Editors’ note: The Public Law Current Survey was originally published in Public Law and is reprinted here with the generous permission of that journal.
A report by a sub-Committee of the Commons Defence Committee (“Who guards the guardians? MoD support for former and serving personnel” HC 109 10 February) was critical of the Iraq Historic Allegations Team (IHAT) and the way in which it carried out investigations.
The Government’s White Paper “The United Kingdom’s exit from and new partnership with the European Union” (CM 9417, February) set out the 12 principles that would guide the Government during negotiations to secure the UK’s exit from the EU: providing certainty and clarity; taking control of our own laws; strengthening the Union; protecting our strong historic ties with Ireland and maintaining the Common Travel Area; controlling immigration; securing rights for EU nationals in the UK and UK nationals in the EU; protecting workers’ rights; ensuring free trade with European markets; securing new trade agreements with other countries; ensuring the United Kingdom remains the best place for science and innovation; cooperating in the fight against crime and terrorism; and delivering a smooth, orderly exit from the EU. The White Paper was the subject of the Exiting the European Union Committee report “The Government’s negotiating objectives: the White Paper” (HC 1125 4 April), to be read alongside its earlier report “The Government’s negotiating objectives: the rights of UK and EU citizens” (HC 1071 5 March).
The European Union (Notification of Withdrawal) Act 2017, conferring on the Prime Minister the power to notify, under Article 50, the UK’s intention to withdraw from the EU was passed on 16 March. This Act was necessary following the Supreme Court’s decision in Miller that Article 50 could not lawfully be triggered using the prerogative. At 2nd Reading, the vote was 498 to 114, with 47 Labour MPs (when party policy was not to oppose its passage), 50 SNP MPs and seven Liberal Democrats voting against, as well as the sole Conservative Kenneth Clarke. Two amendments were passed by the House of Lords: to protect EU nationals living in the UK regardless of the rights of UK nationals continuing to live in the EU, and a requirement that Parliament approve the outcome of negotiations with the European Union as and when concluded. A third proposed amendment, calling for a 2nd referendum on any concluded terms, was not passed. Both amendments were overturned in the Commons. On 28 March, under authority of the Act, the formal notification of withdrawal was begun, in the form of a letter given to the President of the European Council by the UK’s Permanent Representative to the European Union. On 31 March, the European Council published its draft negotiating guidelines, outlining the EU’s core principles, concluded at a special meeting of the Council on 29 April, full details of which can be found here. The Council reiterated its wish to have the UK as a close partner in the future, and further reiterated that any agreement would have to be based on a balance of rights and obligations, and ensure a level playing field. Preserving the integrity of the Single Market excluded participation based on a sector-by-sector approach. A non-member of the Union, not living up to the same obligations as a member, could not have the same rights and enjoy the same benefits as a member. In this context, the European Council welcomed the recognition by the British Government that the four freedoms of the Single Market were indivisible and that there could be no “cherry picking”. The Union would preserve its autonomy as regards its decision-making as well as the role of the CJEU.
On 30 March, the Government published plans for its Great Repeal Bill in its White Paper “Legislating for the United Kingdom’s withdrawal from the European Union” (Cm 9446). The Lords’ Select Committee on the Constitution report “’The ‘Great Repeal Bill’ and delegated powers” report (HL 123) was published on 7 March, concluding that this was likely to involve a massive transfer of legislative competence from Parliament to Government, raising constitutional concerns of a fundamental nature, concerning as it did the appropriate balance of power between the legislature and executive. It recommended that Parliament consider how best to limit and to exercise oversight of the Government’s use of these extensive delegated powers, perhaps implementing a general restriction on the use of delegated powers granted under the ‘Great Repeal Bill’. Further, it suggested that a general provision be placed on the face of the Bill to the effect that the delegated powers granted by the Bill should be used only: ‘so far as necessary to adapt the body of EU law to fit the UK’s domestic legal framework’ and ‘so far as necessary to implement the result of the UK’s negotiations with the EU’. Its report on “The European Union (Notification of Withdrawal) Bill” (HL 119) on 23 February cautioned against seeing the fast-tracking of legislation as setting a precedent for future constitutional bills, such as the ‘Great Repeal Bill’ and other Brexit-related legislation.
Various parliamentary reports were published:
- The Foreign Affairs Committee report “Article 50 negotiations: Implications of ‘No Deal’” (HC 1077, 12 March) explored in detail the full potential implications of “no deal” after two years of negotiations. Matters it covered included ongoing disputes over the exit ‘bill’; uncertainty and confusion for UK citizens in the EU and EU citizens in the UK; trading on World Trade Organisation (WTO) terms; a ‘regulatory gap’ and legal uncertainty in areas not covered by the “Great Repeal Bill”; uncertainty over UK participation in the EU’s common foreign and security policy; and the sudden return of a customs border between Northern Ireland and the Republic of Ireland.
- The Justice Select Committee report “Implications of Brexit for the justice system” (HC 750 22 March) covered criminal justice – extradition arrangements, investigative resources, information sharing, negotiating UK-EU cooperation; civil justice – family law, commercial law, the CJEU; and legal services.
- The Commons Public Administration and Constitutional Affairs Committee published “Lessons learned from the EU Referendum” (HC 496 12 April) covering referendums and representative democracy in the UK; the regulatory framework; the Electoral Commission and the administration of the referendum; and the machinery of government during the referendum.
- The Commons European Scrutiny Committee 38th report was “Brexit and the European Scrutiny System in the House of Commons” (HC 1124, 7 April).
- The Lords EU Home Affairs sub-Committee 14th Report was “Brexit: UK-EU movement of people” (HL 121, 6 March), matched in Scotland by the Scottish Parliament’s Culture, Tourism, Europe and External Relations Committee 3rd Report (6 February) “EU Migration and EU Citizens’ Rights”, while on 19 April, the Lords EU Justice sub-committee commenced (and quickly ended) an inquiry into the effect of Brexit on consumer rights protection and the Lords Energy and Environment sub-committee 12th Report was “Brexit: environment and climate change” (HL 109, 14 February).
Confidentiality, freedom of information and data protection
The Information Commissioner Office has undertaken public consultation on its draft GDPR Consent guidance on the issue of consent surrounding the use of data, with a view to publishing a final version in June.
On 10 January, the European Commission published its evaluation and review of Directive 2002/58 on privacy and the electronic communication sector, alongside a new proposed Regulation on Privacy and Electronic Communications (with a legal base in Article 16 and Article 114 of the Treaty on the Functioning of the European Union, TFEU). Details are here. On the same day, the Commission also published a Communication to the European Parliament, the Council and the European Economic and Social Committee and Committee of the Regions: “Building a European Data Economy” (Co (2017)9 Final). This latter was considered by the European Scrutiny Committee on 8 March in its 34th Report (HC 71-xxxii, 14 March). The Lords EU Home Affairs sub-Committee continued its inquiry into the EU Data Protection package by holding a series of evidence sessions in February, March and April.
There was no requirement in EU Law under Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995, L 281, p. 31) that Member States guarantee that natural persons whose data were included on a company register have the right to obtain, after a certain period of time from the dissolution of the company, the erasure of personal data concerning them (Camera di Commercio, Industria, Artigianato e Agricoltura di Lecce v Salvatore Manni, Case C-398/15 CJEU 9 March).
- Northern Ireland
The results of the Assembly elections, held on 2 March, were Democratic Unionist Party 28 seats (28.1% of the first preference vote), Sinn Féin 27 seats (27.9%), Social Democratic and Labour Party 12 seats (11.9%), Ulster Unionist Party 10 seats (12.9%), Alliance Party 8 seats (9.1%), Greens 2 seats (2.3%), Traditional Unionist Voice 1 seat (2.6%), Independent 1 seat (1.8%) and People Before Profit Alliance 1 seat (1.8%). It is the first time since 1998 that the various Unionist parties have not had an overall majority. Immediately after the election, Sinn Féin reiterated its pledge that it would not return to power while Arlene Foster remained DUP leader and thus as first minister until her role in the controversial heating scheme was resolved, something that had been the cause of the election and fall of government in the first place. As of early May, no power-sharing devolved government had been formed. In order to prolong the possibility of fruitful talks, and given the national general election on 8 June, on 27 April, the Westminster Parliament passed emergency legislation, the Northern Ireland (Ministerial Appointments and Regional Rates) Act 2017, extending the deadline until 29 June. On 21 March, former deputy First Minister and Sinn Féin leader Martin McGuinness died after a short illness. In mid-March, the new leader, after the elections, called for a referendum on Irish unity “as soon as possible” given the increased urgency caused by Brexit. At Westminster, the Northern Ireland Affairs Committee published “HM Government support for UK victims of IRA attacks that used Gaddafi-supplied Semtex and weapons” (HC 49, 2 May) and “Electricity sector in Northern Ireland” (HC 51, 1 May).
The requirement of automatic disclosure of earlier criminal convictions as part of a vetting process for employment breached Article 8 on the ground that it was arbitrary: the statutory scheme created in s.52 of the Protection of Vulnerable Groups (Scotland) Act 2007 offered no mechanism for testing whether it would in any instant case be proportionate to disclose the fact of previous conviction. So held the Court of Session, Outer House (Lord Pentland) giving judgment for AP that automatic disclosure of a conviction almost 28 years before (when AP was 14) for lewd and libidinous practices (he was caught masturbating behind a bush) dealt with at a Children’s Hearing when applying for regulated work (as a care assistant in a care home) constituted an unlawful and unjustifiable interference with AP’s Article 8 rights. Since no account could be taken of the many cogent factors in favour of non-disclosure that arose in the circumstances of the present case, the scheme as it operated in AP’s case, was not “in accordance with the law”. It was also disproportionate: no consideration was given to whether the deemed conviction in AP’s case had any rational connection to the aim of protecting vulnerable adults in a care home environment. Judgment reserved on the question of specific remedy (P (AP) v Scottish Ministers  CSOH 33).
Under Scottish law, anyone charged with having sex with a minor has a defence if they reasonably believed the other person was aged over 16 but as a matter of law (s.39(2)(a)(i) of the Sexual Offences (Scotland) Act 2009) that defence is unavailable if they have previously been charged with a relevant sex offence. The Supreme Court held that, while s. 39(2)(a)(i) did not come within the ambit of Article 6, it imposed a disproportionate burden here. Given that the range of earlier relevant sexual offences included offences where age was not a relevant constituent element of the crime, they could not, contrary to the government’s case, comprise a warning or notice of the consequences of repetition, justifying later removal of the defence (AB v Her Majesty’s Advocate (Scotland)  UKSC 25).
The decision to impose a general ban on smoking in Scottish State Hospitals was unlawful. So held the Supreme Court in a challenge by M who suffered from a mental disorder and was detained in a State Hospital following conviction for a number of offences. Although the decision to ban fell within the general NHS management power, it also engaged the separate duty to inform a patient when any measure was to be applied to them and to make a record of any searches (contained in regulations dating from 2005). Furthermore, separate legislation required hospital boards to discharge their functions in a manner that involved the minimum restriction on the freedom of patients that was necessary in the circumstances. There was no evidence, the Court held, that the board had either considered the principle of minimum restriction or complied with their duty in the 2005 regulations. The ban also breached M’s rights under Article 8 as they were not in accordance with law, though the Court decided the ban would have been a proportionate response. It pursued the legitimate aim of the protection of public health and was rationally connected to that aim. Faced with the difficulties of implementing a partial ban, the Board did not act disproportionately in imposing the comprehensive smoking ban when it did (McCann v The State Hospitals Board for Scotland (Scotland)  UKSC 31).
The Scottish Parliament passed, by 69 votes to 59, an SNP motion calling for a 2nd referendum in light of the Brexit vote. The debates took place on 21 and 22 March, with the vote on 28 March. The debates can be found here and here.
Following joint meetings on 13 and 20 March between the Scottish Affairs Committee at Westminster and the Scottish Parliament’s Social Security Committee, a jointly agreed letter was sent to the Secretary of State for Work and Pensions urging that a clear plan was needed for the successful transfer of welfare powers. The Scottish Government introduced the Domestic Abuse (Scotland) Bill to the Scottish Parliament on 17 March, creating a general offence of domestic abuse, intended to encompass the wide range of conduct that could make up a pattern of abusive behaviour within a relationship: both physical violence and threats which could be prosecuted using the existing criminal law and other behaviour amounting to psychological abuse or coercive control which either could not be or, at least, could not easily be prosecuted using existing criminal laws. This latter group is planned to capture such scenarios as making a partner or ex-partner dependent on or subordinate to the perpetrator; isolating a partner or ex-partner from friends, relatives or other sources of support; controlling, regulating or monitoring the day-to-day activities of a partner or ex-partner; depriving a partner or ex-partner of, or restricting their freedom of action; or frightening, humiliating, degrading or punishing a partner or ex-partner. The draft Bill is being considered by MSPs on the Scottish Parliament’s Justice Committee. On 19 January, the Cabinet Secretary for Environment, Climate Change and Land Reform laid before Parliament a draft of the Climate Change Plan 2017-2032, the third report on proposals and policies (RPP3) for meeting Scotland’s annual greenhouse gas emissions targets that the Scottish Ministers are obliged to lay before the Scottish Parliament in accordance with the requirements in s.35 of the Climate Change (Scotland) Act 2009. The plan is here.
At Westminster, the Welsh Affairs Committee published “Brexit priorities for Wales: Committee’s initial findings” (10 March), as part of its inquiry into the implications for Wales of the EU referendum result. In Wales, the External Affairs and Additional Legislation Committee of the Assembly published (27 January) “Implications for Wales of leaving the European Union” following its consultation that ended in late November ( PL 298).
The Land Transaction Tax and Anti-avoidance of Devolved Taxes (Wales) Bill, introducing Wales’ first new tax in almost 800 years – land transaction tax – was passed by the National Assembly for Wales on 4 April. Land transaction tax will replace stamp duty land tax and will come into effect on April 1, 2018, with the revenue raised helping to fund public services in Wales. From 31 January to 11 April, the Welsh Government consulted on its White Paper ‘Reforming local government: Resilient and renewed”, with proposals covering arrangements for regional working, the strengthening of the role of councils and councillors, providing the framework for future voluntary mergers, and detailing the role of community councils, as well as seeking views on reform to the electoral system for local government in Wales. It also published (7 March) “Making good decisions”, guidance designed to assist public authorities in Wales make good decisions that were lawful and complied with the Rule of Law. Cabinet Secretary for Communities and Children introduced a Welsh Government Bill, the Abolition of the Right to Buy and Associated Rights (Wales) Bill on 13 March. It has been remitted to the Equality, Local Government and Communities Committee for consideration. The Constitutional and Legislative Affairs Committee took evidence on 3 April. According to the Government, the number of homes lost through the Right to Buy was equivalent to 45% of the social housing stock in 1981. In the Assembly, the Constitutional and Legislative Affairs Committee is undertaking an inquiry into inter-institutional working in order to produce best practice principles for constitutional legislation; to reflect and build on the work of other legislatures on inter-institutional working as it relates to broader policy areas; and to seek, establish and promote opportunities for inter-parliamentary working, including promotion of citizen engagement. It has two strands, constitutional matters and policy matters. The Committee also published its report on the Trade Union (Wales) Bill ( PL 298) on 7 April, with debate on the general principles of the Bill scheduled for Plenary on 9 May. The External Affairs and Additional Legislation Committee is taking evidence for two inquiries, into regional policy – “What Next for Wales?” – and into the Great Repeal Bill and its implications for Wales.
In April, the Equalities and Human Rights Commission published “Being disabled in Britain: A journey less equal”, its review into disability inequality in Great Britain. It builds on the EHRC statutory five-yearly report on equality and human rights progress in England, Scotland and Wales, ‘Is Britain Fairer? The state of equality and human rights 2015’ and also draws on new quantitative data analysis and the EHRC submission to the UN Committee on the Rights of Persons with Disabilities, published in February 2017. The review includes chapters on six core areas of life, including education, work, health, justice and participation in politics. It also looks the experiences of those with different impairments and how these have an impact on people’s life chances. A separate, shorter report “The state of play – How accessible is your club?” looked at disabled access at Premier League football grounds.
The Women and Equalities Committee Government report “Implementation of Sustainable Development Goal 5 in the UK” (HC 885, 14 March) concluded that the government must publish a plan on how it intends to achieve gender equality. In 2015, the Sustainable Development Goals (SDGs) were agreed by world leaders at the United Nations, in which the UK strongly advocated for the inclusion of SDG 5, a commitment to achieve gender equality and the empowerment of women and girls by 2030. However, unlike 22 other countries, the UK Government had not set out a clear strategic plan for how this international obligation would be met. The report found that many of the targets under SDG 5 would require cross-departmental working and it was not clear that effective lines of responsibility for co-ordinating this had been established.
- Indirect Discrimination
It was not necessary for E to have to show why the pass rate in a Home Office promotion test historically was lower for Black and Minority Ethnic (BME) candidates than for white – something no one had been able to identify – in order to succeed in a claim for indirect discrimination. So held the Supreme Court in a test case brought by E. The provision, criteria or practice (PCP) that applied equally to all need not put every member of the group sharing the protected characteristic at a disadvantage. It was irrelevant that some BME candidates could pass the test; the group was at a disadvantage because the proportion who could pass was smaller than the proportion of white candidates. The disadvantage suffered by the individual must correspond with the disadvantage suffered by the group. The disadvantage was that members of the BME group failed the test disproportionately and E suffered this disadvantage too. However, a candidate who failed the test because she did not prepare or did not turn up for or finish it had not suffered harm as a result of the PCP in question and in such a case it would be open to employer to show that the causal link between the PCP and the individual disadvantage was absent (Essop v Home Office; Naeem v Secretary of State for Justice  UKSC 27).
- Marital status
The statutory ban on opposite-sex couples entering a civil partnership, contained in s.3(1) of the Civil Partnership Act 2004 did not constitute an unlawful and discriminatory restriction on the right to respect for private life in Article 8, despite same-sex couples now having two options for obtaining legal recognition of their relationship (civil partnership and marriage). Opposite-sex couples have only one. So held the Court of Appeal by a majority upholding the High Court ( PL 330). While the Court was unanimous that the bar constituted a potential violation under Article 14 taken with Article 8, the majority (Beatson and Briggs LLJ) considered the Secretary of State’s policy of “wait and evaluate” to be proportionate, and therefore lawful. It was right that the Secretary of State should have further time to undertake a proper assessment of the best way forward on what was an important matter of social policy, when a number of options, including the extension of civil partnership to different-sex couples, or its phasing out, fell to be considered. Arden LJ’s dissent was premised on her view that the Secretary of State’s current policy – that she would not propose any change to the 2004 Act until she had more statistical data about whether the number of same-sex couples choosing or remaining in civil partnerships rose or fell following the introduction of same-sex marriage – was both open-ended in time and focused solely on the reduction in number of civil partnerships, and thus not sufficient to justify the violation (Steinfeld and Keidan v Secretary of State for Education  EWCA Civ 81).
The difference in treatment between on one hand, a surviving unmarried cohabitee, on the death of the other, and on the other hand, surviving spouses or those in civil partnerships in rules relating to local government pensions was not justified and so constituted unlawful discrimination. So held the Supreme Court in claim brought by B, whose partner, M, was a driver for Translink, a public transport operator, for whom he had worked for approximately 15 years before he died. M’s pension scheme required unmarried co-habiting partners to be nominated by their pension scheme member partner in order to be eligible for a survivor’s pension. The survivor also had to show that he or she had been a cohabitant for two years before the date on which the member sent the nomination and has been in that position for two years before the date of death. There was no similar nomination requirement for married or civil partner survivors. M had not nominated B. While the government’s case was that the objective behind the nomination requirement was to establish the existence of a cohabiting relationship equivalent to marriage or civil partnership and identify the wishes of the scheme member, the relevant regulations already required a surviving partner to establish that a genuine and subsisting relationship existed, so the nomination requirement added nothing to this evidential hurdle. There was no rational connection between the objective, which was to remove the difference of treatment between a longstanding cohabitant and a married or civil partner, and the imposition of the nomination requirement and therefore its discriminatory effect could not be justified (In the matter of an application by Denise Brewster for Judicial Review (Northern Ireland)  UKSC 8).
Provided it was uniformly and consistently applied, a prohibition on wearing an Islamic headscarf, which arose from an internal rule of a private undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, did not constitute direct discrimination based on religion or belief within the meaning of the Equal Treatment Directive (Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16). So held the CJEU on a preliminary reference from Belgium where A had been dismissed for continuing to wear her Islamic headscarf at work. Such a prohibition might constitute indirect discrimination if it were established that the apparently neutral obligation resulted, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage. However, such indirect discrimination may be objectively justified by a legitimate aim, such as the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality, provided that the means of achieving that aim were appropriate and necessary. That would be a matter for the domestic courts to assess. In a combined case, a preliminary reference from France, where B had been dismissed after a customer complained about her headscarf, the CJEU held that the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf could not be considered a genuine and determining occupational requirement within the meaning of Article 4(1) of the directive. It was only in very limited circumstances that a characteristic related, in particular, to religion in general might constitute a genuine and determining occupational requirement. That concept referred to a requirement that was objectively dictated by the nature of the occupational activities concerned or of the context in which they were carried out and did not cover subjective considerations, such as the employer’s willingness to take account of the particular wishes of the customer (Achbita v G4S Secure Solutions Case C-157/15 and Bougnaoui v Micropole Univers Case C-188/15, CJEU judgment 14 March).
On 19 April, a motion under s.2(1) Fixed Term Parliaments Act 2011 was passed by 522 to 13 to allow an early general election. Parliament was dissolved on 3 May, with the date of 8 June set for the election. The new Parliament will meet on 13 June, when the business will be the election of the Speaker of the House of Commons and the swearing-in of MPs and members of the House of Lords, and the State Opening of Parliament will follow on 19 June.
On 16 March, the Conservative Party was fined a record £70,000 following the conclusion of the Electoral Commission’s investigation into the party’s campaign spending. The investigation concluded that there were significant failures by the Party to report accurately on how much it spent on campaigning at three by-elections in 2014 and at the 2015 UK Parliamentary general election. The Conservative Party’s 2015 UK Parliamentary general election spending return was missing payments worth at least £104,765. On 10 May, the CPS decided that no charges should be brought in respect of various Conservative MPs and their election agents for failing to declare as local spending the costs of the Central Office “battle bus” that visited key marginal constituencies during the 2015 election. Instead, this was returned at national level. The CPS statement is here.
The Commons European Scrutiny Committee in its 22 March meeting (36th Report HC 71-xxxiv, 28 March) considered the “European Defence Action Plan” (COM(2016) 950, 30 November) with its three pillars: launching a European Defence Fund; increasing the EU’s defence industry access to finance; and reinforcing the Single Market for defence. Its 19 April meeting (39th Report HC 71, 25 April) considered two Commission Proposals relating to asylum: Commission Proposal for a Regulation on the European Union Agency for Asylum and repealing Regulation (EU) No. 439/2010 (COM(16) 271, 11 May 2016) and Commission Proposal for a Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third country national or a stateless person (recast) (COM(16) 270, 11 May 2016). Earlier, in its 1 February meeting (30th Report HC 71-xxviii, 7 February) it considered a range of Commission Proposals all under the umbrella of enhancing law enforcement cooperation and border control: strengthening the Schengen Information System.
Freedom of Expression
- Hate speech
The Commons The Home Affairs Committee in its report “Hate crime: abuse, hate and extremism online” (HC 609 1 May) strongly criticised social media companies for failing to take down and take sufficiently seriously illegal content – saying they were “shamefully far” from taking sufficient action to tackle hate and dangerous content on their sites. The Committee recommended the Government should assess whether failure to remove illegal material in itself should be a crime and, if not, how the law should be strengthened. It recommended also that the Government should consult on a system of escalating sanctions to include meaningful fines for social media companies which failed to remove illegal content within a strict timeframe. Social media companies should also have to publish regular reports on their safeguarding activity.
- Media freedom
In the annual RSF (Reporters sans frontiers) Without Borders World Press Freedom index (published at the end of April) the UK was placed 40th out of 180, falling from 34th in 2015 and 38th in 2016. The full report is here but RSF explains the UK’s drop by a “heavy-handed approach towards the press – often in the name of national security”.
Despite the Strasbourg holding in MGN v UK (2011) 53 EHRR 5, the Supreme Court – in appeals brought by three media groups against awards made by lower courts of success fees and ATE (after the event) premiums against them – decided that the just and appropriate order under s.8(1) of the Human Rights Act was to dismiss the appeals as to allow them would be a graver infringement of the claimants’ rights than the infringement which the newspaper publishers would suffer if the appeals were dismissed. Denying the ability to recover the success fee and ATE premiums which individuals had incurred would infringe their rights under A1P1. They had incurred financial obligations in reliance on a statute (the Access to Justice Act 1999) and had a legitimate expectation that the statute would not be retrospectively repealed or otherwise invalidated to their detriment. It might be that their Article 6 and 8 rights would also thereby be infringed as the regime aimed to enable access to the courts, and the present proceedings were brought to restore personal reputation (Times Newspapers Limited v Flood; Miller v Associated Newspapers Limited; Frost v MGN Limited  UKSC 33).
- Media Regulation
IMPRESS, the press regulator recognised as independent and effective under the Royal Charter, launched its first standards code for publishers on 24 April. The Code can be found here. The Code was ‘co-created’ through an open process with journalists, publishers, a range of interested groups and the general public, and is based on the core principles of protecting journalistic freedom, distilled from more than 50 similar codes from around the world that were studied in its development. It will apply to publications regulated by IMPRESS regardless of medium or platform. On 10 April, IMPRESS announced the first six arbitrators to be appointed to its arbitration panel by the Chartered Institute of Arbitrators.
Government and Civil Service
The Public Administration and Constitutional Affairs Committee published several reports: “Lessons still to be learned from the Chilcot Inquiry” (HC 656, 17 March) concluded that there remained an absence of safeguards in place to prevent a Prime Minister from disregarding Cabinet procedures in the conduct of foreign and military policy. “Managing Ministers’ and officials’ conflicts of interest: time for clearer values, principles and action” (HC 252 24 April) made several recommendations in relation to the Advisory Committee on Business Appointments (ACoBA) and called for urgent government review including as to transparency of appointments in order to restore public trust. Its report “The Work of the Civil Service: key themes and preliminary findings” (HC 253 2 May) invited its successor to explore in more depth whether Ministers felt that the advice they received from the civil service was grounded in sufficient subject expertise, and to consider such matters as: how turnover and circulation of staff affected knowledge retention in specialist policy areas; whether the civil service place a high enough premium on subject expertise; and whether the balance was right between those who brought expertise and those with a broader, more generalist perspective. It also invited its successor to consider closely whether the Haldane doctrine aided or impeded accountability to Parliament, and recommended further study of the stewardship role of Ministers in relation to the civil service, and to investigate how a training programme for Ministers, and aspiring Ministers, could be developed that gave an insight into the workings of the civil service.
- Article 8
A decision to prosecute – here, for the offence under s.25(1) of the Identity Cards Act 2006 possessing an identity card relating to someone else, with the intention of using it to establish his or her identity as that person’s identity – did not engage Article 8. It did not itself involve a lack of respect for the autonomy of the defendant but placed the question of determining his or her guilt before the court. So held the Supreme Court in dismissing SXH’s claim for damages against the CPS inter alia for breach of Article 8 after they offered no evidence in a criminal trial against her. Although Article 8 was broad, it was not so broad as to encompass everything done by a public authority which had the consequence of affecting someone’s private life in a more than minimal way. Neither the Strasbourg authorities nor domestic case law supported the contention that the institution of criminal proceedings, for a matter which was properly the subject of the criminal law and for which there was sufficient evidence, might be open to challenge on Article 8 grounds. It would be illogical. If the matter were properly the subject of the criminal law, it was a matter for the processes of the criminal law. The criminalisation of conduct may amount to an interference with Article 8 rights. However, if it did not amount to an unjustifiable interference, then neither did the decision to prosecute (SXH v The Crown Prosecution Service  UKSC 30).
Claims brought by S, an agency worker in the construction industry and trade union rep, alleging breaches of Articles 8 and 11 arising from being blacklisted were declared inadmissible by a Committee of the European Court of Human Rights (First Section) (Smith v UK, App. no. 54357/15 28 March).
The JCHR report “Human Rights and Business 2017: Promoting responsibility and ensuring accountability” (HC 443 HL 153, 5 April) recommended greater legislation and stronger enforcement to protect worker rights. Legislation should impose a duty on all companies to prevent human rights abuses, as well as a criminal offence of ‘failure to prevent human rights abuses’ alongside legislation to enable prosecution of a parent company where human rights abuses are found further down the supply chain. Furthermore, the Government’s proposed ‘Great Repeal Bill’ needed to replicate the human rights protections enshrined in EU law, with human rights as a key component of future trade deals. The Government should extend protections provided by the Gangmasters & Labour Abuse Authority to other industries, such as construction, and government procurement and must lead by example and exclude companies who did not undertake appropriate due diligence to ensure human rights standards were met. Last, Government should give local authorities the powers to close down business premises found to exploit workers (e.g. where there had been found to be underpayment of wages, lack of employment contracts or where there was a significant disregard of health and safety regulations).
The Ministry of Justice submitted the UK’s 3rd Universal Periodic Review (UPR) to the UN in February (the last was in 2012) with examination before the Human Rights Council on 4 May. The 20-page report and annexes can be found here.
- Right to die
The Court of Appeal granted permission to apply for judicial review to seek a declaration of incompatibility under s.4 of the HRA that s.2(1) of the Suicide Act 1961 – criminalising encouraging or assisting suicide or attempted suicide – was incompatible with the ECHR, overturning the Divisional Court in a claim brought by C, a 67 year old man. He was diagnosed in 2014 with motor neurone disease and informed that he might have a life expectancy of between 6 and 18 months, the facts thus resembling those in R (Nicklinson) v Ministry of Justice  UKSC 38. Since then, on three occasions, Parliament had made a decision not to change the law so the matter was no longer under active consideration. C should thus be entitled to argue that it was no longer institutionally inappropriate for the court to consider whether to make a declaration of incompatibility, one of the key factors determining the outcome in Nicklinson. Furthermore, while the inadequacy of the evidence in Nicklinson was a secondary reason for the majority decision not to exercise institutional competence, on the instant facts it was arguable that the evidence demonstrated that a mechanism of assisted dying could be devised for those in C’s narrowly defined group that was practical so as to address that unanswered question (R (Conway) v Secretary of State for Justice  EWCA Civ 275).
Immigration, extradition, deportation and asylum
- Article 5 detention
There had been no breach of Article 5(1)(f) by the UK for detention with a view to deportation of almost two and a half years during which time A was exercising his right to bring proceedings challenging the decision to deport him. It did not consider there was any period of inactivity in the deportation proceedings that would amount to a lack of “due diligence”. Similarly, (by a majority 6:1) there had been no breach of Article 34 arising from the repeated offers made to him by immigration officers to join a “facilitated returns scheme” to Somalia. It had not been demonstrated that the authorities were improperly seeking to “dissuade or discourage him” from pursuing his application to this Court. In addition, noting the wider context, by providing the applicant with legal aid, the authorities were not seeking to make it more difficult for the applicant to pursue his claim but on the contrary providing him with the means to do so, thereby reducing his susceptibility to influence (Ahmed v UK App no. 59727/13, 2 March).
The decision to deprive K2 of British citizenship pursuant to s.40(2) of the British Nationality Act 1981 on the ground that to do so would be conducive to the public good following a Security Service assessment presented to the Special Immigration Appeal Tribunal (“SIAC”) that he had travelled with two extremist associates to Somalia, where he engaged in terrorism-related activities linked to Al-Shabaab, a jihadist terrorist group based in East Africa did not involve a violation of Article 8. So held the First Chamber of the European Court of Human Rights, declaring the application inadmissible as manifestly ill-founded. Whatever procedural difficulties K2 complained of were not a natural consequence flowing from the simultaneous decision to deprive him of his citizenship and exclude him from the United Kingdom. Neither was K2 rendered stateless by the decision to deprive him of his British citizenship. He was entitled to – and had since obtained – a Sudanese passport. Furthermore, he had left the United Kingdom voluntarily prior to the decision to deprive him of his citizenship; his wife and child were no longer living in the United Kingdom and could freely visit Sudan and even live there if they wished; and the applicant’s own natal family could – and did – visit him “reasonably often”. The decision to remove citizenship was not therefore arbitrary. The Home Secretary’s decision to exercise the Crown’s common law prerogative power to exclude K2 from the UK on the ground that he was “involved in terrorism-related activities” and had “links to a number of Islamic extremists” was similarly not unlawful under Article 8. As a matter of well-established international law and subject to their treaty obligations, States have the right to control the entry, residence and expulsion of aliens. The ECHR did not guarantee the right of an alien to enter or to reside in a particular country and, in pursuance of their task of maintaining public order, Contracting States had the power to expel an alien convicted of criminal offences. However, their decisions in this field, in so far as they might interfere with a right protected under Article 8, had to be in accordance with the law, pursue a legitimate aim and be necessary in a democratic society. Even accepting that the decision to exclude interfered with K2’s private and family life in the UK, his exclusion did not have a significant adverse impact on his right to respect for his family and private life or upon his reputation. The Court did not consider that the decision to exclude was disproportionate to the legitimate aim pursued, namely, the protection of the public from the threat of terrorism. An application based on Article 14 was similarly declared inadmissible. K2’s argument that he was treated differently from a British citizen who posed a threat to national security had not been argued before the domestic courts (GI v Secretary of State for the Home Department  EWCA Civ 867) and so represented a failure to exhaust domestic remedies. As to the second alleged ground of discrimination – that he was treated differently from a non-national resident – K2 was not denied an in-country right of appeal because he was a British citizen; rather, the reason he did not have an in-country appeal against the decision to deprive him of his citizenship, and the reason he was not present during the JR proceedings, was because he had already left the UK of his own volition when the impugned decisions were taken. A non-national resident who had his leave to remain cancelled while out of the country would also not be permitted to return for the purposes of an appeal (K2 v UK App. no. 42387/13, 7 February).
- EU Law
An application for a visa with limited territorial validity made on humanitarian grounds by a third-country national, on the basis of the Visa Code, at a Member State’s embassy within third country territory, with a view to lodging, immediately upon arrival in that Member State, an application for international protection and, accordingly, to stay in that Member State for more than 90 days in an 180-day period, did not fall within the scope of that code. So held the CJEU in cases brought against Belgium by members of a Syrian family from Aleppo. Decisions whether or not to grant long-term humanitarian visas to those fleeing conflict were not matters governed by EU Law but were matters solely for national law. As such, the Charter had no bearing on any decision taken. Member States were therefore not required, under EU law, to grant a humanitarian visa to persons who wished to enter their territory with a view to applying for asylum, though they remained free to do so on the basis of their national law. EU law established only the procedures and conditions for issuing visas for transit through or intended stays on the territory of the Member States not exceeding 90 days, contained in the EU Visa Code (Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (OJ 2009 L 243, p. 1), as amended by Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013 (OJ 2013 L 182, p. 1). No measure had been adopted, to date, by the EU legislature with regard to the issuing by Member States of long-term visas and residence permits to third-country nationals on humanitarian grounds (X and X v État belge, Judgment in Case C-638/16 PPU, 7 March)
The fact that Immigration Rules required those applying for leave to remain in the UK as the partners of a British citizen to be able to demonstrate “insurmountable obstacles” to continuing their relationship abroad was a stringent test to be met, rather than one relevant factor to be taken in account, did not make it incompatible with Article 8. So held the Supreme Court dismissing two appeals by A and I to refusals to grant leave. The phrase “insurmountable obstacles” was not defined by the Rules but it was reasonable to infer that it was intended to have the same meaning as in the jurisprudence of the European Court. It imposed a stringent test and was to be interpreted in a sensible and practical way rather than referring solely to obstacles which made it literally impossible for the family to live together in the applicant’s country of origin. This was consistent with the guidance on assessing insurmountable obstacles contained in the Instructions, and the definition of that phrase introduced subsequently in the Rules, effective from 28 July 2014. Immigration Directorate Instructions stated that where an applicant did not meet the requirement of the Rules, leave could be granted outside the Rules where exceptional circumstances applied. The Instructions stated that exceptional did not mean unusual or unique, but meant circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate. This was an application of a proportionality test, consistent with the references to exceptional circumstances in European case law and could not be regarded as incompatible with Article 8 (R (Agyarko) v Secretary of State for the Home Department; R (Ikuga) v Secretary of State for the Home Department  UKSC 11).
- Minimum Income
In principle, the minimum income requirement (‘MIR’) of at least £18,600 under Immigration Rules for non-EEA applicants to join their spouses or civil partners in the UK was lawful, and not a violation of either spouse’s rights under Article 8, but the Immigration Directorate Instruction on family migration giving guidance to entry clearance officers and the Immigration Rules were unlawful as it failed to take account of the Secretary of State’s duty under s.55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children when making decisions which affected them. So held the Supreme Court on various appeals. The fact that the MIR might cause hardship to many did not render it unlawful. It had the legitimate aim of ensuring that couples did not have recourse to welfare benefits and had sufficient resources to play a full part in British life. The income threshold chosen was rationally connected to this aim and the acceptability in principle of an MIR had been confirmed by the ECtHR in Konstatinov v Netherlands  2 FCR 194. There were also restrictions in the Rules on taking into account the prospective earnings of the foreign spouse or partner or guarantees of third party support when deciding whether the MIR had been met. Although harsh and even capricious, it was not irrational at common law for the Secretary of State to give priority in the Rules to simplicity of operation and ease of verification. However, that did not necessarily entail that the same restrictive approach would be compliant with the duties under the HRA, where Article 8 required an evaluative exercise. Since a tribunal on an appeal could judge for itself the reliability of any alternative sources of finance, it made little sense for decision-makers at an earlier stage to be forced to take a narrower approach. In that respect, aspects of the Instructions required revision to ensure that decisions were taken consistent with the duties under the HRA. Guidance to officers should make clear that, where the circumstances give rise to a positive Article 8 duty, a broader approach might be required in drawing the “fair balance” required by the Strasbourg court. They were entitled to take account of the Secretary of State’s policy objectives, but in judging whether they were met, they were not precluded from taking account of other reliable sources of earnings or finance. It was open to the Secretary of State to indicate criteria by which reliability of such sources might be judged, but not to exclude them altogether (R (oao MM (Lebanon)) v Secretary of State for the Home Department  UKSC 10).
The All Party Parliamentary Group on Refugees published “Refugees Welcome? The Experience of New Refugees in the UK” in April. It recommended that the Government introduce a cross-departmental National Refugee Integration Strategy that was applicable to all refugees in the UK, alongside the creation of a Minister for Refugees to oversee the strategy, and to ensure there was a focus on refugee policy within the Government. Developing a new, post-Brexit immigration system required a refugee policy based on compassion that would allow refugees to rebuild their lives and for the UK to benefit from the talent and resilience that refugees bring. The full report is available here. The Home Affairs Committee report “Unaccompanied child migrants” (HC 1026) was published on 6 March.
- Ouster clauses
While the High Court held that in passing s.67(8) of the Regulation of Investigatory Powers Act 2000, Parliament had succeeded in creating a valid ouster clause in relation to decisions of the Investigatory Powers Tribunal (in a challenge brought by PI to that Tribunal’s construction of the meaning of s.5 of the Intelligence Services Act 1994) the case is interesting for the difference in view taken by Sir Brian Leveson P and Leggatt LJ. The latter inclined to the view that s.67(8) did not exclude the possibility of judicial review but concluded that the right course was to concur in the result, while recording his reservations (R (Privacy International v Investigatory Powers Tribunal  EWHC 114 Admin).
In the Court of Appeal, in a judicial review arising from the grant of planning permission for the expansion of a football ground on green-belt land, Elias LJ, with whom Patten LJ agreed, offered the following view. Having reviewed the authorities, he concluded that it might be “more accurate to say that the common law is moving to the position whilst there is no universal obligation to give reasons in all circumstances, in general they should be given unless there is a proper justification for not doing so” (at ) signifying a shift in emphasis from the idea expressed in R v HEFC ex parte Institute of Dental Surgery  1 WLR 242 by Sedley LJ that apparently aberrant decisions would displace the general rule (R v Secretary of State for the Home Department ex parte Doody  AC 531) that there was no duty to provide reasons for decisions. On the facts, the Court was unanimous (Sales LJ differed in reasoning) that the council’s failure constituted a breach of that duty (Oakley v South Cambridgeshire District Council  EWCA Civ 71).
On 29 March, the Lords’ Constitution Committee heard evidence from the President and Deputy President of the Supreme Court covering the impact of Brexit and the work of the Supreme Court, devolution issues, and judicial recruitment, appointment, and succession planning (including issues of diversity).
Lord Neuberger delivered the 2017 Neill Lecture to the Oxford Law Faculty 2017 “Twenty Years a Judge: Reflections and Refractions” on 10 February. Lord Mance spoke at King’s College, London on13 February on “International Law in the UK Supreme Court” and on 24 February during the Judicial Committee of the Privy Council’s Fourth Sitting in The Bahamas lectured on “The Role of Judges in a Representative Democracy”. Mr Justice Singh gave the 2017 Professor DGT Williams lecture at Cambridge on 27 February, “Divided by a common language: American and British perspectives on constitutional law”.
The Supreme Court unanimously held that a parent would be guilty of the offence in s.444(1) of the Education Act 1996 – failure to ensure their child attended school regularly – if their child failed to attend ‘in accordance with the rules prescribed by the school’. ‘Regularly’ had at least three possible meanings in this provision: it could mean (a) evenly spaced; (b) sufficiently often; or (c) in accordance with the rules. The Court upheld the Council’s appeal against a magistrate’s ruling that P had no case to answer (being prosecuted for taking his daughter on holiday without permission) as his daughter had attended school ‘regularly’. The magistrates had decided that even after the holiday, she had attended 90.3% of the time up to that point in the academic year. In the Court’s view, while equating regularly with “sufficiently frequently” , as the magistrates had done, was the meaning assumed in some earlier cases, case, there were many reasons to think that this was not what Parliament intended in 1944 or in 1996. This pointed towards the correct interpretation of ‘regularly’ being ‘in accordance with the rules’. A sensible prosecution policy would allow minor or trivial breaches to be dealt with appropriately (Isle of Wight Council v Platt  UKSC 28).
On 6 April, Rob Behrens took up his role as the new Parliamentary and Health Service Ombudsman, replacing Julie Mellor (see  PL 153). His previous roles include Complaints Commissioner at the Bar Standards Board and Independent Adjudicator for Higher Education (Office of the Independent Adjudicator) in England and Wales.
The Commons Public Administration and Constitutional Affairs Committee published “Will the NHS never learn? Follow-up to PHSO report ‘Learning from Mistakes’ on the NHS in England” (HC 743 31 January). The PHSO report “Learning from mistakes: An investigation report by the Parliamentary and Health Service Ombudsman into how the NHS failed to properly investigate the death of a three-year old child, Parliamentary and Health Service” was published on 18 July 2016.
The Communities and Local Government Committee held a one-off evidence session, as part of its pre-legislative scrutiny of the draft Public Service Ombudsman Bill on 6 March. The draft Bill can be found here and there is a Commons Library briefing paper here (CBP 7864 , 13 January).
- Committee reports
- The Commons Work and Pensions Committee report “Self-employment and the gig economy” (HC 847 1 May) was very critical of companies such as Uber, Amazon and Deliveroo. The apparent freedom such companies enjoyed to deny workers the rights that came with “employee” or “worker” status failed to protect workers from exploitation and poor working conditions, and also led to substantial tax losses to the public purse, and potentially increased the strain on the welfare state.
- The Commons Work and Pensions Committee report “Victims of modern slavery” (HC 803 30 April) estimated there to be between 10,000 and 13,000 slaves – victims of modern slavery – in the UK, but concluded that the current mechanism for identifying and supporting them out of slavery was deficient. Victims, once identified, had no automatic formal immigration status or rights and were often faced with a total lack of understanding or even recognition of their situation.
- The Commons Procedure Committee report “Authorising Government expenditure: steps to more effective scrutiny” (HC 190 19 April) called for MPs to have a more direct and effective role in the scrutiny of Government expenditure proposals.
- The Lords’ Communications Committee report, “Growing up with the internet” (HL 130, 21 March) set out a series of recommendations that would better enable children to navigate the complex world of the internet. These included establishing a Children’s Digital Champion to ensure coordinated and sustained action across government, and digital literacy to sit alongside reading, writing and arithmetic as the fourth pillar of a child’s education.
- The Commons Education Select Committee report “Multi-Academy Trusts” (HC 204 28 February) voiced concerns on the current trend. It identified a gap in assessing MATs which neither Ofsted nor RSCs presently fulfilled. There remained a high degree of uncertainty around the effectiveness of MATs and there was not yet the evidence to prove that large-scale expansion would significantly improve the school landscape. All of the reports so far showed a mixed picture in terms of the performance of MATs. Some were delivering excellent results and using the MAT model to effectively drive improvement. However, a significant number of MATs were failing to improve year on year and consistently appear at the bottom of league tables.
Several Acts were passed on 27 April, the day Parliament was prorogued:
- Homelessness Reduction Act 2017
- Children and Social Work Act 2017, making provision about looked after children and the welfare of children generally, as well as the regulation of social workers
- Preventing and Combating Violence Against Women and Domestic Violence (Ratification of Convention) Act 2017
- Neighbourhood Planning Act 2017
- Criminal Finances Act 2017, amending the Proceeds of Crime Act 2002 by creating “unexplained wealth orders” and inter alia making provision in connection with terrorist property; and
- The wide-ranging Digital Economy Act 2017
The Divisional Court had been right not to quash an inquest jury verdict on grounds that the Coroner had misdirected jury members in law. So held the Court of Appeal in an appeal brought by relatives of D, shot dead by police in 2011 by an officer known as V53. V53’s evidence was that he fired because he believed that D was holding a gun and was about to use it. The coroner directed the jury, in accordance with the criminal law, that if they found that that was V53’s honest and genuine belief at the time that he fired then he was acting in lawful self-defence and they should return a verdict of “lawful killing”. The jury found that D was not in fact holding a gun, but they returned a verdict of lawful killing, indicating that they accepted that V53 had honestly and genuinely believed that he was. The central question on the appeal was whether, in light of Da Silva v UK  ECHR 314, a jury direction should not only refer to the honesty of any belief but also its reasonableness. It was D’s case that a separate finding about reasonableness was necessary in order to comply with the state’s duties under Article 2. The Court of Appeal held that there was no need for a coroner to spell out to the jury that, as part of their decision whether V53 honestly believed that D had a gun and was about to use it, they needed to consider whether such a belief was reasonable. That consideration was, as a matter of common sense, an inevitable part of the exercise that they had to carry out. It was entirely unnecessary to give a direction to the jury on the relevance of the reasonableness or otherwise of V53’s belief that D was pointing a gun at him; the whole point of the evidence of those who were present and saw the shooting was to establish whether V53 had reasons for holding that belief. The jury’s conclusion of lawful killing inevitably and implicitly involved an evaluation of the evidence indicating whether V53 could reasonably have held that belief in the light of what he knew and saw. Furthermore (dealing with the 2nd limb of the appeal), it was established law that the role of an inquest jury, where self-defence was in issue, was to consider whether the killing was in breach of the criminal law. An inquest was not concerned with questions of civil liability. Thus the fact that the test in the latter (Ashley v Chief Constable of Sussex  UKHL 25) was an honest and (objectively) reasonable belief took D no further (R (Duggan) v Deputy Coroner for North London  EWCA Civ 142).
On 2 February, “Best Use of Stop and Search – second revisits” was published. In 2014, the Home Office and College of Policing launched the Best Use of Stop and Search (BUSS) scheme, to achieve greater transparency and community involvement in the use of stop and search powers, and to support a more intelligence-led approach. The scheme set out guidance on five matters such as the introduction of lay observation policies to allow members of the public to accompany officers on patrol when they might observe stop and search powers being used; and monitoring the impact of stop and search on young people and black, Asian and minority ethnic communities. An inspection in 2015 identified 19 forces that were not complying with one or two of those five features. This report is the follow up for those. On 2 March, as part of its annual inspections of police effectiveness, efficiency and legitimacy (PEEL), HMIC published the limb on effectiveness of all 43 police forces in England and Wales.
When assessing the necessity of an arrest (under s.24(5) of PACE), it was not for a court on review to decide as a question of primary fact whether the arrest in question was necessary. The appropriate test that a court should apply to the exercise of the discretionary power was two-pronged (see Hayes v Chief Constable of Merseyside  1 WLR 517 (CA): does the officer honestly believe that arrest was necessary for one or more identified section 24(5) reasons; and, secondly, was his decision, objectively reviewed afterwards according to the information known to him at the time, made on reasonable grounds. The first limb of the test was subjective. All that the second limb meant was that the court, in the exercise of its judicial function, should apply independent, objective standards to its review of a defendant’s decision: in particular, the reasonableness of the grounds upon which that decision was founded. That review is carried out on the basis of information known to the decision-maker at the time it was made. Finally, the court did not ask itself whether any police officer could rationally have made the decision under challenge; it directed itself to the particular decision maker and his grounds. However, it should be emphasised that the underlying concept in section 24(5) was that of necessity. This could not be envisaged as a synonym for “desirable” or “convenient”. On the police’s main two arguments, while in principle the imposition of bail conditions could conduce a prompt and effective investigation, and thus provide a lawful ground for arrest under s.24(5), that would only be so if there were reasonable grounds for believing that bail conditions were necessary to protect a witness from intimidation which would or might render the investigation substantially less effective. Secondly, the High Court declined to assert a general rule that the police could never deploy as the sole justification for an arrest under section 24(5)(e) the fact that arrest would trigger the possibility of their conducting a search under s.18 as that would have far-ranging consequences. There were no linguistic or textual reasons preventing a search being adjunctive to, or part of, a prompt and effective investigation. However here on the facts, the police had not advanced any proper basis for their failure to seek a warrant under s.8, thus rendering unnecessary their decision to arrest (R (TL) v Surrey Police  EWHC 129 Admin).
Prisoners and mental health detainees
- Legal Aid
It was unlawful to remove certain categories of prison law from the scope of criminal legal aid in the Criminal Legal Aid (General) (Amendment) Regulations 2013. So held the Court of Appeal, in part granting H its application for judicial review. The specific categories were: (1) pre-tariff reviews by the Parole Board where the Board advised the Secretary of State for Justice whether the prisoner was suitable for a move to open conditions; (2) categorisation reviews of Category A prisoners, defined as those whose escape would be highly dangerous; and (3) placement in close supervision centres (“CSCs”). These met the high threshold required for a finding of inherent or systemic unfairness where, following cases such as Osborn and Booth v. Parole Board  UKSC 61, the question was whether or not someone was able to present their case effectively or have any effective involvement in the decision-making process. On such matters, the court had to bear in mind factors such as the importance of the issues at stake; the complexity of the procedural, legal and evidential issues; and the ability of the individual to represent himself without legal assistance, having regard to his age and mental capacity, and the other assistance that is available, and this was especially so for vulnerable prisoners. In two other cases alleged by H that threshold was not met: access to offending behaviour programmes and courses (“OBPs”), and disciplinary proceedings. The Court disputed the Government’s assertion at the time of the 2013 changes that there were adequate alternative means in place to ensure prisoners could participate effectively in areas in which support had hitherto been provided by legal advice and legal representation. Almost no changes had been introduced to replace the gap left by the removal of legal aid (R (Howard League for Penal Reform and The Prisoners’ Advice Service) v The Lord Chancellor  EWCA Civ 244).
The Commons Justice Committee reported on the government’s plans for prison reform in “Prison reform: governor empowerment and prison performance” (HC 1123, 7 April) covering governance, performance and commissioning, and should be read alongside its further and later report “Prison reform: Part 1 of the Prisons and Courts Bill” (HC 1150, 28 April). The JCHR published “Mental Health and Deaths in Prison: Interim Report” (HC 893, HL 167 2 May) which included a list of amendments that had been planned for the Prisons and Courts Bill had it proceeded: a statutory duty on the Secretary of State to specify and maintain a minimum ratio of prison officers to prisoners at each establishment; a prescribed legal maximum to the time a prisoner can be kept in their cell each day; a legal obligation for the Prison Service to ensure that each young prisoner or adult prisoner with mental health problems has a key worker; a legal obligation that the relatives of a suicidal prisoner should be informed of and invited to contribute to the Assessment, Care in Custody and Teamwork (ACCT) reviews (unless there was a reason that it should not be the case); provision to be made in the Prison Rules to enable young people, and prisoners with mental health conditions which placed them at risk of suicide to make free phone calls to a designated family member or friend; where a prisoner needed to be transferred to a secure hospital, a legal maximum time between the diagnosis and the transfer; a mechanism to ensure the Secretary of State’s accountability to Parliament for overcrowding; and last a mechanism to ensure the Secretary of State’s accountability to Parliament for maintaining the specified staffing levels.
The arrest and detention of four individuals across London on the day of the wedding of the Duke and Duchess of Cambridge on the ground that their arrest was reasonably believed to be necessary to prevent an imminent breach of the peace, each being released without charge yet held in custody from 2½ to 5½ hours, did not involve an unlawful deprivation of liberty contrary to Article 5. So held the Supreme Court, taking account of Strasbourg case-law but not following it; the Supreme Court preferred the minority view in Ostendorf  ECR 197, that Article 5(1)(c) rather than 5(1)(b) governed the instant facts, permitting detention for preventive purposes followed by early release. It would be perverse if the law was such that in order to be lawfully able to detain a person so as to prevent their imminent commission of an offence, the police had to harbour a purpose of continuing the detention, after the risk had passed, until such time as the person could be brought before a court with a view to being bound over to keep the peace in the future (R (Hicks) v Commissioner of Police for the Metropolis  UKSC 9).
The Police Service of Northern Ireland (PSNI) had incorrectly understood the extent of their power and duties when seeking to maintain order during demonstrations in Northern Ireland. In considering that they still had a duty to facilitate parades that remained peaceful but which had not been notified to the Parades Commission – failure to comply with such requirement rendering participation an offence – they had acted unlawfully. So held the Supreme Court in an application for JR by a Belfast resident challenging the failure of the PSNI to prevent unnotified parades taking place, parades that had been prompted by Belfast City Council’s decision to stop flying the Union flag over Belfast City Hall every day. The PSNI had a duty, under s.32 of the Police (Northern Ireland) Act 2000, to prevent the commission of offences. Participating in an un-notified parade was a criminal offence under s.6(7) of the Public Processions (Northern Ireland) Act 1998 and as such the PSNI had the power to prevent the parades. The police failed properly to appreciate this, instead believing that they only had a power to prevent the commission of general public order offences. The police were not required to form a judgment as to whether a parade should take place, but they were required to decide whether the parade was taking place legally. The police mistakenly believed that they were obliged by Article 11 of the ECHR to facilitate peaceful protests, even though they thought the protests were “technically illegal”. To the contrary, they had an inescapable duty to prevent, where possible, what were plainly illegal parades from taking place. In general, a decision to disperse a parade or protest which had not been lawfully notified would not infringe Article 11 (DB v Chief Constable of Police Service of Northern Ireland (Northern Ireland)  UKSC 7).
On 1 March, Max Hill QC took over the role of Independent Reviewer of Terrorism Legislation from David Anderson QC. His final report, on Deportation with Assurances, work on which commenced in November 2013 has not yet been published and laid before Parliament.
- Humanitarian Law
Actions by armed forces during periods of armed conflict, within the meaning of international humanitarian law, may also constitute ‘terrorist acts’ for the purposes of EU law. So held the CJEU on a preliminary reference from the Raad van State in the Netherlands in a case concerning A, B, C and D, alleged fund-raisers for the Tamil Tigers (LTTE) fighting a separatist civil war in Sri Lanka. A, B, C and D were subject to restrictive measures, including having their assets frozen, to limit their involvement in terrorism pursuant to a Netherlands regulation designed to implement United Nations Security Council Resolution 1373 (2001). The Netherlands authorities had concluded that the LTTE was a terrorist group, a conclusion that took into account an implementing regulation of the Council of the European Union of 2010 (Council Implementing Regulation (EU) No 610/2010 of 12 July 2010 implementing Article 2(3) of Regulation No 2580/2001 and repealing Implementing Regulation (EU) No 1285/2009 (OJ 2010 L 178, p. 1). This maintained the LTTE on a list of groups involved in terrorist activities and subject to restrictive measures. The Raad van State sought clarification regarding the definition of ‘terrorist acts’ especially in light of what it saw as possible inconsistencies between the definition in EU law and in international law. A, B, C and D’s argument was that the LTTE was a non-State armed force engaged in a non-international armed conflict in Sri Lanka. Consequently, its activities were governed only by international humanitarian law and not by the EU and international rules on combating terrorism. It followed that the EU was incorrect to regard the attacks and kidnappings carried out by the LTTE between 2005 and 2009 as ‘terrorist acts’ justifying its inclusion on an EU list concerning groups involved in terrorist acts. In the view of the CJEU, customary international law did not prevent actions by armed forces during periods of armed conflict from constituting ‘terrorist acts’; international humanitarian law pursued different aims from EU law. Furthermore, those international conventions which excluded from their scope actions by armed forces during periods of armed conflict within the meaning of international humanitarian law, neither prohibited State Parties from classifying some of those actions as terrorist acts nor precluded them from taking steps to prevent the commission of such acts (A and Others v Minister van Buitenlandse Zaken, Case C-158/14, CJEU judgment 14 March).
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 (Feb – Apr 2017)’, U.K. Const. L. Blog (30th Jun 2017) (available at https://ukconstitutionallaw.org/))