Alison Young: Towards an Expository Justice Approach to Human Rights Adudication?

alison-youngThe recent Supreme Court Case of R (Johnson) v Secretary of State for the Home Department, [2016] UKSC 56, appears at first glance to be a straightforward human rights claim. Lady Hale, giving the agreed judgment of the court, concluded that Johnson’s Convention rights had been breached. Because of the specific nature of the challenge brought by Johnson, the breach of his Convention rights could be remedied by quashing a decision of the Home Secretary. However, Lady Hale then went on to discuss whether a declaration of incompatibility should still be made, concluding that paragraph 70 of Schedule 9 of the Immigration Act 2014 was incompatible with Convention rights, and therefore ‘[t]he court will make a declaration to that effect, although it is not necessary to do so in order to dispose of this case.’ This calls into the question the nature and role of human rights adjudication: should courts merely provide remedies for those whose rights have been infringed, or should they also prompt action to remedy potential infringements of rights, or both?

Johnson was born in Jamaica to a Jamaican mother and a British father. His parents were not married at the time of his birth and had not married subsequent to his birth. Therefore, given the law at that time, Johnson became a Jamaican citizen, but not a British citizen. He moved to the UK with his father when he was four years old and had remained in the UK ever since, obtaining permanent leave to remain in the UK. Although an application for British citizenship could have been made by either Johnson or his father, no application had been made.

Difficulties arose as Johnson has a very serious criminal record, culminating in a conviction for manslaughter. In 2011, the Home Secretary served notice to Johnson that he was liable for automatic deportation as a foreign criminal. A deportation order was then made against Johnson in August 2011. The First Tier Tribunal heard Johnson’s appeal and concluded that deportation was a legitimate and proportionate interference with Johnson’s Article 8 right to private life. However, it remitted to the Secretary of State the question as to whether deporting Johnson would amount to unlawful discrimination, under Articles 8 and 14 ECHR. Had Johnson’s parents been married at the time of his birth, Johnson would have been a British citizen and, therefore, could not have been deported. A year later, the Secretary of State gave removal directions, which Johnson challenged on the ground that he still had an existing appeal, as the First Tier Tribunal had remitted his case. The removal directions were stayed by the court. The Secretary of State then reconsidered her decision, concluding that there was no unlawful discrimination, and therefore refused to revoke her original decision setting removal directions. She also certified that the claim of unlawful discrimination was clearly unfounded, meaning that Johnson no longer had a right of appeal against the decision within this country. Johnson then brought proceedings to challenge the decision and the certification.

At first instance, the court concluded that there was unlawful discrimination and the certificate claiming that the challenge to the removal directions was clearly unfounded was quashed. The Court of Appeal, however, concluded that the certificate was correct. Johnson’s claim was unfounded given that, at the time of his birth, there had been no violation of Convention rights and the matter had to be judged at that time. The Supreme Court concluded that Johnson’s convention rights had been breached, quashing the Secretary of State’s certificate that Johnson’s claim was clearly unfounded. Lady Hale concluded that the consequence of quashing the certificate was that Johnson would be able to appeal the removal directions from within the UK. Moreover, given Lady Hale’s interpretation of Johnson’s Convention rights, of immigration legislation and the system of immigration appeals, Johnson’s appeal would be ‘certain to succeed’. Nothing more would be needed to ensure that there was no breach of Johnson’s Convention rights. Nevertheless, the court went on to make a declaration of incompatibility given that there were ‘bound to be other people in the appellant’s situation’ and given that ‘[t]here are all sorts of current consequences which might flow from that situation’.

The declaration of incompatibility was issued against section 70 of Schedule 9 to the Immigration Act 2014. Section 65 of the Immigration Act 2014 allows for people in a similar situation to Johnson to apply for British citizenship. It provides a right to register as a British citizen to those who are not granted British citizenship automatically because their parents are unmarried. This applied specifically to Johnson, whose British father was not married to his Jamaican mother. If his parents had been married, then Johnson would have been a British citizen, deriving this from his British father. However, section 70 of Schedule 9 to the Immigration Act 2014 makes the right to apply for citizenship conditional; specifically those over the age of 16 have to satisfy a ‘good character’ requirement. It is this section which gave rise to unlawful discrimination – but for the marital status of his parents, Johnson would have been a British citizen automatically, and would not have had to demonstrate good character in order to obtain citizenship once he had passed the age of 16. When issuing the declaration of incompatibility, Lady Hale was concerned not just about possible deportation implications, where the specific facts may not have enabled Convention rights to be protected through the quashing of an executive order, but also because of other possible repercussions – e.g. the denial of the right to vote.

The issuing of a declaration of incompatibility in these circumstances calls into question the nature of human rights adjudication under the Human Rights Act 1998. Should courts focus on determining the rights of the individual before the court, providing a remedy appropriate to the situation of that individual, or should the court go further, granting a broader remedy which will have an impact beyond the immediate situation of the individual before the court? In some senses, the Supreme Court is doing nothing new. Declarations of incompatibility always have the potential to touch on circumstances not before the court given that legislation often has a broad application. Moreover, as the declaration of incompatibility does not affect the continuing validity, force or legal effect of the provision declared incompatible, there are no immediate legal consequences of the declaration, minimising the consequences for legal certainty through unforeseen consequences for third parties who are not before the court. There are also clear advantages of making a declaration of incompatibility in this case. A declaration was not needed in this case because of a combination of the specific nature of immigration appeals and its application to the specific chain of events arising in Johnson. By issuing a declaration of incompatibility, the Supreme Court is able to indicate that a change may be needed, enabling the Government or Parliament to intervene to remedy the breach of Convention rights without the need for this to be raised in a further case. It recognises that human rights adjudication is not just about protecting the rights of individuals before the court. It is also about pointing out where other rights may be harmed; a facilitation of expository justice in addition to dispute resolution.

Nevertheless, it further muddies the water concerning the court’s discretion to issue a declaration of incompatibility under section 4 of the Human Rights Act 1998. This discretion had previously been exercised by the court refusing to grant a declaration of incompatibility even though a Convention right had been breached. In Chester Lady Hale decided not to issue a declaration of incompatibility because she was concerned that, although a blanket ban on prisoner voting breached Convention rights, the Convention rights of the particular prisoners before the court had not been breached. She asserted that ‘the court should be extremely slow to make a declaration of incompatibility at the instance of an individual litigant with whose own rights the provision in question is not incompatible.’ In Chester, dispute resolution was more important than expository justice. In Johnson the balance was tipped in the opposite direction.

Adjudication under the Human Rights Act can and should serve both as a means of resolving individual disputes before the court and as a means of facilitating expository justice. The situation in Johnson is fairly discrete. A declaration was not needed because of the specific facts before the court and their application to the complex system of immigration appeals. To make a declaration of incompatibility in this case did not cause issues of ripeness or mootness. The specific facts were known and, in deciding the case, Lady Hale was able to explain how this particular set of circumstances breached Convention rights and how this breach of Convention rights could apply in other circumstances where immigration rules would not have rendered a declaration of incompatibility redundant in order to protect the rights of the individual before the court. If Chester tipped the scales in the opposite direction, it was because of a lack of breach of the Convention rights of the prisoners before the court combined with the fact that expository justice had already been facilitated – through an earlier declaration of incompatibility and a series of decisions of the Strasbourg court.

Nevertheless, the case raises issues as to the relative role of courts more generally; how should they balance their role of protecting rights and pointing out potential ways in which legislation may breach Convention rights? There is no ability for an individual to bring a claim under the Human Rights Act 1998 on a purely speculative point. It would not be possible for an individual to bring a case to court arguing that, if legislation were interpreted in a particular way, her Convention rights might be breached, and therefore the individual wished to seek a declaration that legislation would not be able to be interpreted in that manner. Instead, we would expect the individual to wait and see if legislation were interpreted in a manner compatible with her Convention rights and to bring a claim to the court where it was believed that this had not occurred. In a similar manner, we would not expect challenges to legislation seeking a declaration of incompatibility on the off-chance that, if certain facts were to arise, Convention rights might be breached in the future. We would expect challenges to be brought when these facts arise and Convention rights have arguably been breached. Broad speculation as to potential breaches of Convention rights are best-suited to parliamentary pre-legislative scrutiny. Courts are better placed to assess whether a breach of Convention rights has actually taken place. Nevertheless, as the arguments in Santos and M v Secretary of State for Exiting the European Union demonstrate, circumstances may also arise when declarations are needed before we can be certain as to how future events will proceed, as it may be too late to prevent potentially unlawful actions once they have occurred. How the court will negotiate its way through the competing aims of dispute resolution and expository justice in more complex scenarios than Johnson remains to be seen.

Alison Young is Professor of Public Law and a Fellow of  Hertford College, University of Oxford.

(Suggested Citation: A.L. Young, ‘Towards an Expository Justice Approach to Human Rights Adudication?’ U.K. Const. L. Blog (25th Oct 2016) (available at