affiliated to the International Association of Constitutional Law
Editors’ note: The Public Law Current Survey was originally published in Public Law and is reprinted here with the generous permission of that journal.
Act of State and State immunity
In order to make good a claim to state immunity, where that was being indirectly impleaded, the proceedings must affect the legal interests of a foreign state or its officials. No domestic or international case had extended the concept of “interests” so far as to cover reputational or like disadvantage that could result to foreign states or their officials from findings made in proceedings in the UK. All of the cases were limited to affecting interests relating to proprietary or possessory title. So held the Supreme Court (Lord Mance giving the leading judgment) dismissing government appeals in cases concerning the alleged complicity of UK officials in alleged acts of torture carried out overseas by foreign agents seeking to combat international terrorism. Here, the legal position of the foreign states, the conduct of whose officials was alleged to have been tortious in the places where such conduct occurred, would not be affected in any legal sense by proceedings to which they are not party. State immunity was wide enough to cover cases where it was integral to the claims made that foreign states or their officials were alleged or were proved to have acted contrary to their own laws. As to claims for foreign act of state, three types were identifiable under current English authority. First, there was a well-established rule of private international law, according to which a foreign state’s legislation would be recognised and normally accepted as valid, in so far as it affected property, whether movable or immovable, situated within that state when the legislation took effect. Secondly, it had been held that a rule existed whereby an English court would not question a foreign governmental act in respect of property situated within the jurisdiction of the foreign government in question (per Lord Sumption, municipal law act of state covered the ambit of these two). Even if, for the sake of argument, that second type extended to sovereign acts against the person, the case for recognising some public policy limits would be stronger. Thirdly, there were certain categories of sovereign act by a foreign state abroad, even if outside the jurisdiction of that state, which domestic courts should treat as non-justiciable. The basis for this was the sovereign equality of states and comity. This judicial abstentionism was fact- and issue-sensitive, to be considered on a case-by-case basis. There was no reason why that third type of foreign act of state should be limited territorially. Considerations of the separation of powers and of the sovereign nature of foreign sovereign or inter-state activities might both lead to the conclusion that an issue was non-justiciable in a domestic court, as would the lack of judicial and manageable standards by which to judge the conduct. This third category (termed “international law act of state” by Lord Sumption) was subject to public policy exceptions such as whether issues of fundamental rights were engaged, including liberty, access to justice and freedom from torture. Here, while Sovereign states who without justification and without permitting access to justice detained or mistreated individuals in the course or in relation to their conduct of foreign relations had sovereign immunity in their own domestic courts, there was no reason why English law should refrain from scrutinising that conduct in the course of adjudicating upon claims against other parties who enjoyed no such immunity in the UK. This was all the more so where the alleged conduct involved almost indefinite detention, combined with deprivation of any form of access to justice and torture or persistent ill-treatment. Since state immunity was no bar to the claims, and there was not, on the assumed facts, any entitlement to rely on the doctrine of foreign act of state to defeat the present proceedings, the appeals were dismissed. The cases proceed to trial (Belhaj v Straw; Rahmatullah (No 1) v Ministry of Defence  UKSC 3).
The doctrine of Crown act of state acts as a defence to certain claims against the Crown in the field of international affairs arising from acts performed by the Crown in the course of its relationship with another state or its subjects, as a prerogative act of policy. It comprises two elements. The first is a rule of non-justiciability for certain prerogative acts of the Crown in the sphere of foreign affairs. The second affords a defence to claims in tort, which would otherwise be suitable for adjudication for a court, and dates from Buron v Denman (1848) 2 Exch 167. It covers a narrow class of acts: acts that are in their nature sovereign acts – the sorts of thing that governments properly do – and are committed abroad, in the conduct of the foreign policy of the state and were so closely connected to that policy to be necessary in pursuing it. So held the Supreme Court unanimously (Lady Hale giving the judgment of the Court) overturning the Court of Appeal in the course of preliminary proceedings brought against the Ministry of Defence and the Foreign and Commonwealth Office by a large number of people claiming to have been wrongfully detained or mistreated by UK or US forces in the course of the conflicts in Iraq and Afghanistan. The Court of Appeal had determined that Crown act of state had application to tortious claims but with a much narrower scope that was not applicable on the facts, and had therefore held for the claimants. It would have been unwise for the Court to attempt a definitive statement of the circumstances in which this aspect of the doctrine might apply, suffice that it extended at least (as here) to the conduct of military operations which were themselves lawful in international law (which was not the same as saying that the acts themselves are necessarily authorised in international law). The Government had conceded that it was inapplicable to torture and to maltreatment of detainees and prisoners (although on which see Lord Sumption at ). It was also no longer in dispute in the case that the doctrine was not a defence to claims made under the Human Rights Act. The doctrine was not abolished by the Crown Proceedings Act 1947, which preserved the previous law by the proviso in s.2(1), and further was compatible with the right to a fair trial protected by Art 6 of the ECHR as it was clearly a rule of substantive law rather than a procedural bar. Lord Mance gave a concurring judgment, with which Lord Hughes agreed. He thought it created unnecessary confusion to suggest that the principle had two branches, one non-justiciability, the other a defence. It was clear that the underlying principle was one of non-justiciability or (better put) abstention or restraint – based on an underlying perception of the role of domestic courts – whereby Crown decisions and/or activities of a certain nature in the conduct of foreign affairs were not open to question in domestic civil proceedings, at the instance of anyone injured thereby (except, perhaps, someone owing allegiance to the Crown, a point which was left open). Crown act of state was therefore reserved for situations of sovereign authority, inherently governmental in nature, exercised overseas as a matter of state policy, with the prior authority or subsequent ratification of the Crown and in the conduct of the Crown’s relations with other states or their subjects. It covered both acts in the execution of policy-makers’ decisions as well as the decisions themselves. Lord Sumption also concurred and again saw merit in the doctrine not being comprised of two rules. Crown act of state was a rule of substantive law. The court was not disabled from adjudicating on a Crown act of state by virtue of its subject-matter, one sense of the term non-justiciable. Acts of the Crown and its agents were always in principle subject to the adjudicative power of the courts. They unquestionably had both jurisdiction and competence to determine the legal effects of a Crown act of state on the rights of those adversely affected by it. Instead, the real question was what were those rights. The rule of law relating to Crown acts of state defined the limits which as a matter of policy, the law set upon certain categories of rights and liabilities, on the ground that they would otherwise be inconsistent with the exercise by the executive of the proper functions of the state (Rahmatullah (No 2) v Ministry of Defence; Mohammed v Ministry of Defence  UKSC 1).
The Defence Committee report, “Exposing Walter Mitty: The Awards for Valour (Protection) Bill” (HC 658 22 November) underlined the Committee’s support for the principles behind the Private Members’ Bill (which passed Second Reading in the House of Commons on 25 November) and its agreement that offences should be created to criminalise the deceitful wearing of decorations and medals by ‘military imposters’.
Giving notice under Article 50 of the Treaty on European Union, triggering the two-year process for the UK to withdraw from the EU, could not as a matter of the UK’s constitutional arrangements be done by Ministers alone under the prerogative power relating to the conduct of foreign affairs, specifically the making and unmaking of Treaties, but required an Act of Parliament. The Northern Ireland Act 1998 did not require the Northern Ireland Assembly and/or the people of Northern Ireland, to consent to withdrawal and, in respect of all the devolved nations, the Sewel convention added no weight to that argument, it being only a political, not a legal, constraint on the activity of the UK Parliament. So held the Supreme Court unanimously on the devolution aspects and by a majority (8:3) on the need for an authorising Act, upholding the Divisional Court.
The majority considered there were two reasons why an Act was needed to trigger Art 50. First, the scheme of the European Communities Act 1972 created EU law, and the EU institutions, as a separate source of law. The effect of withdrawal would be the removal of this source, and such a fundamental legal change justified the conclusion that prerogative powers could not be invoked to withdraw from the EU Treaties. It was unrealistic to deny that, so long as that Act remained in force, the EU Treaties, EU legislation and the interpretations placed on those instruments by the Court of Justice were direct sources of UK law. Although the 1972 Act gave effect to EU law, it was not itself the originating source of that law. It was the “conduit pipe” by which EU law was introduced into UK domestic law; so long as the 1972 Act remained in force, its effect was to constitute EU law an independent and overriding source of domestic law. As a source of law, EU law was not to be compared with delegated legislation. The 1972 Act effectively operated as a partial assignment of legislative competences by Parliament to the EU law-making institutions (so long as Parliament willed it), rather than a statutory delegation of the power to make ancillary regulations. The 1972 Act could not be said to constitute EU legislative institutions the delegates of Parliament: they made laws independently of Parliament, and indeed they were doing so before the 1972 Act was passed. Secondly, and this was the reasoning the Divisional Court adopted, withdrawal would lead to changes in, and removal of, domestic rights acquired through that source pursuant to s.2 of the 1972 Act. It was a fundamental principle of the UK constitution that, unless primary legislation permitted it, the Royal prerogative did not enable ministers to change statute law or common law.
Further, ministers could not frustrate the purpose of a statute or a statutory provision, for example by emptying it of content or preventing its effectual operation. While Parliament in 1972 foresaw the variable nature and content of EU law – in its use of “from time to time” in s.2 – the majority rejected the argument that the ambulatory nature of s.2 revealed Parliament to have intended the continued existence of EU right in UK law as contingent on the UK’s continued membership. The Court further accepted that Parliament could not have intended that s.2 should continue to import the variable content of EU law into domestic law after the UK had ceased to be bound by the EU Treaties. However, while s.2 envisaged domestic law, and therefore the rights of UK citizens, changing as EU law varied, it did not envisage those rights changing as a result of ministers unilaterally deciding that the United Kingdom should withdraw from the EU Treaties. On the contrary: by the 1972 Act, Parliament endorsed and gave effect to the UK’s membership of what is now the EU under the EU Treaties in a way which was inconsistent with the future exercise by ministers of any prerogative power to withdraw from such Treaties. There was a vital difference between changes in domestic law resulting from variations in the content of EU law arising from new EU legislation, and changes in domestic law resulting from withdrawal by the UK from the EU. Withdrawal was fundamentally different from variations in the content of EU law arising from further EU Treaties or legislation. A complete withdrawal represented a change which was different not just in degree but in kind from the abrogation of particular rights, duties or rules derived from EU law. Rather than the Secretary of State being able to rely on the absence in the 1972 Act of any exclusion of the prerogative power to withdraw from the EU Treaties, as counsel had contended, the proper analysis was that, unless that Act positively created such a power in relation to those Treaties, it did not exist. It did not do so. Further, while it was true that ministers could avail themselves of the prerogative power to make and unmake EU Treaties, that was so only on the international plane. It was not so when they were also a source of domestic law. Bearing in mind the principle of legality – that Parliament should squarely confront what it was doing – and in light of the unusual nature of those Treaties and the Act’s unusual legislative history, the Court did not accept the argument that the constitutional arrangements and the EU rights introduced by the 1972 Act should only prevail from time to time and for so long as the UK government did not decide otherwise, and in particular did not decide to withdraw from the EU Treaties. The Secretary of State’s contention would have meant that ministers could have withdrawn even if there had been no referendum or indeed, at least in theory, even if any referendum had resulted in a vote to remain. Those were implausible propositions. Since there never had been a prerogative power to withdraw from the EU Treaties without statutory authority, it could only be created subsequently, either by the domestication of Article 50 in the European Union (Amendment) Act 2008 or the European Union Act 2011, if the express language of that statute unequivocally shows that the power was intended to be created. That was not the case. The 2016 referendum did not change the law in a way which would allow ministers to withdraw the UK from the EU without legislation. Unless and until acted on by Parliament, its force was political rather than legal. On the devolution issue, on which all agreed, by s.2 of the Scotland Act 2016 the UK Parliament was not seeking to convert the Sewel Convention into a rule which could be interpreted, let alone enforced, by the courts; rather, this legislative recognition of the convention was to entrench it as a convention. It was recognising the convention for what it is, namely a political convention, and effectively declaring that it was a permanent feature of the relevant devolution settlement. The UK Parliament would have needed to use other words if it were seeking to convert a convention into a legal rule justiciable by the courts.
In his dissent, Lord Reed (with whose analysis Lord Hughes and Lord Carnwath agreed) while accepting the importance in the UK’s constitutional law of the principle of Parliamentary supremacy held that that principle did not require that Parliament must enact an Act of Parliament before the UK could leave the EU. That is because the effect which Parliament itself had given to EU law in domestic law under the 1972 Act was inherently conditional on the application of the EU treaties to the UK, and therefore on the UK’s continued membership of the EU. The Act imposed no requirement, and manifested no intention, in respect of the UK’s membership of the EU. It did not, therefore, affect the Crown’s exercise of prerogative powers in respect of UK membership. The 1972 Act created a scheme under which the effect given to EU law in domestic law exactly matched the UK’s international obligations, whatever they may be. The rights were granted by Parliament in the 1972 Act and, further, were granted on the condition that they would expire in certain circumstances such as UK withdrawal. That being so, no further legislation was needed if those circumstances occurred. The rights would not be revoked by the Crown’s exercise of prerogative powers but by the operation of the Act of Parliament itself. Further, since the effect of EU law in the UK was entirely dependent on the 1972 Act, no alteration in the fundamental rule governing the recognition of sources of law had resulted from membership of the EU, or would result from notification under Art 50. EU law was not a source of law of the relevant kind, a source of law whose validity was not dependent on some other, more fundamental, source of law, but depended on the ultimate rule of recognition. EU law was entirely dependent on statute for its legal authority, which statute itself derived its authority from the rule of recognition identifying Parliamentary legislation as a source of law. That was confirmed by s.18 of the 2011 Act. It followed that Ministers were entitled to give notification under Art 50, in the exercise of prerogative powers, without requiring authorisation by a further Act of Parliament. There was no basis in the language of the 1972 Act for the distinction drawn by the majority between changes in domestic law resulting from variations in the content of EU law arising from new EU legislation, and changes resulting from withdrawal by the UK from the European Union. There was nothing in s.2(1) which demonstrated that Parliament intended to depart from the fundamental principle that powers relating to the UK’s participation in treaty arrangements were exercisable by the Crown, and where a statute was silent, that could rarely, if ever, justify inferring a fundamental change in the law.
In Lord Carnwath’s view, service of an Art 50 notice would not, and did not purport to, change any laws or affect any rights. It was merely the start of an essentially political process of negotiation and decision-making within the framework of that Article. While it was intended to lead in due course to the removal of EU law as a source of rights and obligations in domestic law, that process would be conducted by the Executive, but it would be accountable to Parliament for the course of those negotiations and the contents of any resulting agreement. Furthermore, whatever the shape of the ultimate agreement, or even in default of agreement, there was no suggestion by the Secretary of State that the process could be completed without primary legislation in some form (R (oao Miller) v Secretary of State for Exiting the European Union; In re Agnew (application for judicial review); In re McCord (Application for judicial review)  UKSC 5).
Following the Supreme Court judgment, the Secretary of State for Exiting the European Union made a statement in the House of Commons on the process for triggering Article 50 (Hansard HC Deb, 24 January vol 620, col 161). The Government’s White Paper “The United Kingdom’s exit from and new partnership with the European Union” (CM 9417) was published on 2 February.
The first report of the Commons Exiting the European Union Committee’s first report “The process for exiting the European Union and the Government’s negotiating objectives” (HC 815 14 January) called for transitional arrangements on security, foreign policy and justice; warned that a return to tariffs and other regulatory and bureaucratic impediments to trade would not be in the interests of UK or European businesses; urged the Government publish its White Paper before the middle of February; and urged both that the devolved governments be involved fully in the process, and that Parliament have a role in approving a final deal. On 1 February, the House of Lords Select Committee on the Constitution took evidence on the Government’s plans for its Great Repeal Bill, and on the same day, the Commons Procedure Committee launched an inquiry into the delegated powers likely to be claimed in the Bill. House of Commons Library Briefing Paper No. 7793 (21 November) also covered it: “Legislating for Brexit: the Great Repeal Bill”. A report by independent think tank The UK in a Changing Europe “Brexit and beyond: how the United Kingdom might leave the European Union” (1 November) concluded that the “Brexit process will test the UK’s constitutional and legal frameworks and bureaucratic capacities to their limits – and possibly beyond.” The report is here.
Confidentiality, freedom of information and data protection
Since the ECHR was adopted, the domestic laws of the overwhelming majority of Council of Europe member States, along with the relevant international instruments, had evolved to the point that there existed a broad consensus, in Europe (and beyond) on the need to recognise an individual right of access to State-held information in order to assist the public in forming an opinion on matters of general interest. That being so, the Grand Chamber held, it was appropriate to refine the scope of Art 10. It continued to consider that the right to freedom to receive information basically prohibited a Government from restricting a person from receiving information that others wish or may be willing to impart to him and that, in general, the right to receive information could not be construed as imposing on States positive obligations to collect and disseminate information of their own motion. Neither did Art 10 confer on individuals a right of access to information held by a public authority nor oblige the Government to impart such information to the individual. However, such a right or obligation might arise in two cases. First, where disclosure of the information had been imposed by a judicial order which had gained legal force and, secondly, in circumstances where access to the information was instrumental for the individual’s exercise of his or her right to freedom of expression, in particular the freedom to receive and impart information and where its denial constituted an interference with that right. So held the Grand Chamber in an application brought by M, a human rights NGO, arguing that a refusal by the Hungarian Courts to order police forces to disclose certain information constituted a violation of Art 10. The Grand Chamber outlined criteria, drawn from previous cases, that would help define the scope of the right to information: (i) the purpose of the person in requesting access to the information held by a public authority was to enable his or her exercise of the freedom to “receive and impart information and ideas” to others, with emphasis placed on whether the gathering of the information was a relevant preparatory step in journalistic activities or in other activities creating a forum for, or constituting an essential element of, public debate; (ii) the information, data or documents to which access was sought must generally meet a public interest test in order to prompt a need for disclosure. Such a need might exist where, inter alia, disclosure provided transparency on the manner of conduct of public affairs and on matters of interest for society as a whole and thereby allowed participation in public governance by the public at large; (iii) whether the person seeking access was a journalist, performed a role as a public watchdog or an NGO whose activities related to matters of public interest; (iv) the information sought should be “ready and available” rather than necessitating the collection of any data by the Government unless any anticipated difficulty of gathering information was generated by the authority’s own practice . On the facts, the information sought by the applicant NGO from the relevant police departments was necessary for the completion of the survey on the functioning of the public defenders’ scheme being conducted by it in its capacity as a non-governmental human-rights organisation, in order to contribute to discussion on an issue of obvious public interest. There had been an interference with the right in Art 10, one where, notwithstanding Hungary’s margin of appreciation, there was not a reasonable relationship of proportionality between the measure complained of and the legitimate aim pursued. There had been a violation (Magyar Helsinki Bizottság v Hungary, App no. 18030/11, ECtHR (GC) 8 November).
The Investigatory Powers Act received Royal Assent on 29 November, providing a new framework to govern the use and oversight of investigatory powers by law enforcement and the security and intelligence agencies. The Act brings together all of the powers already available to obtain communications and data about communications and introduces a ‘double-lock’ for interception warrants: following Ministerial authorisation, warrants cannot come into force until they have been approved by a Judicial Commissioner on judicial review principles, determining whether or not the warrant was necessary and whether the conduct that would be authorised by the warrant was proportionate to what was sought to be achieved. The Act now allows for obtaining and retaining communications data, such as internet connection records, for law enforcement to identify, for example, which websites or search terms a device has connected to or used. Specific exceptions for journalistic material are built in (ss.28-29). Targeted warrants may only be issued if it is necessary in the interests of national security, or for the purpose of preventing or detecting serious crime, or in the interests of economic well-being (s.20). The Act also makes provision for bulk interception, bulk acquisition, bulk equipment interference and bulk personal dataset warrants in Part 6. The Act creates a new oversight body, the Investigatory Powers Commissioner (in Part 8). The Act follows from a draft Bill, published in November 2015, and pre-legislative scrutiny by three Committees: the House of Commons Science and Technology Committee, the Intelligence and Security Committee of Parliament, and by a Joint Committee of both Houses of Parliament, covered in previous Current Surveys. The reports and draft Bill have been collated here.
EU law (in particular Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (OJ 2006 L 105, p. 54) read in the light of the Charter of Fundamental Rights) precluded national legislation that prescribed general and indiscriminate retention of data. So held the CJEU in joined cases against Sweden and the UK, in the latter case a preliminary reference in the context of a challenge to the Data Retention and Investigatory Powers Act 2014 (noted  PL 681). Case-law was settled: the protection of the fundamental right to respect for private life required that derogations from the protection of personal data should apply only in so far as was strictly necessary. Here, the retained data allowed very precise conclusions to be drawn concerning the private lives of data subjects, and as such had to be considered a particularly serious interference. Further, data where the users of electronic communications services were not informed of that fact was likely to cause people to feel that their private lives were the subject of constant surveillance. Consequently, only the objective of fighting serious crime was capable of justifying such interference. Where, as here, legislation prescribing a general and indiscriminate retention of data did not require there to be any relationship between the data being retained and a threat to public security and was not restricted to, inter alia, providing for retention of data pertaining to a particular time period and/or geographical area and/or a group of persons likely to be involved in a serious crime, such national legislation exceeded the limits of what was strictly necessary and could not be considered to be justified within a democratic society. While the directive did not preclude national legislation imposing a targeted retention of data for the purpose of fighting serious crime, such retention, with respect to the categories of data to be retained, the means of communication affected, the persons concerned and the retention period adopted, had to be limited to what was strictly necessary. National legislation had to be clear and precise and had to provide for sufficient guarantees of the protection of data against risks of misuse. It had to indicate in what circumstances and under which conditions a data retention measure might, as a preventive measure, be adopted. In particular, legislation had to be based on objective evidence as to make it possible to identify the persons whose data was likely to reveal a link with serious criminal offences, to contribute to fighting serious crime or to preventing a serious risk to public security. Not only did legislation have to require that access should be for one of the objectives referred to in the directive, but it had to lay down substantive and procedural conditions governing access to the retained data, conditions in turn that had to be based on objective criteria in order to define and limit the circumstances and conditions under which the competent national authorities were to be granted access. Access could, as a general rule, be granted, in relation to the objective of fighting crime, only to the data of individuals suspected of planning, committing or having committed a serious crime or of being implicated in one way or another in such a crime. However, in particular situations, where for example vital national security, defence or public security interests were threatened by terrorist activities, access to the data of other persons might also be granted where there was objective evidence from which it could be inferred that that data might, in a specific case, make an effective contribution to combating such activities. Further, it was essential that access should, except in cases of urgency, be subject to prior review carried out by either a court or an independent body. Where access to someone’s retained data had been granted, that person must be notified of that fact. Lastly, given the quantity and sensitivity of retained data and the risk of unlawful access to it, national legislation had to make provision for that data to be retained within the EU and for the irreversible destruction of the data at the end of the retention period (Judgment in Joined Cases C-203/15 Tele2 Sverige AB v Post-och telestyrelsen and C-698/15 Secretary of State for the Home Department v Tom Watson and Others CJEU 21 December).
The new Commissioner, Elizabeth Denham, delivered a speech at a lecture for the Institute of Chartered Accountants in England and Wales “GDPR and accountability” on 17 January, alongside the publication of new ICO practical and signposting guidance for organisations to help them prepare for the GDPR, which will apply in the UK from 25 May, including analysis of the key differences between GDPR and the DPA. Further details can be found here.
The Commons Public Administration and Constitutional Affairs Committee report “The Future of the Union, part two: Inter-institutional relations in the UK” (HC 839) was published on 8 December, here.
The Northern Ireland Assembly was dissolved on 26 January, and elections took place on 2 March, following the resignation from office on 9 January of the Deputy First Minister Martin McGuinness. Following a week of negotiations brokered by the Secretary of State for Northern Ireland at Westminster, McGuinness and Sinn Féin refused to nominate a replacement deputy. Under the terms of the power-sharing Good Friday Agreement, neither First Minister nor her deputy can remain in post alone for longer than a seven-day period. McGuinness had resigned in protest over the manner in which the First Minister Arlene Foster had handled a failed green energy scheme, the Renewable Heat Incentive which it was estimated had costs taxpayers almost £500m. At the time, Foster was Energy Minister but she had refused to step down temporarily pending the outcome of a preliminary investigation. At Westminster, the Northern Ireland Affairs Committee continued its inquiry into the future of the land border with the Republic of Ireland post Brexit, as well as implications of Brexit for cross-border policing and criminal justice co-operation.
Following the EU referendum, on 28 June the Scottish Parliament voted (with 92 in favour, none against and 31 abstentions) for a motion welcoming the overwhelming vote of the people of Scotland to remain in the European Union and mandating the Scottish Government to have discussions with the UK Government, other devolved administrations, the EU institutions and member states to explore options for protecting Scotland’s relationship with the EU and Scotland’s place in the single market. The debate can be found here. One consequence was the formation of Standing Council on Europe by the First Minister (on the same day, 28 June), a group of experts to advise the Scottish Government on securing Scotland’s relationship with the EU and comprising specialists in legal, financial, business and diplomatic matters. Another were two Scottish Government reports. The first, “Scotland’s Place in Europe” (20 December) arguing, given the strong vote in favour of remaining in the EU, that the UK as a whole should remain within the Single Market – through the EEA – and within the EU Customs Union or alternatively how, and why, Scotland could and should remain a member of the Single Market and retain some key benefits of EU membership even if the rest of the UK decided to leave, and lastly that in light of the removal of the rights and protections provided by EU law – and whatever the outcome of the Brexit negotiations – Scotland’s interests within the UK demand that the powers of the Scottish Parliament be fundamentally revisited. The paper is available here. The other was “Scotland: A European Nation” (21 November), outlining the historical, political and constitutional context that gave legitimacy to Scotland’s voice in the Brexit debate. The report is here. The Scottish Government’s consultation on a draft referendum Bill ran from 20 October until 11 January. The SNP had committed to such during the 2016 election campaign if there had been a significant and material change in the circumstances that prevailed in 2014, such as Scotland being taken out of the EU against the will of the people. At Westminster, the Scottish Affairs Committee continued its inquiry into Scotland’s place in Europe and heard evidence from Scottish Ministers and Officials (5 December) and its report “Demography of Scotland and the implications for devolution” (HC 82) was published on 30 November. At Holyrood, the Justice Sub-Committee on Policing continued its inquiry into stop and search, especially into the draft code of practice.
In Wales, the Welsh Government, in conjunction with Plaid Cymru through an official Liaison Committee, launched a White Paper “Securing Wales’ Future: Transition from the European Union to a new relationship with Europe” (23 January), drawing on the views of the European Advisory Group, appointed by the First Minister in summer 2016. It reflected the fact that a majority in Wales voted to leave the EU. It set out the main issues identified as vital for Wales as the UK moves to leave the EU and identifies the need for a constructive relationship with the UK Government as it made the transition towards a different relationship with Europe. There were six key areas which the Welsh Government believed needed addressing in negotiations: the Single Market and international trade, migration, finance and investment, constitutional and devolution issues, Wales’ social and environmental protections and values, and transitional arrangements. The Paper is here. The Assembly’s External Affairs and Additional Legislation Committee consultation on the implications for Wales of Britain exiting the European Union ran from 1 to 28 November. On 16 January, the Trade Union (Wales) Bill was introduced into the Assembly by the Cabinet Secretary for Finance and Local Government. The Bill proposes changes that dis-apply certain provisions of the UK Government’s Trade Union Act 2016 as they apply to devolved Welsh authorities: the 40% ballot threshold for industrial action affecting important public services; powers to require the publication of information on facility time and to impose requirements on public sector employers in relation to paid facility time; and restrictions on deduction of union subscriptions from wages by employers. The Bill is being considered by the Assembly’s Constitutional and Legislative Affairs Committee. At Westminster, on 24 January, MPs debated amendments made by the House of Lords to the Wales Bill. The Commons agreed with the Lords amendments and the Wales Bill received Royal Assent on 31 January. This makes permanent the Welsh Assembly and Welch Government; puts the convention about Westminster legislating on devolved matters into statutory form; further empowers the Welsh Ministers to make provisions about elections; establishes a super-majority requirement for certain protected subject-matters; and extends both executive and legislative competence, in the latter case over such matters as onshore petroleum, road transport, harbours and aspects of planning.
The preliminary findings of the Lammy Review into race and the criminal justice system were published on 16 November. The review commissioned an analysis paper looking at disproportionality in the criminal justice system. One finding was that for every 100 white women handed custodial sentences at Crown Courts for drug offences, 227 black women were sentenced to custody. For black men, this figure was 141 for every 100 white men. Further details can be found here.
A bus company’s policy in relation to the space on the bus reserved for wheelchairs was that a non-wheelchair user occupying it would be requested to move, but if the request was refused nothing more would be done. This policy constituted unjustified discrimination and was thus unlawful. So held the Supreme Court allowing P’s appeal and overturning the Court of Appeal that had held for F. The policy amounted to no more than a simple request without any further steps. Instead, where a driver who had made such a request concluded that a refusal was unreasonable, they should consider some further step to pressurise the non-wheelchair user to vacate the space. Depending on the circumstances, this might include rephrasing the request as a requirement (especially where the non-wheelchair user could move elsewhere in the bus) or even refusing to drive on for several minutes. However, the Court of Appeal was right to reject the Recorder’s judgment finding for P as this effectively mandated a policy that could lead to non-wheelchair users being ordered off the bus. An absolute rule that any non-wheelchair user must vacate the space would be unreasonable: there were many circumstances in which it could be unreasonable to expect a non-wheelchair user to vacate a space, and even more, to get off the bus, even where the space was needed by a wheelchair user. Even a qualified rule (i.e. that any non-wheelchair user must vacate if it is reasonable) implemented through mandatory enforcement would be likely to lead to confrontation with other passengers (not least where the non-wheelchair user vacating the space affected other travellers) and delay. Passengers themselves were not clearly subject to a statutory obligation to comply with a policy relating to the use of the space, and would not appear to be under such an obligation to get off the bus if they failed to do so. On the question of damages, the Court was divided. By a majority (4:3) the Court held P was not entitled to an award. The Recorder did not specifically consider whether, if F had simply required its drivers to be more forceful, there was a prospect that it would have made a difference in this case. It was therefore not possible to conclude that there would have been a real prospect that such an adjustment would have resulted in P not being placed in the disadvantage that he was, and so an award of damages was not possible (FirstGroup v Paulley  UKSC 4).
“Beyond One by Twenty-One”, the report by Sir John Parker into ethnic diversity among the UK’s corporate boards was launched by the Department for Business, Energy and Industrial Strategy on 2 November. Among its findings were that while 14% of the population identified as black and minority ethnic, only 1.5% of directors in FTSE100 boardrooms were UK citizens from a minority background. More than half of the FTSE 100 Boards were exclusively white. Further details here.
A rule that entitled children who could not share a bedroom because of disability to claim an extra bedroom (for the purposes of calculating housing benefit caps) but not adults, or that entitled an adult, but not children, to an extra bedroom for an overnight carer was manifestly without reason. So held the Supreme Court in a series of appeals and cross-appeals to decisions relating to the cap on housing benefit introduced by the Secretary of State under Regulation B13 of the Housing Benefit Regulations 2006 (SI 2006/2013). Reg B13 therefore breached the right not to be discriminated against in Art 14 when read with Art 8. Where however the need for an additional bedroom was not connected, or not directly connected, to their or a family member’s disability, then whilst there might be good reasons for them to receive state benefits to cover the full rent, it was not unreasonable for their claims to be considered on an individual basis under the Discretionary Housing Payments (DHP) scheme. In a joined case, by a majority (5:2, Lady Hale and Lord Carnwath dissenting) the Court held it was not unlawful on the facts for the Secretary of State to apply the same benefit cap to someone living in a two-bedroomed house that had been adapted under a sanctuary scheme (accommodation specially adapted to provide protection for women under severe risk of domestic violence). There was no automatic correlation between being in a sanctuary scheme and requiring an extra bedroom: the reason that A currently had an additional bedroom was that no two-bedroom properties were available when she moved. The fact that people may have strong reasons unrelated to the number of bedrooms, for wanting to stay in their property was taken account of through the DHP system. A did not have a valid claim for unlawful sex discrimination. Although the state had a positive duty to provide effective protection to victims of gender based violence, the means by which such protection was provided was not mandated and A had not established that Reg B13 would deprive her of a safe haven. Furthermore, there was no breach of the public sector equality duty (PSED) in any case. The Secretary of State had properly considered the potential impact of the housing benefit cap scheme on individuals with disabilities. Although the Secretary of State did not specifically consider the impact of Reg B13 on those within sanctuary schemes, he did address the question of gender discrimination. Lady Hale would have found for A. The state had a positive obligation to provide effective protection for victims of domestic violence. A failure to do so constituted discrimination as it had been internationally recognised that gender based violence was a form of discrimination against women. Sanctuary schemes provided such protection. A’s reduction in housing benefit put at risk her ability to stay there and therefore constituted discrimination. DHPs were not good enough to justify this discrimination; it was not acceptable for A to endure the additional difficulties and uncertainties involved in obtaining them. Neither was the PSED properly complied with; there had been no assessment of the impact of Reg B13 on victims of gender based violence; a disadvantage suffered by women who share a protected characteristic (R (oao Carmichael and Rourke) (formerly known as MA and others) v Secretary of State for Work and Pensions; R (oao Daly and others) (formerly known as MA and others) v Secretary of State for Work and Pensions; R (oao A) v Secretary of State for Work and Pensions; R (oao Rutherford) v Secretary of State for Work and Pensions  UKSC 58).
X is a mixed school with an Islamic ethos in which children between the ages of 9 and 16 were taught separately and segregated on the grounds of gender. X was placed in special measures following an OFSTED review. X sought judicial review to prevent publication of the unfavourable OFSTED report. One of the key factors for OFSTED had been the segregation of the sexes which was, in its view, without any educational justification. In the course of the judicial review, X argued that the practice of segregating on the ground of sex was not contrary to the relevant provisions of the Equality Act 2010. On this, the Administrative Court found for the school. Jay J ruled that, given that both girls and boys, as a group, were each denied the same opportunity of interaction with the opposite sex, it would be artificial to hold that each group had been discriminated against, in the sense of receiving treatment less favourable than the other. Further, there was no evidence presented that segregation particularly disadvantaged women, judicial notice being taken of the fact that women have been, and still are, the group with minority power in society. Lastly, O had argued that making separate but equal provision for boys and girls (or blacks and whites, or heterosexuals and lesbians and gay men etc.) could not be divorced from the historic and current societal treatment of the less powerful group such that segregation had the tendency to promote and to perpetuate social and cultural stereotypes about the inferior role of women in society, based on a long line of US authority starting with Brown v Board of Education  347 US 483. There were two answers to this: unlike in the US (and in South Africa), segregation in mixed schools in this country was not the practice of government; it could not be envisaged as any reflection of the mores and attitudes of wider society; it was only capable of being seen as a reflection of the mores, attitudes, cultures and practices of the faith groups who had been permitted to do it. The Court would be very slow to conclude that segregation in this Islamic school generated a feeling of inferiority as to the status of the female gender in the community. Some supporting evidence would be required, but none was available. Secondly, that argument would only be well-founded if it could be established that faith schools in general, and Islamic schools in particular, segregated the sexes because they regarded the female gender as inferior, and/or that girls should be separately prepared for a lesser role in society. O’s case had not gone as far as to assert that, that Islamic schools segregated because their religion (or their interpretation of it) viewed girls and women as second-class citizens, so the Court was not required to express a view on it. O had therefore not established that X (i) discriminated against its male and female pupils by denying them opportunities to interact with or learn from the opposite sex, and (ii) discriminated against its female pupils by treating them as inferior. There had been no argument as to whether X was in breach of its public sector equality duty under s.149 of the Equality Act 2010 by failing to promote equality of opportunity (X v Ofsted  EWHC 2813 (Admin)).
Art 23 of the Air Quality Directive (2008/50/EC), which relates to Air Quality Plans (AQPs), requires that Member States “shall ensure” that AQPs are established so as to achieve the relevant limit values. It also requires that the plan identifies measures “so that the exceedance period can be kept as short as possible”. The Secretary of State “must” draw up “and implement” an AQP “so as to achieve” the relevant value; and the plan “must” include measures “intended to ensure” compliance “within the shortest possible time”. On its proper construction, the Secretary of State was under a duty to aim to achieve compliance by the soonest date possible and had to choose a route to that objective which reduced exposure as quickly as possible. The Secretary of State also had to choose measures which maximised the prospect of achieving the target. Implicit in the obligation to ensure was an obligation to take steps which meant meeting the value limits was not just possible, but likely. That being so, the Secretary of State’s AQP, drawn up in 2015 (following Client Earth  UKSC 28), failed to comply with Art 23. The Secretary of State fell into error by fixing, for what was little more than administrative convenience, a projected compliance date of 2020 (and 2025 for London), thereby depriving herself of the opportunity to discover what was necessary to effect compliance by some earlier date and whether a faster route to lower emissions might be devised. She also fell into error by adopting too optimistic a model for future emissions. By the time the AQP was introduced, the assumptions underlying the assessment of the extent of likely future noncompliance had already been shown to be markedly optimistic. The AQP did not identify measures which would have ensured that the exceedance period would be kept as short as possible; instead it identified measures which, if very optimistic forecasts happened to be proved right and emerging data happened to be wrong, might achieve compliance. The AQP would accordingly be quashed (ClientEarth (No.2) v Secretary of State for the Environment, Food and Rural Affairs  EWHC 2740 Admin).
Freedom of Speech
On 1 November, in a written ministerial statement “Press Matters”, the Secretary of State for Media, Culture and Sport announced a 10-week public consultation on whether or not to bring into force s.40 of the Crime and Courts Act 2013 (designed to provide incentives for newspapers to join a recognised self-regulator) and on Part 2 of the Leveson inquiry. The consultation ended on 10 January: Hansard HC Deb 1 November vol 616 col 797.
Government and Civil Service
The Public Accounts Committee report “Managing government spending and performance” (HC 710, 23 November) concluded that Government still needed to act to improve the ability of Parliament and the public to scrutinise its plans and performance. There remained deep-seated problems that prevented government measuring performance and linking outcomes to funding and there was still no adequate approach in place to support the achievement of objectives and safeguard value for money across government. Single Departmental Plans (SDPs) while welcome, needed further development. The report is here.
The Environmental Audit Committee report “Sustainability and HM Treasury” (HC 181, 17 November) called for the Treasury to “green-check” all its decisions to minimise putting short term priorities over long term sustainability – potentially increasing costs to the economy in the future, and harming investor confidence. The Treasury should ensure Spending Reviews provided strong incentives for collaboration between departments on environmental matters; should incorporate new evidence on long-term environmental risks and benefits into its frameworks for assessing the value for money of government interventions; should increase transparency and accountability by providing publically available justifications for its decisions; and should work with other departments whose policies affect the environment to ensure the Government’s new industrial strategies promote sustainability. The report is here. The Women and Equalities Committee in its report “Equalities analysis and the 2015 Spending Review and Autumn Statement” (HC 825, 18 November) took the same view of spending plans. The Government must do more to demonstrate that it had fulfilled its obligations to assess the equalities impacts of future Spending Reviews, Budgets and Autumn Statements. The report is here.
The JCHR published “The human rights implications of Brexit” (HL 88/ HC 695, 19 December) here and continued its inquiries into the Government’s proposed derogation from the ECHR for certain alleged violations in theatre of war, and into human rights and business.
Immigration, extradition, deportation and asylum
There had been a violation of Art 5(1) by Italy in detaining three Tunisian refugees (who had fled by boat and been intercepted by Italian coastguard) in an Early Reception and Aid Centre (CSPA) on the island of Lampedusa. Italian law applying to the detention of irregular migrants was lacking in precision. That legislative ambiguity has given rise to numerous situations of de facto deprivation of liberty and the fact that placement in a CSPA was not subject to judicial supervision could not, even in the context of a migration crisis, be compatible with the aim of Art 5: to ensure that no one should be deprived of his or her liberty in an arbitrary fashion. The
deprivation of liberty thus did not satisfy the general principle of legal certainty and was not compatible with the aim of protecting the individual against arbitrariness. It could not therefore be regarded as “lawful” within the meaning of Art 5(1). So held the Strasbourg Grand Chamber in applications brought by the three refugees. Since the detention had no clear and accessible legal basis in Italian law, it followed that the Italian authorities were unable to inform the applicants of the legal reasons for their deprivation of liberty or thus have provided them with sufficient information to enable them to challenge the grounds for the measure before a court. There was thus a violation of Art 5(2). When they were served with refusal-of-entry orders, this was too belated (ten days after initial detention) to satisfy the condition of promptness. Similarly, in previous cases where detainees had not been informed of the reasons for their deprivation of liberty, the Court had found that their right to appeal against their detention was deprived of all effective substance. It followed here too leading to the conclusion that the Italian legal system did not provide the applicants with a remedy whereby they could obtain a judicial decision on the lawfulness of their deprivation of liberty. There had been a breach of Art 5(4). There was however no violation of Art 3, either arising from the conditions of their detention in the CSPA or on the two ships used to house them in Palermo harbour pending expulsion. While it was well-established in case-law that, having regard to the absolute character of Art 3, an increasing influx of migrants could not absolve a State of its obligations under that provision, and even treatment which was inflicted without the intention of humiliating or degrading the victim, and which stemmed, for example, from objective difficulties related to a migrant crisis, might entail a violation of Art 3, it would also be artificial to examine the facts of the case without considering the general context in which those facts arose, such as the situation of extreme difficulty confronting the Italian authorities at the relevant time. The major migration crisis that unfolded in 2011 following events related to the “Arab Spring was exceptional. At 51,573, arrivals at Lampedusa in 2011 were over hundred times more than in 2010, and over 20,000 than the previous highest figure of 31,252 in 2008. Italy was confronted with many problems as a result of the arrival of exceptionally high numbers of migrants and that during this period the Italian authorities were burdened with a large variety of tasks, as they had to ensure the welfare of both the migrants and the local people and to maintain law and order. On the last issue before it, the Grand Chamber found (by a majority of 16 to 1) that because the applicants underwent identification on two occasions, their nationality was established, and they were afforded a genuine and effective possibility of submitting arguments against their expulsion, there had been no violation of Art 4 of Protocol No. 4, the prohibition on the collective expulsion of aliens, and neither had there been a violation of Art 13 (Khlaifia v Italy App no. 16483/12, ECtHR (GC) 15 December).
The Home Affairs Committee report “Asylum Accommodation” (HC 637, 31 January) asserted that major reforms were needed to the current contract system for asylum accommodation. The Committee branded the state of some asylum accommodation provided by Government contractors a “disgrace” and it was “shameful” that very vulnerable people had been placed in such conditions. The report is here.
The Immigration Rules which had come into force in 2012 were a relevant and important consideration which the Upper Tribunal ought to have taken into account when assessing the proportionality of the interference with the appellant’s article 8 rights. So held the Supreme Court (by a majority of 6:1, Lord Kerr dissenting) in rejecting an appeal by A, a foreign criminal who had been sentenced to a period of imprisonment of at least 12 months, and had been served by the Home Secretary with an automatic deportation order under s.32(5) of the UK Borders Act 2007. The Secretary of State had found that A did not fall within any of the exceptions in s.33, which included breach of ECHR rights such as Art 8. The Rules were not law, but did have a statutory basis and required the approval of Parliament. It was within the margin of appreciation to adopt rules reflecting the assessment of the general public interest made by the Secretary of State and endorsed by Parliament. The Rules set out the Secretary of State’s assessment of the weight generally to be afforded to some of these factors. In particular, the Rules prescribed a presumption that the deportation of foreign criminals was in the public interest, except where specified factors were present which the Rules accepted outweighed that interest. Outside of those specified factors, the Rules stated that exceptional circumstances – that is, compelling reasons – were required to outweigh the public interest in deportation. As an appellate body, the Upper Tribunal’s decision making process was not governed by the Rules, but should nevertheless have involved their consideration. The Upper Tribunal was required to make its own assessment of the proportionality of deportation, on the basis of its own consideration of the factors relevant to the particular case, and application of the relevant law. But in doing so, it was required not to disregard the decision under appeal. Where the Secretary of State had adopted a policy in relation to the assessment of proportionality, set out in the Rules and endorsed by Parliament, the Upper Tribunal should give considerable weight to that policy. In this case that policy was that a custodial sentence of four years or more represented such a serious level of offending that the public interest in the offender’s deportation almost always outweighs countervailing considerations of private or family life. Lord Kerr would have allowed the appeal. He concluded that the application of the Rules, and their prescription of the weight to be given to the public interest in the deportation of foreign criminals, were not compatible with the balancing exercise that had to be undertaken in considering the relevant factors arising under Art 8 in any particular case. It had been sufficient for the Upper Tribunal to take into account those relevant factors. Undue or unique reliance on the Rules, at the expense of a comprehensive survey of the pertinent Art 8 factors was not appropriate (R (oao Hesham Ali) v Secretary of State for the Home Department  UKSC 60).
While s.3C of the Immigration Act 1971 extended a person’s leave to remain pending determination of an application to vary the period of leave, so long as the application was made before the original leave has expire, that did not apply to applications made in time, but which were procedurally defective. So held the Supreme Court in joined applications by M, I and E, each of whom were appealing a Court of Appeal holding that the Home Secretary was entitled to treat their leave as having expired, in each case because they had not complied with immigration rules relating to the application to vary leave: M’s application was rejected for non-payment of the fee when the Secretary of State had been unable to take the £295 application fee from his bank; I paid a lower fee, unaware that the fees had recently been increased and E failed to make and attend an appointment to provide biometric data, as required by regulations made under power in s.5 and s.7 of the UK Borders Act 2007. Under ordinary principles of statutory interpretation, starting from the natural meaning of the words in their context, the Court of Appeal reached the correct conclusion. There was no ambiguity in the words of the regulations: if an application was not accompanied by the specified fee, it was “not validly made”. An application not validly made can have no substantive effect (R (oao Mirza) v Secretary of State for the Home Department; R (oao Iqbal) v Secretary of State for the Home Department; R (oao Ehsan) v Secretary of State for the Home Department  UKSC 63).
In a written ministerial statement to the House (Hansard HC Deb 31 October vol 616, col 21WS) the Home Secretary announced there would not be an independent review or statutory inquiry into the policing at Orgreave coking plant, in June 1984, during the Miners’ Strike because there would be very few lessons for the policing system today to be learned from any review of the events and practices of three decades ago. The following day there was an urgent question followed by a debate: Hansard HC Deb 1 November vol 616, col 781.
Andrew Baker QC was appointed to the High Court with effect from 1 November consequential to the retirement of Sir Andrew Smith, and was assigned to the Queen’s Bench Division.
The Parliamentary and Health Service Ombudsman Annual Report “Complaints about UK Government departments and agencies and some UK public Organisations” was published on 21 December. It contains a summary of key statistics collected about the
complaints handled, and the investigations undertaken in 2015-16. About 18% of all investigations were into government departments (and 82% into the NHS), a slight decrease from 2014/15. There was an upward trend in poor communication as a factor in the complaints that were upheld. Departments failed to pick up on clusters of issues that were raised through complaints and therefore failed to identify potential problems
with service delivery such as (as reported in  PL 153) in relation to the DVLA assessing fitness to drive. In just over a third of the complaints that were upheld, people simply wanted a proper apology or a decision to put things right. There is more public organisations needed to do to improve people’s experience of making a complaint. A significant number of complaints about discretionary decisions, including in relation to DWP’s Access to Work programme and visa decisions made by UK Visas and Immigration, were upheld.
The House of Lords Constitution Committee report “English Votes for English Laws” (HC 61) was published on 2 November: here.
Other Committee reports included:
Three of the four annual national PEEL reports were published: PEEL Efficiency (3 November) examining how well forces understand the demand for their service and how well they match their resources to that demand, with an assessment of their efficiency; PEEL Leadership and PEEL Legitimacy (both on 8 December). The former examined how well forces understood, developed and displayed leadership, and provided an assessment of how well led they are. The latter looked at the extent to which forces treated people with fairness and respect; the extent to which they ensured their workforces act ethically and lawfully; and the extent to which those workforces themselves felt they had been treated with fairness and respect by the forces.
The Policing and Crime Act 2017, which received Royal Assent on 31 January, makes provision for emergency services collaboration, about complaints, discipline and inspection, including empowering certain bodies to make super-complaints to HMIC if there is or appears to be significant harm to the interests of the public. It also amends or extends certain police powers, including as to bail, biometric data and general powers in PACE. The Act also covers maritime enforcement in both Scotland and Northern Ireland, contains provisions relating to alcohol, firearms and pyrotechnics, ands makes changes to provisions about Police and Crime Commissioners. It introduces the offence of failing to state one’s nationality (s.159) when arrested under the UK Borders Act 2007, doubles the maximum sentence for offences of putting people in fear of violence, and introduces posthumous pardons, on certain conditions, for those convicted of certain now abolished same-sex offences (ss.164-172).
Prisoners and mental health detainees
Against a background of nearly half of adult prisoners being reconvicted within one year of release, the Ministry of Justice and the National Offender Management Service published “Prison safety and reform” (Cm 9350, 3 November) with the aim of placing rehabilitation of prisoners squarely alongside safety, security and cost effectiveness as one of the key purposes of prison. The White Paper sets out the steps the government will take to make prisons a place of safety and reform. These include: taking immediate action to address threats to prison security and change the culture in prisons – investing additional funding and changing ways of working so offenders would be matched with named, dedicated officers with the appropriate training and ability to offer the support needed; overhauling the entire prison system and setting in place a clearly defined legal framework for prisons to operate in – putting in place a new trigger for emergency intervention by the Justice Secretary into failing prisons and giving greater bite to the inspection regime; setting clear standards of expectations from prisons and giving all governors the authority to decide how they deliver these services; creating a modern, fit for purpose estate which offers hope, empowerment and opportunities to offenders.
There was no breach of either Art 7 or Art 14 in sentencing D, following conviction of various violent assaults, to an IPP (an indeterminate sentence of imprisonment for public protection) rather than an extended determinate sentence (EDS) or an extended sentence for public protection (EPP) under transitional provisions. So held the Supreme Court, Lord Hughes giving judgment for the Court. IPPs and EPPs were abolished in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and replaced by EDS but transitional arrangements preserved IPPs for those convicted but not sentenced by 3 December 2012. This was the case for D. The Commencement Order setting out transitional provisions for the introduction of LASPO was lawful. It did not breach Article 7 ECHR, it was legitimately made and was rational, and if it was discriminatory (which was doubtful) then it was justifiably so (R v Docherty  UKSC 62).
Following the clarification provided by the Court of Appeal in McLaughlin  EWCA Crim 188, a whole life sentence could now be regarded as reducible, in keeping with Article 3 of the Convention. So held the Strasbourg Grand Chamber (by a majority of fourteen votes to three) upholding the earlier Chamber decision ( PL 496) in an application brought by H, a convicted murderer and rapist, sentenced in 1984 to a whole life tariff. The McLoughlin decision had dispelled the lack of clarity identified in Vinter (2012) 55 EHRR 34 arising out of the discrepancy within the domestic system between the applicable law and the published official policy. In addition, the Court of Appeal had brought clarification as regards the scope and grounds of the review by the Secretary of State, the manner in which it should be conducted, as well as the duty of the Secretary of State to release a whole life prisoner where continued detention could no longer be justified on legitimate penological grounds. In this way, the domestic system, based on statute (s.30 of the Crime (Sentences) Act 1997 Act and the HRA), caselaw and published official policy (the Lifer Manual) no longer displayed the contrast that the Court identified in Vinter. Further specification of the circumstances in which a whole life prisoner might seek release, with reference to the legitimate penological grounds for detention, may come through domestic practice. The statutory obligation on national courts to take into account the Art 3 case-law as it might develop in future provided an additional important safeguard. The primary responsibility for protecting the rights set out in the Convention rested with the domestic authorities and here the Court of Appeal drew the necessary conclusions from the Vinter judgment and, by clarifying domestic law, addressed the cause of the Convention violation (Hutchinson v UK App no. 57592/08, ECtHR (GC) 17 January 2017).
Security and Intelligence
The Honourable Mrs Justice Elisabeth Laing was appointed to chair the SIAC, POAC and PAAC from 19 January, in succession to Lord Justice Flaux on his elevation to the Court of Appeal in December 2016
The Intelligence and Security Committee of Parliament submitted its report “Lethal Drone Strikes in Syria” to the Prime Minister on 16 December and is being redacted for publication in 2017. On 15 September, the Intelligence Services Commissioner produced a supplementary report to his Annual Report to 2015 (of 8 September), on concerns raised by the Intelligence and Security Committee of Parliament about the government’s responsibilities in relation to partner counter-terrorism units overseas (HC 458 SG/2016/95).
The Northern Ireland High Court granted a declaration under s.6 of the Justice and Security Act 2013 that judicial review proceedings brought in relation to the Omagh bombing in 1998 (in which the victims’ families were arguing that there had been no or no adequate investigation into the issue of the preventability of the deaths so as to satisfy Art 2 of the European Convention on Human Rights) be closed material proceedings (Gallagher, Re Judicial Review  NIQB 95).
The legal power to capture and detain enemy combatants for imperative reasons of security was implicitly conferred on British forces in Afghanistan by various Security Council resolutions (though no view was expressed on customary international law as a possible source). Furthermore, this entitled detention for longer than 96 hours (individual states participating in ISAF not being bound by ISAF’s 96-hour policy) and outside the six permitted grounds for detention in Art 5(1)(a)-(f) provided there was both protection for the individual from arbitrariness and compliance with the procedural provisions of Art 5, in particular article 5(4). So held the Supreme Court by a majority (7:2, Lord Reed and Lord Kerr dissenting) in joined cases brought by SM and AW, detained in British army facilities for three and half months and six and half weeks respectively. The procedural aspects of Art 5 fell to be adapted where this was necessary in the special circumstances of armed conflict, provided that minimum standards of protection existed to ensure that detention was not imposed arbitrarily. The minimum standard of protection was a standard equivalent to that imposed by Arts 43 and 78 of the Fourth Geneva Convention. In the Court’s view, there was no reason to limit Hassan v UK  BHRC 358 to, first, detention during international armed conflict rather than (as here) non-international armed conflict nor, secondly, to detentions under international humanitarian law rather than (again, as here) under the authority of a Security Council Resolution. Thus, while Hassan did not add a notional seventh ground of permitted detention to those listed at Art 5(1)(a) – (f), namely military detention in the course of armed conflict, the recognition that the sub-paragraphs could not necessarily be regarded as exhaustive when the Convention was being applied to such a conflict (because their exhaustive character reflected peacetime conditions) meant that where the armed forces of a Convention state were acting under a mandate from the Security Council to use all necessary measures, Art 5(1) did not prevent them detaining persons for imperative reasons of security.
A majority considered that the detention of SM did not fall within any of the six specified grounds in Art 5(1), during the second period of his detention, a period of a little over three weeks when he was being interrogated. Three Justices considered that that issue should be remitted to trial. A majority of eight held that there should be remitted to trial two further issues (i) whether intelligence exploitation was in fact the sole ground for detention during that second period or whether imperative reasons of security were not also a concurrent reason, justifying detention under Art 5 read with and modified as necessary under Hassan having regard to the relevant Security Council resolution and (ii) whether SM’s detention during the third period of over two months (pending transfer to the Afghan authorities) fell within Art 5(1)(c) or was again justified by imperative reasons of security under Article 5. The question of Art 5(3) compatibility also had to be left for trial. Under Art 5(4), the minimum standard of protection from arbitrariness equated to that imposed by Arts 43 and 78 of the Fourth Geneva Convention: an impartial body carrying out initial and regular reviews in accordance with a fair procedure. Fairness required that SM be given an effective means of challenging his detention. A majority held that there was a breach of the requirement to provide “sufficient guarantees of impartiality and fairness to protect against arbitrariness” in two respects: the procedure lacked independence and it failed to provide for the participation of the detainee. A minority (Lord Mance, Lord Hughes and Lord Neuberger) considered these were matters to be remitted for trial. Notwithstanding that, a finding of breach of the procedural standards required by Art 5(4) would not necessarily entitle SM to damages. A different review process might well have led to no more than SM remaining in UK custody or being transferred slightly to Afghan custody. Lord Reed and Lord Kerr, dissenting, were of the view that the Security Council Resolutions should be interpreted as authorising detention only in circumstances specified in Art 5(1)(a)-(f). Neither Conventional (i.e. treaty-based) nor customary international humanitarian law provided authority for detention in a non-international armed conflict. The Court should depart from the decision of the House of Lords in Al-Jedda v Secretary of State for Defence  UKHL 58 that the Security Council resolution imposed an obligation to detain in circumstances other than those listed in sub-paras (a) to (f) of Art 5(1) of the Convention and Hassan should not be interpreted as warranting the modification of Art 5(1) so as to permit detention in circumstances not falling within sub-paras (a) to (f), specifically for imperative reasons of security. SM’s detention being authorised neither by a Resolution nor by international humanitarian law, was in violation of Art 5(1) (Al-Waheed v Ministry of Defence; Serdar Mohammed v Ministry of Defence  UKSC 2).
The Independent Reviewer of Terrorism Legislation Report “The Terrorism Acts in 2015” was published on 2 December. This was the last annual report by the current Reviewer David Anderson QC, who departed in February. The report noted how the UK escaped largely unscathed in 2015 from, by recent standards, a particularly bad year for terrorism in Western Europe but that the threat remains severe: attack plots continued to be disrupted, and (in Northern Ireland) to get through. While Brexit seemed likely to end UK leadership in the formulation of EU security policy and laws, there were strong operational reasons for maintaining access to EU mechanisms that others might devise and develop. Eight groups had been proscribed since the start of 2015. The Terrorism Act power to stop and search without suspicion was once again not used and the use of police powers to examine people at ports and airports declined by two-thirds between 2009/10 and 2015/16, but continued to be productive. Terrorism-related arrests in Great Britain were stable (280 in 2015), but at a higher rate than the long-term average. Terrorism Act arrests were below average in Northern Ireland (149 in 2015/16) but remained numerous as a proportion of the population and continued to result in a poor charging rate. The report analysed the principal convictions in the 56 terrorist trials that occurred in Great Britain in 2015. There was discussion of the legal treatment of radicalisers. Room for improvement was identified in 21 specific recommendations but the overall picture was of appropriately strong laws, responsibly implemented, less intrusive than six years ago and with a good recent record of surviving challenge against European human rights standards. Despite the broad discretions that characterised UK counter-terrorism law, the Reviewer rejected the false narrative of power-hungry security services, police insensitivity to community concerns, and laws constantly being ratcheted up to new levels of oppression. It concluded with a guest chapter by Professor Clive Walker on “Foreign Terrorist Fighters and UK Counter-Terrorism Laws” and text of the Reviewer’s short speech to the Parliamentary Assembly of the Council of Europe on Terrorism and Tolerance. The report is here.
“Acts contrary to the purposes and principles of the United Nations” within the meaning of the directive on refugee status (Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12)) as a ground for exclusion of refugee status was not confined to the actual perpetrators of terrorist acts, but could also extend to persons who engaged in activities of recruitment, organisation, transportation or equipment of individuals who travelled to a State other than their States of residence or nationality for the purpose of, inter alia, the perpetration, planning or preparation of terrorist acts. So held the CJEU in a case involving L, a Moroccan national, convicted in Belgium for his participation in the activities of an Islamic terrorist group, including in particular ‘active participation in the organisation of a network for sending volunteers to Iraq’ by the fraudulent transfer of passports. L later applied to the Belgian authorities for refugee status. He claimed that he feared persecution in the event of his being returned to Morocco because of the likelihood that he would be regarded by the Moroccan authorities as a radical Islamist and jihadist, following his conviction in Belgium. That application for asylum was rejected (Commissaire général aux réfugiés et aux apatrides v Mostafa Lounani Judgment in Case C-573/14, 31 January).
David Mead is Professor of UK Human Rights Law at the University of East Anglia. He is also Current Developments Correspondent for the UKCLA Blog, and Current Survey Editor of Public Law.
(Suggested citation: D. Mead, ‘Public Law Current Survey (Nov 2016 – Jan 2017)’ UK Const. L. Blog (28th Mar 2017) (available at https://ukconstitutionallaw.org/))