreasonable or an abuse of power.
(vi) The Foreign Secretarys press announcement after the
judgment in Bancoult (1), accompanied by the revocation of
immigration controls by the 2000 Ordinance, did not meet the
requirements to establish a legitimate expectation in law. The
promise as claimed was not sufficiently clear, unambiguous
and devoid of relevant qualification. The Foreign Secretary had
accepted the decision in Bancoult and said that a new
Ordinance would be made to allow the Chagossians to return
to the outer islands. But nothing was said about how long that
would continue. This would be influenced by the outcome of
the feasibility study. If that did not result in a decision to
resettle, the situation might have to be reconsidered. No-one
contemplated resettlement unless the government, taking into
account the findings of the feasibility study, decided to support
it. If they did not, a new situation would arise. Even if the
promise could be construed in such a way that, even if there
could be no resettlement, immigration control would not be
reimposed, there was sufficient public interest justification for
the adoption of a new policy in 2004 and for this purpose it
was relevant that no-one had acted to their detriment on the
strength of the statement, that the rights withdrawn were of
no practical value, and that the decision was very much in the
macro-political field.
In the minority, Lord Bingham, agreeing with the dissent of
Lord Mance, commented that the House had been referred to no
instance in which the royal prerogative had been exercised to
exile an indigenous population from its homeland and that
authority negated the existence of such a power. He concluded
that no such prerogative power existed and that section 9 was
accordingly void. Parliament could have legislated to the effect of
section 9 but only after due debate, and it had not done so. If,
however, the prerogative power did exist, section 9 was irrational.
There was no good reason for making it. Resettlement of the
outer islands was not perceived to threaten the security of the
base at Diego Garcia. It could not be justified on the basis that it
deprived the Chagossians of a right of little practical value the
smaller the practical value, the less reason to remove it. Further,
section 9 contradicted a clear representation made by the
Secretary of State in the press release. There was no
representation that the outer islands would be resettled
irrespective of the outcome of the feasibility study or that HM
government would finance resettlement. But there was a clear
and unambiguous representation that (i) the government would
not challenge the Divisional Courts decision (ii) the government
would allow the Chagossians to return to the outer islands unless
treaty obligations later forbade it, and (iii) the government would
not persist in treating the Chagossians as it had reprehensibly
done since 1971. The government could not lawfully resile from
its representation without compelling reason, which had not
been shown.
NB the court decided that the Human Rights Act 1998 did not
apply in this case because BIOT had since 1965 been a new political
entity to which the ECHR had never been extended.
Comment
The prerogative is the residue of discretionary or arbitrary
authority which at any given time is legally left in the hands of the
Crown (AV Dicey, An Introduction to a Study of the Law of the
Constitution). The courts determine the existence and extent of a
prerogative power (see Attorney-General v De Keysers Royal Hotel
[1920] AC 408 and Burmah Oil v Lord Advocate [1965] AC 75). The
prerogative gives way to an Act of Parliament and it can no longer
be enlarged.
At one time, it was thought that an exercise of power derived
from the prerogative was immune from judicial review. That idea
was finally rejected by the House of Lords in Council of Civil Service
Unions v Minister for the Civil Service [1985] AC 374 where the
principle was definitively established that it is not the source but the
nature of the power that is determinative of judicial review. It did
not matter that the power was derived from the prerogative rather
than statute. Exercises of prerogative power would, however, often
be of such a nature as to render them non-susceptible to judicial
review. Lord Diplock suggested that it would be difficult to
challenge the exercise of a ministerial decision taken in the exercise
of the prerogative since such a decision "will generally involve the
application of government policy." The judicial process was not
adapted to dealing with competing policy considerations and the
judges "by their upbringing and experience" were ill-qualified to
perform this balancing exercise. In Lord Roskills view, such non-
justiciable prerogative powers included those relating to the
making of treaties, the defence of the realm, the prerogative of
mercy, the grant of honours, the dissolution of Parliament and the
appointment of ministers. Such exercises of power were
considered to be political decisions within the executive domain.
Care now needs to be taken with Lord Roskills list. Inroads have
been made on the non-justiciability of the treaty-making power. In
R v Secretary of State for Foreign and Commonwealth Affairs ex
parte Rees-Mogg [1994] QB 552 in a challenge to the Treaty on
European Union (the Maastricht Treaty) on the basis, inter alia, that
the treaty would transfer the prerogative power to conduct foreign
and security policy without statutory authority, the court
deliberated on the issue despite claims by counsel for the Secretary
of State that the questions raised by it were not justiciable. In the
end result, however, the court concluded that there was no transfer
of prerogative power but rather an exercise of prerogative power.
In R v Secretary of State for the Home Department ex parte Bentley
[1994] QB 349 it was held that some aspects of the prerogative of
mercy were reviewable. Even the hallowed ground of defence of
the realm has suffered at the hands of the judges since the
implementation of the Human Rights Act 1998 (see A (FC) v
Secretary of State for the Home Department [2005] 2AC 68 where
the House of Lords set aside a derogation order, made by the
executive on the basis of the existence of a state of emergency
threatening the life of the nation, as being disproportionate to the
objective). In the Bancoult case itself, Lord Hoffmann doubts
whether conduct touching the honour of the United Kingdom
such as the use of Diego Garcia for extraordinary rendition flights
or the use of a ship in the waters around Diego Garcia as a prison
in which suspects had been tortured, could be legitimated by
executive fiat.
Few prerogative powers now remain completely immune from
judicial review. The Bancoult case establishes that a prerogative
legislative power is in no different a position. The political nature of
the prerogative remained relevant, however, in the courts
assessment of whether the prerogative Order was unreasonable/
irrational in law for the purposes of judicial review.
The case also demonstrates the complexities of the concept of
substantive legitimate expectation (an expectation as to a particular
outcome) as developed by the courts in R v Secretary of State for
the Home Department, ex parte Asif Mahmood Khan [1985] 1
WLR 1337 and R v North East Devon Health Authority, ex parte
Coughlan [2001] QB 213.
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Case Notes
R (on the application of Wheeler) v Office of the
Prime Minister, Secretary of State for Foreign and
Commonwealth Affairs and Speaker of the House of
Commons
Whether enforceable legitimate expectation to hold
referendum on the Lisbon Treaty
Facts
The Treaty establishing a Constitution for Europe was signed in
October 2004. The treaty was to rescind the existing EC and EU
treaties in their entirety and replace the existing entities of the EC
and EU with a new legal entity, the European Union, with its own
attributes and institutions. The treaty required ratification by all
Member States before coming into effect. The Prime Minister, Tony
Blair, had promised a referendum on whether the UK should ratify
the treaty and the European Union Bill provided for the treaty to be
given effect in domestic law subject to the outcome of a
referendum. This commitment was also repeated in the Labour
Party manifesto for the May 2005 general election and
subsequently confirmed in Parliament and repeated on numerous
occasions in media interviews and press conferences. Following
no votes in referenda in France and the Netherlands, the
European Union instituted a period of reflection in relation to the
treaty. The European Union Bill was abandoned. When asked for an
assurance in Parliament that there would be no attempt to
introduce any part of the constitution by the back door, the Foreign
Secretary had made it clear that the commitment to a referendum
related specifically to the Constitutional Treaty. In June 2007, the
European Council agreed a mandate for a new treaty and
subsequent negotiations led to the signing of the Treaty of Lisbon
in December 2007. Prior to signing, the British government had
made it clear that there would be no referendum on the Lisbon
Treaty which was regarded as a conventional amending treaty and
not a constitutional treaty altering the basic relationship between
Europe and the Member States. No provision was made for a
referendum in the European Union (Amendment) Bill introduced
into Parliament to give the new treaty effect in domestic law.
Amendments to the bill proposing a referendum were defeated
and the bill received the royal assent on June 18, 2007. The
claimant contended that the promise to hold a referendum in
relation to the Constitutional Treaty created an implied
representation that a referendum would be held in relation to any
treaty having equivalent effect, giving rise to an enforceable
legitimate expectation. He argued that the Lisbon Treaty had
equivalent effect and that the failure to hold a referendum, or at
least to take steps towards the holding of such, breached his
legitimate expectation.
Held
The Divisional Court (Richards LJ and Mackay J) dismissed the
application for the following reasons:
(i) The Prime Ministers promise to hold a referendum related
specifically to the Constitutional Treaty and not the Lisbon
Treaty, which on any view was a distinct treaty agreed more
than three years later and stemming from a separate
mandate and set of intergovernmental negotiations. There
was no room for the implied representation claimed that a
referendum would be held in respect of any treaty having
equivalent effect. The decision whether to hold a
referendum involved a sensitive political judgment. Also, at
a time when the Constitutional Treaty was under
consideration, an advance commitment on a future treaty,
the very existence of which was contingent on the demise
of the Constitutional Treaty, could not be expected. Further,
once the Constitutional Treaty was in doubt after the
French and Dutch referenda, the government had made its
intention not to hold a referendum on what became the
Lisbon Treaty clear.
(ii) Even if the implied representation contended for were
accepted, the Lisbon Treaty did not have equivalent effect
to the Constitutional Treaty. There were differences of both
form and substance. Further, although the court could
determine factual differences between the two treaties,
whether the differences were material was primarily a
political rather than a legal judgment. That was also true of
the specific question whether the differences were
sufficiently material to warrant a decision not to hold a
referendum. It was doubtful whether such an assessment
was justiciable at all. At best, it was a matter to be
approached on a Wednesbury basis and the court was far
from persuaded that the assessment was Wednesbury
unreasonable. Even if it was for the court to determine the
materiality of the differences between the two treaties, the
claimant had failed to satisfy the court that the differences
were immaterial and that the Lisbon Treaty had equivalent
effect to the Constitutional Treaty.
(iii) In order to found a legitimate expectation, a representation
must in general be clear, unambiguous and unqualified.
The implied representation relied upon depended on an
essentially political judgment as to whether a later treaty
was materially different from the Constitutional Treaty and
this lacked the precision required.
(iv) Even if it was accepted that the government had promised
to hold a referendum on the Lisbon Treaty, such a promise
could not give rise to an enforceable legitimate expectation.
The subject-matter, nature and context of such a promise
placed it in the realm of politics and whether the
government should be held to such a promise was a
political rather than a legal matter. In particular, the decision
on the holding of a referendum lay with Parliament. A
promise to hold a referendum lay so deep in the macro-
political field that the court should not enter the relevant
area at all. It was also relevant that the promise was made
to and affected the public at large and not to particular
individuals or bodies directly affected by the executive
action.
(v) The introduction of a bill into Parliament formed part of the
proceedings within Parliament and was done by an MP in
her/ his capacity as such and not as a member of
government. It formed part of the legislative process
protected by Parliamentary privilege. To order the
defendants to introduce a bill would trespass on the
province of Parliament. In the event, Parliament had passed
the European Union (Amendment) Act 2008 and, in so
doing, had expressly rejected amendments to provide for a
referendum on the Lisbon Treaty.
Comment
Since CCSU v Minister for the Civil Service [1985] AC 374 it has
been well established that prerogative powers are not immune
from judicial review. It is not the source but the nature of the power
which is determinative of whether the exercise of a power is
subject to judicial review (justiciable). The making of treaties,
however, was included in Lord Roskills list of prerogative powers
which, because of their subject matter, are immune from judicial
review (alongside defence of the realm, the prerogative of mercy,
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the grant of honours, the dissolution of Parliament and the
appointment of ministers). Since CCSU, inroads have been made
on some of the subjects of Lord Roskills list, including the treaty-
making power. In R v Secretary of State for Foreign and
Commonwealth Affairs, ex parte Rees Mogg [1994] QB 552 the
applicant challenged the legality of the proposed ratification of the
Treaty on European Union (the Maastricht Treaty) on the basis, inter
alia, that it would transfer the prerogative power to conduct
foreign and security policy without statutory authority. The court
deliberated on the issue despite claims by counsel that the
questions raised were not justiciable. In the end result, the court
rejected the application on the arguments put. In the Wheeler case,
the challenge was based not on the content of the Lisbon Treaty
(although this may well have been the primary objective) but on the
process leading to its ratification ie the absence of a referendum.
However, the court considered that the holding of a referendum (a
relatively rare occurrence in the United Kingdom) was itself within
the political domain of decision-making and beyond the purview of
the courts ie non-justiciable.
A legitimate expectation can arise from a promise/ undertaking
or a past practice. It can be procedural in nature (eg a legitimate
expectation of a hearing before action is taken as in AG of Hong
Kong v Ng Yuen Shui [1983] 2 AC 629 or a legitimate expectation
of consultation as in CCSU) or substantive ie a legitimate
expectation of a particular outcome (eg that a local authority home
will be a home for life as in R v North and East Devon Health
Authority, ex parte Coughlan [2001] QB 213 or that a child will be
allowed into the country for adoption as in R v Secretary of State
for the Home Department, ex parte Khan [1984] 1 WLR 1337). In
Wheeler the claimed legitimate expectation was procedural in
nature ie that a referendum would be held before the Lisbon Treaty
was ratified. Although the concept of legitimate expectation has
been used by the courts in a flexible and creative way, the court
rejected its application in Wheeler for a number of reasons,
including the absence of the undertaking claimed (ie a promise to
hold a referendum in relation to the Lisbon Treaty) and the
generality of the audience (ie the public at large). Promises by
politicians, it seems, are in any case not an appropriate subject for
judicial enforcement (see, in particular, R v Secretary of State for
Education and Employment, ex parte Begbie [2000] 1 WLR 1115
where the court considered that a promise made in the run-up
to a general election could not give rise to a legitimate expectation.
The enforcement of broken political promises would clearly bring
the courts into direct conflict with the executive (and perhaps take
up too much of their time!).
R (on the application of Corner House Research) v.
Director of the Serious Fraud Office
Whether Director of the SFO had acted lawfully in halting a
criminal investigation into bribery of foreign officials to
secure arms deal Whether the public interest in the
potential saving of lives outweighed the public interest in the
investigation of crime
Facts
Under sections 108-110 of the Anti-Terrorism, Crime and Security
Act 2001 it is an offence for a UK company to make a corrupt
payment or pay a bribe to an official abroad. These provisions gave
effect to the UKs obligation under the OECD Convention on
Combating Bribery of Foreign Public Officials in International
Business Transactions. Article 5 of the Convention states that in the
investigation and prosecution of the bribery of a foreign public
official, a party to the treaty shall not be influenced by
considerations of national economic interest or potential effect
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David Hume, Philosopher
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upon relations with another state. Under section 1 of the Criminal
Justice Act 1987 the Director of the SFO is given power, subject to
the superintendence of the Attorney General, to investigate any
suspected offence which appears to him on reasonable grounds to
involve serious or complex fraud. In July 2004 the Director launched
an investigation into allegations of corruption against BAE Systems
Plc concerning an arms contract between the UK government and
Saudi Arabia. A valuable extension to the contract providing for the
supply of Typhoon aircraft was in course of negotiation in 2004-06.
As part of the investigation, the SFO issued notices requiring inter
alia disclosure by BAE of payments to agents and consultants. BAE
responded that the investigation created a serious risk of damage
to important aspects of the UKs relationship with Saudi Arabia. The
Director sought the advice of the Attorney General and it was
decided to invite the views of other government ministers to enable
an assessment of what the public interest required. Such practice
was consistent with the so-called Shawcross exercise established
in 1951. The response from the Cabinet Secretary, attaching a note
which had the support of the Prime Minister, the Foreign Secretary
and the Defence Secretary, emphasised the importance of the
commercial relationship between the UK and Saudi Arabia but also
stressed the importance of the relationship in the context of
national security, counter-terrorism and the search for stability in
the Middle East. The note accepted, however, that the decision was
for the AG and Director acting independently of government. The
AG and Director concluded that the investigation should continue.
A subsequent attempt to gain access to Swiss bank accounts to
ascertain whether payments had been made to a Saudi Arabian
agent or public official, however, prompted an explicit threat that if
the investigation continued Saudi Arabia would withdraw from
existing counter-terrorism cooperation agreements with the UK
and in relation to the UKs strategic objectives in the Middle East
and end negotiations for the Typhoon aircraft. In a subsequent
meeting between the Director of the SFO and HM Ambassador to
Saudi Arabia, the Ambassador expressed the view that the threats
to national and international security were very grave and that
British lives on British streets were at risk. The Prime Minister
subsequently expressed his view that there was a real risk of a
collapse in UK/Saudi security, intelligence and diplomatic
cooperation. After further meetings with the Attorney General and
the Ambassador, the Director decided to discontinue the
investigation. An application for judicial review of this decision was
upheld in the Divisional Court. The court considered, in particular,
that the courts upheld the rule of law by ensuring that a statutory
decision-maker exercised powers independently and without
surrendering them to a third party. In yielding to the threat from the
Saudi government, the Director had failed to make the
independent judgment required by Parliament.
Held
The House of Lords allowed the appeal for the following reasons:
(i) Only in highly exceptional cases will the court disturb a
decision of an independent prosecutor and investigator.
The powers were entrusted to the Director under the
supervision of the Attorney General. The courts also
recognised the polycentric character of official decision-
making including policy and public interest considerations
which are not susceptible of judicial review because it is
within neither the constitutional function nor the practical
competence of the courts to assess their merits. Further,
the powers were conferred in very broad and unprescriptive
terms.
(ii) The Director had performed the duty to, in appropriate
cases, investigate and prosecute. The SFO had launched the
investigation and pursued it by serving a series of statutory
notices to obtain information. They had rejected strong
representations from BAE and the UK government to
discontinue the investigation on public interest grounds.
Even after the threats by Saudi Arabian representatives, the
investigation had continued. It was only after the meeting
with the Ambassador in November 2006 and the Prime
Ministers minute confirming that there was a real likelihood
of serious damage to UK national security had the decision
to discontinue the investigation been taken. The evidence
was that the decision to discontinue was taken with
extreme reluctance.
(iii) The right question to ask was whether, in deciding that the
public interest in pursuing an important investigation into
alleged bribery was outweighed by the public interest in
protecting the lives of British citizens, the Director had
made a decision outside the lawful bounds of the discretion
entrusted to him by Parliament. The Director had not
surrendered his discretionary power to any third party. He
had consulted the most expert source available in the
person of the Ambassador and had consulted the Attorney
General who had left the decision to him. The Directors
decision was one he was lawfully entitled to make.
(iv) Had the Director ignored article 5 of the OECD Convention,
an unincorporated treaty provision not binding in UK
domestic law, his decision could not have been impugned
for inconsistency with it. But he had publicly claimed to be
acting in accordance with article 5. The clear effect of article
5 was to permit national investigators and prosecutors to
act in accordance with the rules and principles applicable in
their respective states, save that they were not to be
influenced by national economic interest, the potential
effect upon relations with another state, and the identity of
the persons involved. Whether potential effect upon
relations with another state was intended to include
multiple loss of life and, if so, whether the intention was to
deny member states the right to rely on a severe threat to
national security was open to question. It was unnecessary
and undesirable for the court to resolve these questions.
The Director had based his adherence to article 5 on a belief
that it permitted him to take account of threats to human
life as a public interest consideration. It was also clear that
he would have taken the same decision even if he had
believed that it was incompatible with article 5.
Comment
This case once again highlights the tension between, on the one
hand, the role of the judiciary in preserving the rule of law (which
clearly influenced the judgment of the Divisional Court given by
Moses LJ) and, on the other, the separation/ balance of power
between the executive and judicial arms of government. It should
be noted that, although a political appointee, the Attorney-General
is expected to act independently of government in such matters.
The issue in this case was at what stage should the public interest
in the investigation of crime and the prosecution of offenders give
way to the competing public interest of national security and
combating international terrorism. The determining factor in this
case was, it seems, the potential loss of lives which might flow from
the withdrawal of support of Saudi-Arabia in the war against
terrorism and, as a result, a possible repeat of 7/7. In reaching his
decision to discontinue the investigation and in upholding the
legality of this decision, both the Director of the SFO and the House
of Lords were reliant on the views of the UK executive of the effect
that continuing with the investigation would have. It might be
argued that the case sets a dangerous precedent both for foreign
governments to exert pressure to halt investigations and also for
the government to argue interests of national security too readily
in future. All the evidence suggests, however, that both the
Director of the SFO and the Attorney-General resisted pressure to
halt the investigation until it became apparent that lives might be
at risk. Only the executive, not the judiciary, was in a position to
assess that risk.
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Case notes
R (on the application of Brooke and Gagik) v The
Parole Board, The Lord Chancellor and the Secretary
of State for Justice [2008] EWCA Civ 29
Whether the Parole Board was independent of the
executive Whether violation of Article 5(4) European
Convention on Human Rights
Facts
Originally, the role of the Parole Board was to advise the Secretary
of State, who took the final decision on whether prisoners should
be released before serving their full terms of imprisonment and
also decided the tariff (the minimum term to be served by life
prisoners or offenders detained at Her Majestys pleasure before
they became eligible to be considered for release on licence).
Through the influence of successive decisions of the European
Court of Human Rights, these decisions had been transferred to
the Parole Board and the judiciary respectively. The Secretary of
State is now required to give effect to decisions of the Parole
Board but commonly gives his view as to the correct outcome.
Under section 239 of the Criminal Justice Act 2003 the Secretary
of State has power to give directions to the Board on matters to
be taken into account in discharging any functions, having regard
to the need to protect the public from serious harm and the
prevention of the commission of further offences. In R (Girling) v
Parole Board [2006] EWCA Civ 1779 the Court of Appeal had
construed this as being a power to give guidance only on matters
to be taken into account that were legally relevant. The applicants
were prisoners who depended, or would depend, for their release
upon decisions of the Parole Board. The defendants, the Parole
Board, the Lord Chancellor and the Secretary of State for Justice,
appealed from decisions of the Divisional Court that the Parole
Board did not meet the requirements of the common law and of
Article 5(4) of the European Convention on Human Rights 1950
for a court to have demonstrated objective independence of the
executive and the parties. Article 5(4) entitles everyone who is
deprived of liberty by arrest or detention to take proceedings by
which the lawfulness of their detention shall be decided speedily
by a court and release ordered if the detention is not lawful. It
was accepted that the Parole Board is a court within Article
5(4) [see Weeks v United Kingdom (1987) 10 EHRR 293] on the
basis that once a prisoner has served the penal part of his
sentence and is then entitled to be considered for release on
licence, his continued imprisonment can only be justified in so far
as is necessary to protect the public. As such, the Board must be
seen to be both independent and impartial under Article 5(4) and
under common law principles of fairness. The Divisional Court
concluded that the relationship between the Parole Board and
the Department of State placed the Secretary of State in a
position of apparent influence over the Board from which he had,
on a number of occasions, sought inappropriately to influence
the Board in the performance of its curial duties. The court
singled out as matters of particular concern (i) the reduction of
the Boards funding by the Secretary of State with the deliberate
intention of preventing the Board from routinely interviewing
applicants for parole; and (ii) intervention by the Secretary of
State in the appointments process with a view to influencing the
outcomes of cases before the Board. Other matters also gave rise
to a perception that the Board was not independent, including
the fact that the Board was housed in a Department building,
that many of its staff were seconded from the Department, that
its IT was shared with the Department and that there were
frequent and confidential meetings between representatives of
the Board and officers of the Department, some of which were
designed to monitor the work of the Board. The court restricted
the relief to declarations because it concluded that the Parole
Boards lack of independence had not had any effect on its
decisions reached in relation to the applicants. The Secretary of
State contended that the Parole Board was an institution of long
standing, whose independence had been recognised by the
European Court of Human Rights [see Weeks v United Kingdom
(above) and Hirst v United Kingdom (2000) (App. No. 407 86/98)]
and that, in so far as the Secretary of State might have acted
inappropriately, judicial review of such conduct provided the
appropriate remedy. It was also argued that the terms of the
declaration were too vague and imprecise, leaving the Secretary
of State in doubt as to how to respond. On appeal to the Court
of Appeal:
Held
The Court of Appeal dismissed the appeal. The findings of the
Divisional Court of lack of independence, both actual and
apparent, on the part of the Parole Board were justified and fully
supported by the evidence. The cause of the problem was the
change of function of the Parole Board from that of a body
advising the Secretary of State in relation to an executive
discretion to release prisoners to that of a judicial body assessing
whether continued deprivation of liberty was justified by the risk
of re-offending. Neither the Secretary of State nor his
Department had adequately addressed the need for the Parole
Board to be, and to be seen to be, free of influence in relation to
the performance of its judicial functions. Both by directions and
the use of his control over appointments of Board members, the
Secretary of State had sought to influence the manner in which
the Board carried out its risk assessments in the context of the
early release of prisoners. The close working relationship between
the Board and the Department blurred the distinction between
the respective judicial and executive roles. While the restriction of
funding, intended to dissuade the Board from interviewing
prisoners and intended to reduce an aspect of the Boards
procedure which the Department did not consider warranted the
expense involved, did not threaten the Boards impartiality, it was
interference that exceeded what could properly be justified by the
role of the Department.
Comment
This decision of the Court of Appeal is the latest in a series of
decisions which have established a greater separation of powers
between the executive and the judiciary and limited executive
interference in judicial functions. In R v Secretary of State for the
Home Department, ex parte Venables [1998] AC 407 the House
of Lords concluded that the Home Secretary had acted unlawfully
when he took into account public opinion evidenced by public
petitions and other correspondence, including coupons cut out of
The Sun newspaper. Lord Steyn took the opportunity to comment
that the Home Secretary was carrying out, contrary to the
constitutional principle of separation of powers, a classic judicial
function. In V & T v United Kingdom (1999) 30 EHRR 121 the
European Court of Human Rights held that the exercise of the
tariff power by the Home Secretary in relation to young offenders
detained at Her Majestys pleasure was a violation of the
requirement of a fair trial before an impartial tribunal protected
by Article 6 of the ECHR. This power was subsequently
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transferred to the judiciary by section 60 of the Criminal Justice
and Courts Services Act 2000. In R (Anderson) v Secretary of
State for the Home Department [2002] UKHL 46, the House of
Lords, adopting the reasoning of the European Court of Human
Rights in Stafford v United Kingdom (2002) 35 EHRR 32,
concluded that the Home Secretarys power to set the final tariff
in the case of mandatory life prisoners was the exercise of a
sentencing power and so must be conducted in accordance with
Article 6 ECHR. The Criminal Justice Act 2003 subsequently
provided for the transfer of this power also into the hands of the
judges. The Constitutional Reform Act 2005 engaged in, inter
alia, a transfer of significant judicial powers then in the hands of
the Lord Chancellor, a political appointee, member of the
executive with a seat in Cabinet, who presided in the House of
Lords when exercising a legislative function, while at the same
time being the head of the judiciary and a senior judge in the
House of Lords when exercising a judicial function. The
maintenance of the independence of the judiciary is a vital
feature of the Rule of Law. It is a fundamental principle of Natural
Justice that justice must be seen to be done and that the
appearance of bias in the judicial process is sufficient to invalidate
the decision-making process. Impartiality is also a pre-requisite of
good and fair decision-making. The executive, however, often
with Parliamentary assistance, has been reluctant to relinquish
control in the operational field of law and order, the prevention
of crime and the administration of justice. Successive
governments have felt the need to demonstrate that they are
hard on crime and responsive to public opinion which is critical
of cases reported in the popular media of offenders who re-
offend once released on licence. This, however, simply makes it all
the more vital that politicians are removed from influencing,
directly or indirectly, the judicial process. At the least, if the
executive is to enjoy any power or influence in the judicial
domain, this must be clearly and expressly conferred by
Parliamentary authority through statute.
Secretary of State for Justice v Walker and James
[2008] EWCA Civ 30
Whether the Secretary of State had acted unlawfully by
failing to provide measures to allow prisoners to
demonstrate to the Parole Board that their continued
detention was no longer necessary for the protection of
the public
Facts
The respondents, W and J, were short tariff lifers [ie they had
received indeterminate sentences for public protection (IPPs)
see section 225 Criminal Justice Act 2003 - with minimum terms
(tariffs) of no more than 5 years detention]. They claimed that the
Secretary of State had acted unlawfully by failing to provide for
measures to allow and encourage prisoners serving IPPs to
demonstrate to the Parole Board by the time of the expiry of their
tariffs that their detention was no longer necessary for the
protection of the public. The Divisional Court [(2007) EWHC 1835
(Admin) and (2007) EWHC 2027 (Admin)] held that the Secretary
of State had acted unlawfully by failing to provide such measures.
W had not yet served his minimum term but J had and his
immediate release was ordered subject to a stay of execution
pending the outcome of the appeal. A further issue was whether
the Secretary of States conduct had infringed or was capable of
infringing Articles 5(1) and (4) of the European Convention on
Human Rights (the right to liberty and security of the person and
the right of those deprived of their liberty by detention to take
proceedings by which the legality of their detention shall be
decided speedily by a court and release ordered if detention is not
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lawful). In the Lifer Manual PSO (Prison Service Order) 4700,
the Secretary of State had produced a policy for the treatment
and management of lifers, including short tariff lifers. This
policy stated that short tariff lifers were to be prioritised for
offending behaviour programmes to enable them to be given
every opportunity to demonstrate their safety for release at tariff
expiry. The evidence was that life prisoners had no realistic
prospect of release by the Parole Board unless they had attended
relevant offending behaviour programmes. Doncaster prison had
very limited resources for offending behaviour work. Js tariff had
expired and he had received no formal sentence planning to
ascertain what offending behaviour he needed to address before
release. Although he had attended some courses, these did not
include courses which the Parole Board considered he should
have attended but which were not available at Doncaster prison.
W had no access to any meaningful programme, course or work
such as might enable him to demonstrate to the Parole Board, in
due course, that the risk he posed to the public was sufficiently
low to justify his release. The Divisional Court (Laws LJ and
Mitting J) held in the case of W that it was an underlying premise
of the legislation that, upon the coming into force of the new
sentencing provisions in the 2003 Act (not least relating to IPPs)
procedures would be in place to ensure that initiatives would be
available to maximise the opportunity for lifers to demonstrate
that they were no longer a danger to the public at the point of
expiry of their tariffs. The decision of the Court of Appeal in R v
Secretary of State for the Home Department, ex parte Cawser
[2003] EWCA 1522) precluded a finding that detention of a life
prisoner beyond his expiry date because of a failure to provide
offender behaviour courses breached Article 5(1) of the ECHR.
However, incarceration of a prisoner after the tariff period
without any current and effective assessment of the danger he
posed was unlawful at common law. Collins J applied the
reasoning of Laws LJ in the case of J. On appeal to the Court of
Appeal:
Held
The Court of Appeal dismissed the appeal against the granting of
a declaration that the Secretary of State had acted unlawfully by
failing to provide for measures to allow and encourage prisoners
serving IPPs to demonstrate that it was no longer necessary for
the protection of the public that they continue to be detained.
The Secretary of States submission that there was no basis for
saying that it was an underlying premise of the 2003 Act that he
would provide IPP prisoners with the maximum opportunity to
demonstrate to the Parole Board that it was no longer necessary
to detain them for the protection of the public lacked realism.
Experience showed that such courses were necessary if
dangerous offenders were to cease to be dangerous and, for this
reason, their completion was likely to be a pre-requisite to satisfy
the Parole Board that a prisoner had ceased to be dangerous. The
Secretary of State had chosen to bring the relevant statutory
provisions into force in April 2003 but had not provided the
resources necessary to give effect to the policy of the Act. This
could not simply be regarded as a discretionary choice about
resources, which was pre-eminently a matter for the government
rather than the courts. The Secretary of States conduct
amounted to a breach of his public law duty. The appeal was,
however, allowed to the extent that the finding of the Divisional
Court that IPP prisoners who had completed their tariff terms
were unlawfully detained was erroneous and Collins Js decision
that J be released could not stand. The 2003 Act made express
provision for the circumstances in which IPP prisoners might be
released ie that the Parole Board was satisfied that detention was
no longer necessary for the protection of the public. The
Divisional Courts judgment would require the prisoners to be
released in disregard of the express statutory requirements.
Further, the conduct of the Secretary of State had not yet had the
result that the respondents were not being detained for the
object for which the IPPs were imposed such that their detention
could not be justified under Article 5(1)(a) of the ECHR. The
primary object of the IPP sentence was to protect the public and
not to rehabilitate the offender. However, detention would cease
to be justified under Article 5(1)(a) once detention was no longer
necessary to protect the public or if so long elapsed without a
meaningful review such that their detention became
disproportionate or arbitrary.
Comment
The courts have traditionally been loathe to interfere with
decisions which involve resources. They have, on the whole,
adopted a pragmatic approach that resources are finite and
decisions on how resources are to be managed rest largely with
the relevant public authority. See, for example R v Cambridge
Health Authority, ex parte B [1995] 1 WLR 898, where the House
of Lords held that the allocation of limited financial resources was
one of a number of relevant considerations to be taken into
account by the area health authority in determining whether to
finance an experimental treatment for a child suffering from
leukaemia; see also R v Chief Constable of Sussex, ex parte
International Traders Ferry [1999] 2 AC 418 where the House of
Lords held that a decision of the Chief Constable to reduce
policing of animal rights protests on resource grounds with the
result that the legal export of live animals was delayed was
reasonable in law. The courts have been even more reluctant to
review resource decisions by central government, especially when
approved by Parliament or by the House of Commons alone, as
demonstrated in particular by the decision of the House of Lords
in Nottinghamshire County Council v Secretary of State for the
Environment [1986] AC 240. Lord Scarman went so far as to say
that a policy decision of such a nature (ie public financial
administration) could be reviewed only if a prima facie case were
to be shown for holding that the Secretary of State had acted in
bad faith, or for an improper motive, or that the consequences of
his guidance were so absurd that he must have taken leave of his
senses. It would appear that the Court of Appeal was much less
inclined to find in favour of the minister in the present case. After
all, it was government policy to introduce short term lifers,
which might itself be regarded as an interference with the judicial
sentencing process. Having made that bed, the executive must lie
in it and provide adequate resources to ensure that offenders
were not deprived of their liberty any longer than was necessary
to protect the public, once the punishment meted out to serve
the demands of retribution and deterrence had been served.
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Case notes
by David Stott, Principal Lecturer in Law,
Anglia Law School, Anglia Ruskin University
Cameron and Others v Network Rail Infrastructure Ltd
[2007] 3 All ER 41
Whether Network Rail was a public authority within section
6 Human Rights Act Whether under obligation to act
compatibly with Convention rights
Facts
In 1994 British Rail was privatised and Railtrack Plc was created. The
railway infrastructure was vested in Railtrack, which was given
statutory powers to regulate safety on the railway network. This
regulatory function was, however, removed in December 2000 by
the Railways (Safety Case) Regulations. At the same time, Railtrack
changed its name to Network Rail Infrastructure Ltd and was
purchased by Network Rail Ltd. Railtrack went into liquidation in
October 2001. In May 2002 there was a train crash at Potters Bar.
The mother of the claimant daughters was killed by falling debris
while walking under a railway bridge. Under English law the class
of person able to bring proceedings on behalf of a deceased person
or their estate was restricted and did not include the claimant
daughters who were not financially dependent on the deceased. It
was alleged that the accident had been caused by a failure to
maintain points on the line. The claimants brought a variety of
claims against the defendant under the Human Rights Act 1998,
including a claim for damages for breaches of Articles 2 (the right
to life) and 8 (the right to respect for a family life) of the European
Convention on Human Rights 1950. The defendant applied for
summary judgment under CPR Pt 24 on the ground that the claims
had no real prospect of success and for the particulars of claim to
be struck out as disclosing no reasonable grounds for bringing a
claim. Under section 6(1) of the Human Rights Act, it is unlawful
for a public authority to act in a way which is incompatible with a
Convention right. Public authority includes any person certain of
whose functions are functions of a public nature [section 6(3)(b)]
but a person is not a public authority by virtue only of subsection
6(3)(b) if the nature of the act is private [section 6(5)]. The central
issue in the case was, therefore, whether the defendant was a
public authority and acting as such for the purposes of section 6.
The defendant also argued that the claim, which had been brought
three years after the event, was out of the normal time limit under
the Human Rights Act of one year from the date on which the act
complained of took place [section 7(5)].
Held
Sir Michael Turner allowed the defendants application for summary
judgment. He concluded that, at the material time, the defendant
was not a public body within section 6 of the Human Rights Act.
The factors which led to this conclusion were:
1) The business of running a railway was not intrinsically an
activity of government, although governments had taken
control, by nationalisation, of railways. It would have been
hard to dispute the proposition that under the 1947
Transport Act the former British Railways Board was an
emanation of government. But the very purpose of
privatisation was to break that mould and sever the railways
from direct government control.
2) There was a clear commercial objective in Railtracks
performance. It was concerned to make profits for its
shareholders from its operations as an infrastructure
company. Railtrack had been stripped of any regulatory
function by the 2000 regulations.
3) There was no obligation on Railtrack to conduct its
operations in a manner subservient to the public interest
and it was free to conduct its business in the manner it saw
fit and best calculated to make profits.
4) Railtrack was not democratically accountable to central or
local government.
5) Railtracks board of directors was appointed by the company
and their appointment was not subject to government
influence or control.
6) Railtrack possessed no special powers nor enjoyed any
special immunities which might have been indications of
publicness.
7) Railtrack was not publicly funded.
8) Railtrack had no special powers beyond those which
resulted from those which regulate relations between
individuals.
Johnson and Others v Havering London Borough
Council; YL v Birmingham City Council [2007] EWCA
Civ 27 HL
Whether private care home was performing functions of a
public nature within section 6 Human Rights Act 1998
Whether obligation to act compatibly with Convention
rights
Facts
The appellant, YL, was a resident of a private care home, Southern
Cross Healthcare Ltd. Her residence was largely funded by
Birmingham City Council and about 80% of residents were funded
wholly or partially by local authorities. YLs residence was covered
by a tripartite agreement between Southern Cross, the council and
OL (YLs daughter) acting on behalf of YL, as well as by a third party
funding agreement between the council and OL. Southern Cross
received a basic fee from the council and a top-up fee from OL. In
arranging the placement, the council was acting pursuant to its
duty under sections 21 and 24 of the National Assistance Act 1948,
as amended, to make arrangements for providing residential
accommodation for those in need of care due to age, illness or
disability. Other residents were self-funders ie they, or their
relatives, arranged the placements and paid the fees themselves.
After allegations about the conduct of OL and YLs husband during
visits, Southern Cross gave notice to OL to have YL removed from
the care home. In response, YL invoked section 6(3)(b) of the
Human Rights Act 1998 and Article 8 of the European Convention
on Human Rights. The central issue was whether the care home
was performing functions of a public nature under section
6(3)(b) of the Human Rights Act and was thus a public authority
under section 6(1) of the Act and so obliged to act compatibly with
Convention rights. The Court of Appeal [(2007) EWCA Civ 26;
[2007] 2 WLR 1097] upheld the decision of Bennett J that the care
home was not performing functions of a public nature and so was
not subject to the obligation in section 6(1) of the Human Rights
Act to act in a way which was compatible with Convention rights.
On appeal to the House of Lords:
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Held
The House of Lords dismissed the appeal (Lords Scott, Mance and
Neuberger in the majority, Lord Bingham and Baroness Hale
dissenting) for the following reasons:
1) The rationale of section 6 as stated by Lord Nicholls in
Aston Cantlow ([2003] UKHL 37; [2004] 1 AC 546) was to
ensure that those bodies for whose acts the state was
answerable before the European Court of Human Rights
should be subject to a domestic law obligation not to act
incompatibly with Convention rights. In some
circumstances, the state might remain responsible for the
performance of essentially state or governmental functions
or powers delegated to a private body. However, the mere
possession of special powers conferred by Parliament did
not mean by itself that a body had functions of a public
nature. It was necessary to look at the context in which,
and the basis on which, a contractor acted.
2) Southern Cross entered into private law contracts with the
residents in its care homes and with the local authorities
with whom it did business. An obligation by Southern
Cross to observe Convention rights of residents was an
express term of the agreement between the council and
Southern Cross and was incorporated into the agreement
between Southern Cross and YL. Any breach would give
YL a cause of action for breach of contract. Further, the
notice to terminate the agreement was served in reliance
on a contractual provision in a private law agreement and
affected no-one but the parties to the agreement.
3) Southern Cross received no public funding and was not
subsidised (though most of the residents were placed in
the home by local authorities pursuant to their statutory
duty under section 21 of the 1948 National Assistance Act
and their fees were paid wholly or partly by the local
authorities or health authorities). Southern Cross was
simply carrying on its private business with a customer who
happened to be a public authority and providing a service
for which it charged a commercial fee.
4) Per Lord Neuberger: It would be easier to contend that a
business was carrying out a function of a public nature
where a core public authority (eg a local authority)
supported or subsidised the business generally rather than
where it funded services provided by the business to
specific individuals.
5) Southern Cross enjoyed no statutory powers (though the
position might be different if the managers of the home
enjoyed special statutory powers entitling them to restrain
or discipline residents or to confine them to their rooms).
6) Southern Cross was at liberty to accept or reject residents
as it chose and to charge whatever fees in its commercial
judgment it thought suitable.
7) Southern Cross operated in a commercial market with
commercial competitors. By comparison, the activities of a
local authority in managing its own care homes were
carried out pursuant to statutory duties and responsibilities
imposed by public law and the costs were met out of
public funds, subject to recovery of a means-tested
contribution.
8) It was not enough simply to compare the nature of the
activities being carried out at privately owned care homes
with those at local authority care homes. It was necessary
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to look at the reason why the body was carrying out those
activities. A local authority was doing so pursuant to public
law obligations. A private person or body was doing so
pursuant to private law contractual obligations.
9) The actual provision, as opposed to the arrangement, of
care and accommodation for those unable to arrange it
themselves was not an inherently governmental function.
The local authoritys involvement was aimed at making
arrangements, including funding, which put those in need
in effectively the same position as self-funders. Once this
had been done, the actual provision of care and
accommodation did not need to be undertaken by the
local authority and, as the modern legislation recognised,
could take place in the private sector. The council was not
contracting out its duty under the 1948 Act, which was to
arrange for the provision of care and accommodation. It
had no duty to provide that care and accommodation
itself. The 1948 Act did no more than permit a local
authority to provide care and accommodation in its own
care homes.
10) While Southern Cross was subject to close statutory
regulation in the public interest, this did not point to it
being a state or governmental body or a person with a
function of a public nature. Its private and commercial
motivation pointed against treating it as such.
11) The nature or quality of care provided for residents in a
private care home should not depend on the person with
whom it contracted to provide such services. It would be
inequitable if self-funders had less legal protection than
those funded by the local authority.
12) If a publicly funded resident was not a party to any
contract with the care home, he or she would have the
right to invoke the Convention as against the local
authority, effectively placing the onus on the authority to
take any steps open to it as against the care home to
protect the residents human rights.
13) It was less incongruous to distinguish between residents in
private care homes and residents in local authority homes
than to distinguish between publicly and privately funded
residents in the same home.
14) The fact that care homes were regulated by the Care
Homes Regulations 2001 did not result in the proprietor of
a care home carrying out a function of a public nature. The
mere fact that the public interest required a service to be
closely regulated and supervised by statutory rules did not
mean that the provision of the service, as opposed to its
regulation and supervision, was a function of a public
nature.
Lord Bingham and Baroness Hale, dissenting, considered the
following factors to be relevant:
1) The nature of the function as public or private. It was the
nature of the function which was decisive under section 6.
The nature of the function in this case was not just the
provision of residential accommodation, but such provision
plus care and attention to those in need.
2) The nature and extent of the public interest in the function
in question. In some fields eg defence, the involvement of
the state was long-standing. In others, eg sport or the arts,
it was more recent. For the past 60 years the state had
accepted a social welfare responsibility to provide
accommodation and care for those in need.
3) The nature and extent of any statutory power or duty in
relation to the function in question. This would indicate
the states concern. The absence of statutory intervention
would indicate that the function was private. Sections 21
and 26 of the 1948 Act conferred powers and imposed
duties. The fact that the duty was to arrange and not to
provide care was not significant. Parliament intended
residential care to be provided but treated the means of
doing so, in itself, as unimportant. The provision of
residential care was the subject of very detailed control by
statute, regulation and official guidance and little was left
to the judgment of individual providers.
4) Whether the function was one for which the state was
willing, directly or indirectly, to pay. A majority of residents
were subsidised out of public funds.
5) The extent of the risk that improper performance of the
function might violate an individuals Convention rights.
Those who qualified for residential care under sections 21
and 26 of the 1948 Act belonged to a very vulnerable
section of society.
6) When the Human Rights Act was passed, it was well
known that functions formerly carried out by public
authorities were now carried out by private bodies and
section 6(3)(b) was clearly drafted with this in mind.
Comment
The above cases add to the line of cases which deal with the issue
of when a private body is performing functions of a public nature
and is, as such, subject to an obligation to act in a Convention
compliant way under section 6(1) of the Human Rights Act 1998.
(See also: R v Servite Houses ex p Goldsmith [2001] LGR 55; Heather
v Leonard Cheshire Foundation [2002] 2 All ER 936; Aston Cantlow
and Wilmote with Billesley Parochial Church Council v Wallbank
[2004] 1 AC 546.) This public/private law divide has also been an
issue in judicial review cases for a number of years (see, in particular,
R v Panel on Takeovers & Mergers, ex parte Datafin [1987] QB 815).
The privatisation in a mixed economy of functions formerly carried
out in the public sector continues to add to the burden of case law,
with the courts generally coming down in favour of the private body
not being subject to public law. The fact that the body might derive
certain of its powers from statute is not enough to bring it into the
public law arena. It is perhaps the nature of the function/ powers
exercised which is determinative. The courts continue to recognise
the enjoyment of regulatory or supervisory powers as being
governmental in nature, but day to day operational powers as
being private (unless they are carried out by a core public
authority itself). Whatever the decision on the public/private nature
of a body, idiosyncrasies will emerge. Currently, residents in local
authority homes will have the protection afforded by public law
simply because of the nature of the provider as a core public
authority; those in private care homes will not. This may not be a
significant consequence where, as in the case of YL for example, the
contract between the public authority and the provider or between
the provider and the resident incorporates equivalent protection,
though the remedy would lie in the private law of contract. A
resident in a private care home may also be able to bring
proceedings against the UK if the state fails to fulfil a positive
obligation to protect the citizens Convention rights. Actions can be
founded upon omissions/ failures by the state as well as actions by
the state. What the courts will presumably remain loathe to permit
is a decision which is the so-called pariah of Administrative Law
a decision which is unreviewable in either public or private law.

Case Notes: Administrative Law

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Case Notes: Administrative Law

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Gillan and Quinton v.

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