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.
The Exiting the European Union Committee is currently holding two inquiries: into the progress of the UK’s negotiations on EU withdrawal, and into the EU (Withdrawal) Bill. The House of Lords Constitution Committee published its interim report on the Bill (HL 19, 7 September), critical of the “unprecedented” transfer of powers from Parliament to Government proposed in the Bill, and its unparalleled “political, legal and constitutional significance”. The report explicitly called for a number of key limitations on those powers, given the Bill raised “a series of profound, wide-ranging and inter-locking constitutional concerns”. The Committee made several recommendations: the Bill should ensure legal certainty so that individuals, organisations and the government would know exactly what the law was post-exit, without having to resort to litigation; that the powers granted to Ministers under the Bill must only be used to make the necessary technical changes to adapt EU law to function after Brexit; that they must not be able to be used to implement policy decisions; and that Parliamentary procedures must ensure that delegated legislation which contained significant policy decisions was subject to meaningful scrutiny by Parliament. The report is here.
The House of Lords Delegated Powers and Regulatory Reform Committee published its first report on the Bill (HL 22, 28 September) drawing attention to the “excessively wide law-making powers” and unacceptably wide ‘Henry VIII’ powers the Bill gives to Ministers. It recommends that Ministers should not have an “unfettered discretion” to decide whether the wide-ranging secondary legislation likely to stem from the Bill should be subject to the full scrutiny of the affirmative procedure or the less robust negative procedure. Instead, there should be a new procedure: where the Minister proposes the negative procedure, a Committee of each House, or a joint Committee of both Houses, should be given 10 days to overturn the Minister’s proposal and upgrade scrutiny to the affirmative procedure. This would strike a better balance between the scrutiny requirements of Parliament and the business needs of the Government. Lastly, whatever powers the Government decided to transfer to the devolved institutions in Scotland, Wales and Northern Ireland, this should be done by means of separate Bills. Issues of such constitutional importance should not be left to secondary legislation. The report is here. The JCHR is currently investigating the human rights implications of the Withdrawal Bill.
In a speech given in Florence on 22 September, the Prime Minister set out the UK’s Brexit strategy, including – for the first time – a transition period of up to two years after the UK formally leaves the EU in March 2019. The full text is here. The latest, fifth, round of EU-UK talks took place in mid-October without agreement being reached on any of the three preliminary matters: the UK/Irish border, citizens’ rights, and the UK’s financial settlement. As a result, the leaders of the remaining EU27 decided there had been insufficient progress to open talks on post-Brexit trade deals though they expressed the hope that they might begin in December. The statement by the EU’s chief negotiator is here.
On 20 September, the Government published its response to the House of Lords European Union Committee report “Brexit: devolution” (HL 9, 19 July). The response can be found here. In response to the Government’s continued reluctance to publish “Brexit Impact” statements, covering 58 sectors of the economy (details of which sectors were contained in a letter from Secretary of State for Exiting the European Union to the Chair of EU External Affairs Sub-Committee, 30 October), the Labour opposition tabled a Commons motion that a “humble address be presented to Her Majesty” requiring that the reports “be laid before this House and that the impact assessments arising from those analyses be provided to the Committee on Exiting the European Union”. It was passed unanimously on 1 November (Hansard HC Deb 1 Nov vol 630 col 878) and at the time of writing, the Government’s response is awaited. Other Brexit-related inquiries include: the Foreign Affairs Committee looking into the future of Britain’s diplomatic relationship with Europe; the Commons Public Administration and Constitutional Affairs Committee “Devolution and Exiting the EU”, into the internal constitutional arrangements of the UK after leaving the EU; and the Treasury Committee looking at the UK’s economic relationship with the EU, including transitional arrangements, preparedness for ‘no deal’, and the long-term economic relationship.
Confidentiality, freedom of information and data protection
The covert acquisition of a journalist’s communication data by the police, authorised under s.22 of the Regulation of Investigatory Powers Act 2000 and the relevant code of practice (the Acquisition and Disclosure of Communications Data Code 2007), as a means to discover the source of leaks about a police investigation did not on the facts constitute a significant disadvantage suffered by the two journalists. So held the European Court, declaring their applications under Art 8 inadmissible under Art 35(3)(b). F and N were journalists on The Sun (the 3rd applicant was News Group itself) whom the police believed were in receipt of leaked information concerning both the “Plebgate” incident (the altercation in Downing Street between the Chief Whip and the police officers on duty) and the internal investigation into the incident. First, there was a public interest in acquiring the communication data, as it was in aid of the investigation into a serious criminal offence affecting public confidence in the police. Secondly, the applicants had benefitted from a thorough and comprehensive judgment from the Investigatory Powers Tribunal, which clearly set out all the aspects of the interference of their rights. Thirdly, regarding their complaint that the IPT could not award them a remedy under s.6 of the HRA, the Court was unable to see that the applicants had been disadvantaged by the limitation in the circumstances. In substance what occurred in their case was almost identical to what occurred the case of the 4th applicant where the domestic court made a clear statement that their communications data was taken in a manner which was not in accordance with the Convention. Finally, the applicants’ complaint that the IPT did not have the power under s.4 of the Human Rights Act to make a “declaration of incompatibility” took them no further. Even without the declaration of incompatibility, that change in the law occurred (France and Newton Dunn v UK App 25357/16, 26 September).
The monitoring by an employer of an employee’s (B’s) Yahoo Messenger account, set up at his employer’s request to deal with customer queries, and of his internet use, constituted a disproportionate interference with private life and correspondence and thus a violation of Art 8. Company regulations, of which B accepted he been made aware, prohibited the use of company resources by employees but did not contain any reference to the possibility of the employer monitoring employees’ communications. So held the Grand Chamber by eleven votes to three, overturning the Chamber (4th Section) ( PL 336) which had held the monitoring was lawful (Bărbulescu v Romania App 61496/08, 5 September).
The Data Protection Bill had its First Reading in the House of Lords on 13 September, with Second Reading on 10 October. According to the Explanatory Notes, the Bill implements a commitment in the 2017 Conservative Party manifesto to repeal and replace the UK’s existing data protection laws, updating them for the digital age in which ever increasing amounts of personal data are being processed. It will set new standards for protecting personal data, in accordance with recent EU data protection laws (GDPR), and give people more control over use of their data. The Bill also helps prepare the UK for a future outside the EU. The four main matters provided for in the Bill are general data processing, law enforcement data processing, data processing for national security purposes (including processing by the intelligence services) and regulatory oversight and enforcement.
The House of Lords Constitution Committee published its report on the Bill (HL 37, 26 October), drawing attention to the interlocking relationship between the powers of the Bill and current EU law. Bills such as this needed careful scrutiny to ensure that their provisions would continue to function post-Brexit without needing significant amendment. It noted too the large number of delegated powers in the Bill, an increasingly common feature of recent legislation and one which caused concern. In light of Brexit and the rapidly changing nature of digital technologies, the Government’s desire to future-proof legislation needed balancing against the need for Parliament to scrutinise and, where necessary, constrain executive power. The report is here. The Delegated Powers and Regulatory Reform Committee 6th report (HL 29, 24 October, here) also covered the Bill. On 27 October, the Government published its response to the House of Lords European Union Committee report “Brexit: the EU data protection package” (HL 7, 18 July). The response is available here.
The Article 29 Working Party – the group of EU data protection authorities charged with agreeing European-wide guidance on GDPR – has published two sets of guidelines. The first on profiling “Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679” and the second on breach reporting “Guidelines on Personal data breach notification under Regulation 2016/679” (17/EN WP 25, adopted 3 October, available here and here).
The Investigatory Powers Tribunal referred to the Grand Chamber of the CJEU (pursuant to Art 267 of the TFEU) questions relating to the acquisition and use by the Security & Intelligence Agencies of Bulk Communications Data (“BCD”), under s.94 of the Telecommunications Act 1984. This is the latest case involving challenges brought by P to the legality – under domestic law, under the ECHR and under EU law – of the acquisition and use of bulk data: see  PL 157 on the question of domestic law and Art 8 of the ECHR. The question referred was whether the BCD regime – under which a commercial operator, engaged in an activity within the scope of EU law could be compelled, by a direction enforceable by law, to provide to the SIAs data obtained in the course of ordinary business purposes – came within the scope of European Union Law (“EU Law”), and, if so, given the balance the regime struck between the steps taken by the State to protect its population against terror and threat to life against the protection of privacy of the individual – whether or not it complied with such law, in light of the Grand Chamber decision in Watson, on the conformity with EU law of s.1 of the Data Retention and Investigatory Powers Act 2014, reported  PL 294 (Privacy International v Secretary of State for Foreign and Commonwealth Affairs  UKIP Trib IPT_15_110_CH).
The ICO published its GPEN Sweep 2017: User Controls over Personal information (24 October available here) a review of online privacy notices on 30 UK websites in the retail, banking and lending, and travel and finance price comparison sectors. This is part of a global investigation by 24 data protection regulators around the world into the handling of personal data. The review found that data protection and privacy notices were often inadequate. Problems identified in the operation included the following failures: to specify how and where information would be stored; adequately to explain whether they share data with third parties and with whom that data would be shared; and to provide users with a clear means for deleting or removing their personal data from the website. The ICO also concluded its investigation into a Conservative Party telephone campaign during the 2017 general election. It found that two small sections of the written scripts used by those making the calls crossed the line from legitimate market research to unlawful direct marketing within its Political Campaigning Guidance (26 April, available here). The ICO stopped short of formal regulatory action because the overall campaign was genuine market research but warned the party that its campaigns needed rigorous checking for questions that fell outside the bounds of market research.
Talks to return a power-sharing executive at Stormont (which collapsed at the start of the year) continued but there was still no sign of a deal as at the end of October. Talks between the DUP and Sinn Fein broke down on 1 November, leading the Secretary of State for Northern Ireland to outline plans to introduce a budget at Westminster, though he stressed this would not be the return to direct rule. The budget would be for the remainder of the 2017/18 financial year only. With the exception of two plenary session timetabled in March and in June, there has been no Assembly business scheduled, plenary or in committee, since last January. A legal challenge to the deal between the DUP and the Conservatives, reached after the 2017 election, failed. Ciaran McClean, a member of the Green Party brought judicial review, argued the pact (of support, but with £1bn promised to Northern Ireland) violated the Bribery Act 2010. The Northern Ireland Affairs Committee commenced (14 September) its inquiry into the impact of Brexit on the land border between Northern Ireland and Ireland.
At Holyrood, the Railway Policing (Scotland) Act 2017 received Royal Assent on 1st August and the Limitation (Childhood Abuse) (Scotland) Act 2017 received Royal Assent on 28 July, removing the limitation period for actions for damages in respect of personal injuries resulting from childhood abuse. The Air Departure Tax (Scotland) Act 2017 received Royal Assent on 25 July. The Contract (Third Party Rights) (Scotland) Bill is before the Parliament for consideration.
The Commons Scottish Affairs Committee is conducting an inquiry into immigration, considering whether or not – and how far – the UK’s immigration system has been successful in addressing the specific employment challenges facing Scotland’s economy and public services. In particular, the inquiry is examining how easy it will be for non-UK citizens to move to Scotland after Brexit.
On 24 October, MSPs voted in favour of the Scottish Government’s decision (3 October) not to support unconventional oil and gas extraction (i.e. fracking) in Scotland. A common position to guide negotiations around any potential UK or GB wide frameworks after Brexit was agreed by the Joint Ministerial Committee (representing the nations and the UK) on 16 October. The First Minister announced that a Scottish National Investment Bank would be established, as part of the Programme for Government 2017-18, to take a ‘new approach’ on capital investment. The full Programme for Government 2017/18, published on 5 September, can be found here, including rolling out new social security powers, action on air quality and plans for a Minimum Age of Criminal Responsibility Bill. The Cabinet Secretary for Justice announced the appointment of the third Judicial Complaints Reviewer, a retired Deputy Chief Constable, on 14 August. The position was established by the Judiciary and Courts (Scotland) Act 2008 to review, when asked, the handling of a complaints investigation into members of the judiciary, to ensure that it had been dealt with in accordance with The Complaints About the Judiciary (Scotland) Rules 2016.
The Trade Union (Wales) Act 2017 received Royal Assent on 7 September, making amendments to the Trade Union and Labour Relations (Consolidation) Act 1992 – itself amended by the Trade Union Act 2016, passed at Westminster – alongside imposing prohibitions on using temporary workers to cover industrial action. The Landfill Disposals Tax (Wales) Act 2017 received Royal Assent on the same day. The Public Health (Minimum Price for Alcohol) (Wales) Bill was introduced into the Assembly on 23 October. The Regulation of Registered Social Landlords (Wales) Bill was introduced on 16 October, and is currently in committee. The Welsh Government is currently consulting on “Enabling Gypsies, Roma and Travellers”, ending on 21 December, and looking inter alia ways to improve social inclusion and to narrow the gap in educational and health outcomes. It is also consulting on “The Registration of town and village greens”. At Westminster, the Welsh Affairs Committee is conducting its “Brexit: agriculture, trade and the repatriation of powers” inquiry (announced on 21 September).
Strict segregation of boys and girls aged 9-16 within a mixed-sex secondary school caused detriment and constituted less favourable treatment for both male and female pupils respectively by reason of their sex and was therefore contrary to the Equality Act 2010 as direct discrimination. So held the Court of Appeal, overturning a decision of Jay J in the High Court ( PL 300) in relation to Al-Hijrah School a voluntary aided faith school for girls and boys aged between 4 and 16. The School has an Islamic ethos and for religious reasons believes that separation of the sexes from Year 5 onwards was obligatory. Complete segregation of boys and girls in the age range of 9 to 16 for all lessons, breaks, school clubs and trips is one of the defining characteristics of the School. This policy is public and apparent both to parents of potential pupils and to regulators. The school was assessed by OFSTED as “inadequate” in “effectiveness of leadership and management”. By a majority of 2 to 1 the Court held that the segregation did not impose a particular detriment on female pupils, with Lady Justice Gloster dissenting on this issue. OFSTED did not consider that girls were receiving a different or qualitatively poorer level of education than boys but it assessed that the segregation limited the pupils’ social development and the extent to which they were prepared for interaction with the opposite sex when they left school, and in that way they suffered educationally from the segregation. OFSTED concluded that this practice constituted unlawful discrimination contrary to the EA 2010. The School issued proceedings for judicial review of the Inspection Report, seeking an order that it be quashed. The High Court allowed the School’s claim. In the view of the Court of Appeal, the High Court had been wrong to approach the question of whether there had been less favourable treatment by reason of sex by looking at each sex as a group. Each girl pupil and each boy pupil is entitled, as an individual, to freedom from direct discrimination. The School’s policy prevented an individual girl pupil from interacting with a boy pupil only because of her sex; if she were a boy she would be permitted to interact with a boy pupil, and vice versa. It was reasonable for OFSTED to take the view that this policy was detrimental to each pupil as it had an adverse impact upon the quality and effectiveness of the education given to them by the School. As a result of the policy each pupil suffered less favourable treatment by reason of their sex. The Court of Appeal rejected the School’s argument that separate but equal treatment by reason of gender could not be unlawful discrimination, even if it was detrimental, if both sexes suffered the same detriment. Discrimination legislation should be given a wide and purposive interpretation rather than a narrow one. The statutory scheme embodied in the 2010 Act envisaged that both ‘separate but equal’ and ‘separate but different’ treatment could constitute unlawful discrimination. The clear inference from Chapter 1 of Part 6 of the Act, which deals with schools, is that Parliament did not envisage or intend segregation by sex in co-educational schools. It was not the mere fact of segregation which gave rise to discrimination (as would be the case if there were segregation based on race), but rather the impact of the segregation on the quality of education which the pupils would receive but for their respective sex. The motive for discrimination was irrelevant. The same was true of parental satisfaction with the School’s policy. Whilst the statutory provisions in the Education Act 1996 and the School Standards and Framework Act 1998 provided for the accommodation of parental choice in their children’s education, this could not negate the statutory right of each child to be educated in a non-discriminatory manner as required by the EA 2010 (HM Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah School  EWCA Civ 1426).
The Government and the Office for National Statistics published their responses to the Women and Equalities Committee report on Implementation of Sustainable Development Goal 5 in the UK ( PL 494). The response is here. The Government response to the Women and Equalities Committee report – Ensuring strong equalities legislation after the EU exit (HC 799, 28 February) was published on 11 October (HC 385) and is available here. The Committee is currently taking evidence for its inquiry into the workings of the Equality and Human Rights Committee.
Three reports were published. The first was an independent review by David Lammy MP into the treatment of, and outcomes for, black and ethnic minority individuals in the criminal justice system (8 September) available here. Among its 35 recommendations were: introducing assessments of a young offenders’ maturity, exploring how criminal records could be ‘sealed’, and allowing some prosecutions to be ‘deferred’. On 10 October, the Cabinet Office published the Race Disparity Audit, a project announced on the steps of Downing Street by Theresa May when she took office in July 2016. It brings together, and makes publicly available together, for the first time ethnicity data showing how different groups are treated across the public sector in areas including health, education, employment and the criminal justice system. Details are here. The Human Rights Commissions for the four home nations published a joint report “Disability Rights in the UK” (23 August) as part of the UK Independent Mechanism, a shadow report to the UN Committee on the Rights of Persons with Disabilities in advance of the UK’s appearance before the Committee in late August. The report is here. The EHRC also published (15 August) “Fair opportunities for all: A strategy to reduce pay gaps in Britain” making six recommendations outlining the action needed by government, in society and by business to improve equality in earnings for women, ethnic minorities and disabled people (here).
The House of Commons Library Briefing Paper (No 7979) “General Election 2017: results and analysis” was published on 8 September.
Applications by A (under Art 8, Art 13 and A1P1) to the European Court alleging that the UK had failed to provide an appropriate mechanism and effective remedy to secure the proper regulation of private sector activities and had failed to protect her from dust and noise pollution from the open-cast coal mining (that commenced 450m from A’s home were rejected as inadmissible since A had not exhausted all her domestic remedies). A argued that (absent a protective costs order) pursuing private nuisance proceedings carried a significant costs risk which in practice precluded her from bringing proceedings. A had invoked her Convention rights for the first time in her application for leave to appeal to the Supreme Court, and only then in a brief paragraph at the end of the grounds, which principally focused the lower courts’ treatment of her arguments under the Aarhus Convention and Directive 2011/92/EU of the European Union on the assessment of the effects of certain public and private projects on the environment. There was no reason to believe that A could not have argued before either the High Court or the Court of Appeal that the refusal to make a PCO would be in breach of the courts’ obligation under the ECHR to protect her from an interference with her home by a private company (Austin v UK App 39714/15, 12 September).
On 13 September, Commission President Jean-Claude Juncker, delivered his annual speech on the State of the European Union. To steer the reform agenda set out in his speech, President Juncker proposed a Roadmap for a More United, Stronger and More Democratic Union. A series of concrete initiatives were immediately adopted by the Commission – on trade, investment screening, cybersecurity, industry, data and democracy. Details are here.
The General Court had been right to uphold the Commission’s decision to refuse to register a citizen’s initiative – to enshrine in EU legislation the principle of the “state of necessity” whereby, when the financial and the political existence of a State was in danger because of the serving of an abhorrent debt, the refusal of its payment was necessary and justifiable – on the basis that it lacked a legal basis and so fell outside its powers. So held the CJEU in an appeal by A, the proposer, seeking to set aside the judgment of the General Court. Art 122(1) TFEU, according to which the Council may, in a spirit of solidarity between Member States, adopt measures appropriate to the economic situation did not cover measures whose main objective was to alleviate the severity of the financing difficulties of a Member State. It could not serve as a basis for the adoption of a measure or a principle enabling, in essence, a Member State to decide unilaterally not to repay all or part of its debt. Similarly, Art 122(2) TFEU, under which the Council might grant financial assistance from the Union to a Member State experiencing difficulties as a result of natural disasters or caused by natural disasters or exceptional occurrences beyond its control, did not justify the legislative introduction of a general and permanent mechanism of non-repayment of debt based on the principle of the state of necessity. Further, art. 122(2) concerned financial assistance granted solely by the Union, not that granted by the Member States. Here the principle of the state of necessity being advocated by A would cover not only debts owed by Member States to the Union, but also debts owed by Member States to other natural or legal persons, both public and private. It would thus not be simply “assistance granted by the Union” but (indirectly) assistance granted by other Member States and was thus outwith Art 122(2). Lastly, the principle of necessity could not be justified by Art 136 TFEU either, under which the Council adopts measures to strengthen the coordination and surveillance of budgetary discipline in euro area Member States, or to set out economic policy guidelines for those States. There was no reason to conclude that the adoption of the principle of necessity was intended to strengthen the coordination of budgetary discipline or fell within economic policy guidelines, especially since that principle would, in fact, result in replacing the free will of contracting parties, enshrined in Art 136 TFEU, with a legislative mechanism for the unilateral writing-off of public debt (Anagnostakis v Commission Case C-589/15 P, 12 September).
The CJEU dismissed actions brought by Slovakia and Hungary seeking to annul Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece (OJ 2015 L 248, p. 80). That decision was taken in response to the migration crisis that affected Europe in the summer of 2015 in order to help Italy and Greece deal with the massive inflow of migrants. It provided for the relocation from those two Member States to other EU Member States, over a period of two years, of 120 000 persons in clear need of international protection. It was adopted on the basis of Art 78(3) TFEU, which provides that ‘in the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament’. Slovakia and Hungary had argued (i) the decision was vitiated by errors of a procedural nature or arising from the choice of an inappropriate legal basis and (ii) that the decision was neither a suitable response to the migrant crisis nor necessary for that purpose. The CJEU held that the reference in Art 78(3) to consultation with the Parliament did not mean a legislative act was required. A legislative procedure needed to be followed only where a provision of the Treaties expressly referred to it, and Art 78(3) did not contain any express reference to a legislative procedure. The decision could therefore be adopted in a non-legislative procedure. Art 78(3) enables the EU institutions to adopt all the provisional measures necessary to respond effectively and swiftly to an emergency situation characterised by a sudden inflow of displaced persons. Since the decision was a non-legislative act, its adoption was not subject to the requirements relating to the participation of national Parliaments and to the public nature of the deliberations and vote in the Council. Neither was the Council required to act unanimously when it adopted the contested decision; the earlier Conclusions of the European Council of 25 and 26 June 2015, which stated that the Member States were to agree ‘by consensus’ related to another relocation plan. The relocation mechanism was not a measure that was manifestly inappropriate for contributing to achieving its objective, namely helping Greece and Italy to cope with the impact of the 2015 migration crisis. The Council did not make a manifest error of assessment when it took the view that the objective pursued by the contested decision could not be achieved by less restrictive measures. Lastly, the legality of the decision could not be called into question on the basis of retrospective assessments of its efficacy. The Council carried out, on the basis of a detailed examination of the statistical data available to it at the time, an objective analysis of the effects of the measure on the emergency situation in question (Slovakia and Hungary v Council Joined Cases C-643/15 and C-647/15, 6 September).
Freedom of Expression
The UK had not failed in its positive obligations to respect T’s rights under Art 8 when its domestic courts had not permitted T to serve defamation proceedings on Google out of the jurisdiction, Google having hosted a blog on its website. The blog, and its under-the line comments made several allegedly defamatory assertions about T’s reputation. So held the Chamber declaring T’s application inadmissible as manifestly ill-founded, the UK – through its courts – having acted within its wide margin of appreciation when determining T’s claim did not meet the “real and substantial tort” threshold required to serve defamation proceedings outside the jurisdiction. The Chamber was satisfied that the appropriate balancing exercise was conducted by the national courts, and that the reasons given for their decision were both “relevant and sufficient”. The approach of the UK’s courts was entirely in keeping with the position in international law. Indeed, the Council of Europe, the European Union, the United Nations and the Organisation for Security and Co‑operation in Europe had all indicated that ISSPs should not be held responsible for content emanating from third parties unless they failed to act expeditiously in removing or disabling access to it once they became aware of its illegality. There was nothing in Delfi v Estonia (App 64569/09,  ECHR) to assist T. There, the Grand Chamber was concerned with a large, professionally managed Internet news portal run on a commercial basis which published news articles of its own and invited its readers to comment on them; it expressly stated that it did not concern other Internet fora, such as a social media platform where the platform provider did not offer any content and where the content provider might be a private person running a website or blog as a hobby (Tamiz v UK App 3877/14 19 September).
An application for judicial review, to quash the decision of the Press Recognition Panel (PRP) granting recognition to IMPRESS under the Royal Charter on Self-Regulation of the Press 2013, failed. NMA argued that the PRP had misinterpreted and misapplied the Charter and the Court should declare that IMPRESS failed to meet the Charter’s Recognition Criteria. The Court rejected NMA argument that it was implicit in the phrase “on behalf of” relevant publishers that a Regulator should have the support of a minimum number of or a proportion of the total body of publishers. There was simply no size requirement in the Charter biting on a Regulator. By contrast where the Charter did impose a requirement relating to numbers of persons or size of group, it made express provision. NMA’s arguments on sources of funding and impartiality were also rejected by the Court (R (oao News Media Association v Press Recognition Panel  EWHC 2527 Admin). The IMPRESS Standards Code became operational from 24 July.
An order requiring B, a journalist to disclose details of her dealings with a source X violated B’s rights under Art 10, even where the source had made himself known to the police. So held the Chamber (Fifth Section) in a case brought by B, who had published in a newspaper details about company Z’s future, based in part on a letter passed to her by X written by Y, an attorney, purportedly expressing on behalf of Z’s shareholders concern about Z’s liquidity. Publication of the article and details contained in the letter led to a sharp fall in share prices. The letter was in fact written at X’s sole request. He was indicted for market manipulation and in the course of proceedings, the prosecution summonsed B as a witness, X having by then admitted initiating the letter and being the source of the article B published. B refused which led to satellite litigation all the way to the Norwegian Supreme Court. The Chamber held the order constituted a disproportionate interference – the reasons while relevant were insufficient. There were no allegations of unlawful activity by B. Furthermore, a journalist’s protection under Art 10 could not automatically be removed by virtue of a source’s own conduct, albeit that protection here could not reach the same level as that afforded to journalists who had been assisted by persons of unknown identity to inform the public about matters of public interest or matters concerning others. That said, here the source’s harmful purpose therefore carried limited weight at the time when the order to testify was imposed (Becker v Norway App 21272/12, 5 October).
Government and Civil Service
There was no prospect of the Supreme Court holding that the decision in R v Jones  UKHL 16 was wrong or the reasoning no longer applicable, and so no prospect of the Supreme Court departing from that decision. That case had decided that although there was a crime of aggression under customary international law, there was no such crime as the crime of aggression under the law of England and Wales. So held the Administrative Court in an application for judicial review of a decision of a district judge, a refusal to issue a summons for a private prosecution of the then Prime Minister, Foreign Secretary and Attorney-General for the crime of aggression for their
participation in the decision taken in 2003 to invade Iraq and overthrow the regime of President Saddam Hussein (R (oao General Abdul Waheed Shannan Al Rabbat v Westminster Magistrates Court  EWHC 1969 Admin).
The Commons Public Administration and Constitutional Affairs Committee commenced (20 September) its inquiry into Civil Service effectiveness and capacity to meet current challenges.
An application brought by relatives of D, shot dead by the Metropolitan Police in London (and whose death sparked the riots in the summer of 2011), complaining that the investigation into D’s death failed to comply with the procedural duty under Art 2 was declared inadmissible as manifestly ill‑founded. There had been no failure to carry out an effective investigation. The main complaint was collusion, actual or risked: the police officers involved in the fatal shooting were not kept separated until they wrote their accounts of the incident until about three days after the shooting; no steps were taken to prevent them from colluding; and they were not instructed not to talk to one another. While it was not clear that this had been aired in the domestic proceedings – the closest was arguing that the IPCC acted contrary to the Art 2 duty in failing to issue directions to prevent officers from conferring (see  PL 571) – the Committee did not consider it necessary to decide whether the applicant exhausted domestic remedies. Even accepting that the failure to prevent the risk of collusion identified by the domestic courts amounted to a significant shortcoming in the investigation in this case, it did not mean that there had been a violation of the procedural limb of Art 2. Such would arise where a failure to prevent the risk of collusion was one shortcoming in the context of others which together, amounted to significant failings. The argument that the IPCC was not independent was also unsuccessful in light of Da Silva v UK (App 5878/08,  ECHR 1594). In the context of evaluating whether the investigation was adequate, the court’s role was to ask whether it was capable of leading to the establishment of the facts, a determination of whether the force used was or was not justified in the circumstances and identifying – if appropriate – punishing those responsible. Applying that test to the present proceedings, the Court echoed the conclusions of the domestic courts that the investigations fully satisfied the requirements of the procedural obligation under Article 2 (Duggan v UK App 31156/16 12 September).
Section 2 of the Suicide Act 1961, which criminalises those who encourage or assist in the suicide of another was not incompatible with C’s rights under Art 8. So held the High Court refusing an application by C, a 67 year old man diagnosed as suffering with Motor Neurone Disease, for a declaration under s.4 of the HRA that s.2 was incompatible with his rights, set out as distinct provisions in domestic law under the HRA (following Re G (Adoption: Unmarried Couple)  UKHL 38). C wished, at the point of prognosis of six months or less to live, to have the option ending his life at a time of his choosing. The medical circumstances and thus the factual scenario more closely resembled those in R (Pretty) v Director of Public Prosecutions  UKHL 61 than the more recent applicants in R (Nicklinson) v Ministry of Justice  UKSC 38. As to Nicklinson, the Court considered that Parliament had considered the matter with the benefit of the judgments of the Supreme Court in that case, and had decided to maintain s.2 in place, after taking all relevant countervailing arguments into account. There were thus powerful constitutional reasons why Parliament’s assessment of the necessity of maintaining s.2 in place should be respected (R (oao Conway) v Secretary of State for Justice  EWHC 2447 Admin).
Alongside the EU Withdrawal Bill, the JCHR (full membership of which was only finally agreed on 30 October) has identified four other Bills in the 2017-19 session as likely to raise particularly significant human rights issues: the Data Protection Bill, Sanctions and Anti-Money Laundering Bill, Immigration Bill, and Draft Domestic Violence and Abuse Bill. The Women and Equalities Committee is currently taking evidence for its inquiry into the workings of the Equality and Human Rights Committee.
Various applications against Ukraine, alleging prolonged non‑enforcement of domestic final judicial decisions (and thus breaches of Art 6 and A1P1) each raising issues similar to those examined in the pilot judgment in the case of Ivanov v Ukraine (App 40450/04, 15 October 2009) and part of a group of 12,143 Ivanov-type follow-up applications were struck out of the list by the Grand Chamber. The Committee of Ministers was better placed and equipped than the Court to monitor the remedial measures to be adopted by Ukraine. The instant problems originated in the same systemic problem identified in the Ivanov pilot judgment, namely the series of dysfunctions in the Ukrainian legal system which hindered the enforcement of final judgments, combined with the absence of effective domestic remedies in respect of such shortcomings. As in Ivanov, the structural problems with which it was dealing were large-scale and complex in nature, requiring the implementation of comprehensive and complex measures, possibly of a legislative and administrative character, involving various domestic authorities. At the heart of the present applications was the division of competence established by the Convention between, on the one hand, the Court, with the function of “ensur[ing] the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto” (Art 19) and, on the other, the Committee of Ministers “which shall supervise [the] execution” of the final judgments of the Court (Art 46). It had become necessary to clarify where the responsibilities sat in addressing issues arising out of a failure to execute a pilot judgment. There were 120,000 people with unenforced judicial decisions; such a massive influx of applications was liable to affect the Court’s ability to fulfil its mission under Art 19 in relation to other meritorious applications warranting examination. As at the date of delivery of the instant judgment, 72,100 cases earmarked as meritorious were awaiting examination, of which over 27,000 concerned non-repetitive Convention issues, including allegations of serious human rights violations (Burmych v Ukraine App 46852/13, 12 October).
On 25 October, the Committee of Ministers of the Council of Europe adopted Interim Resolution CM/ResDH(2017)379 (here) notifying Azerbaijan of its formal intention, at its 1302nd meeting on 5 December, to refer to the Court of Human Rights under Art 46(4) the question whether Azerbaijan had failed to fulfil its obligation under Art 46(1) to implement the Mammadov v. Azerbaijan judgment (App 15172/13, 22 May 2014). There the Court ruled that the arrest and extended detention of Mammadov, an opposition politician, was in violation of Arts 5(1), 5(4) 6(2) and 18. More than three years later, Mr Mammadov remained in prison. This referral will be the first time the Art 46(4) power, introduced by Protocol 14 in 2010, has been used.
Immigration, extradition, deportation and asylum
The deportation of N, a Nigerian national convicted of various serious offences during his time in the UK, pursuant to the new Immigration Rules (which came into force in 2012) did not constitute a disproportionate interference with family life under Art 8. So held the Chamber (by a majority of 6:1, Judge Turkovic dissenting) in the first Strasbourg case to consider the application of the new Rules, which created a strong presumption in favour of deportation of foreign criminals: under paragraphs 398-399A, deportation was deemed to be conducive to the public good if they were sentenced to four or more years’ imprisonment. In such cases, the public interest would only be outweighed in “exceptional circumstances”. N’s most recent sentence was in 2008 when he received a seven-year sentence for supplying class A drugs. He was released on licence in 2011. N claimed deportation would be disproportionate: he had arrived in the UK just before his 2nd birthday and had lived in the UK since, for 28 years. His criminal offences were committed when he was either a minor or young adult, and he had not reoffended since his release in March 2011. He had a son in the UK but had never lived with him or had primary responsibility for his care and upbringing. The facts of the applicant’s case undoubtedly required careful scrutiny, given the length of his residence in the UK, his ongoing relationship with his son and other family members there, and his limited ties to Nigeria. The Court’s view was that the Government had conducted a full and proper assessment of the proportionality of N’s deportation. He was almost thirty years’ old, was a single adult in good health who should readily be able to establish himself in Nigeria, where his parents still had family. Having regard to his long history of sustained and serious offending, which included drug dealing and crimes of violence, the public interest in favour of deportation carried great weight. In the view of the majority, regardless of whether or not paragraphs 398 and 399 of the Immigration Rules could be said to impose a higher standard than that of proportionality, there was no doubt that in the present case that all the domestic decision-makers gave thorough and careful consideration to the proportionality test required by Art 8, including the relevant criteria set out in Strasbourg case‑law. Having balanced N’s Art 8 rights against the public interest in deportation, they concluded that his deportation would not constitute a disproportionate interference with his right to respect for his family and private life (Ndidi v UK App 41215/14, 14 September).
There remained a real risk of a flagrant denial of justice if N and the four applicants were returned to Rwanda. The system there was such that there was a real risk that innocent men might be wrongly convicted. So held the Administrative Court in an appeal from a decision of the (then) Deputy Senior District Judge sitting in the Westminster Magistrates’ Court declining to order extradition, in proceedings brought by the Rwandan government seeking the return of N and four others to face charges based on the alleged active role they played in the genocide in 1994. The Court’s concerns focussed on the political pressures on the judicial system, the independence of the judges, the difficulties and fears of witnesses and particularly the capacity of defendants to allegations of genocide to obtain and present evidence and be adequately represented in their defence. Furthermore, for two of the men, the Court concluded they should not in any event be returned. Their return would breach the principle of double jeopardy or would represent an abuse of process. They had each been the subject of earlier criminal proceedings in their absence in Rwanda, conducted in courts known as gacaca courts. In respect of the other three, the Court concluded the Government of Rwanda should have a final opportunity to give firm and reliable undertakings to put in place conditions which would reduce the risk of unfair trial, so that they may lawfully be returned: it was highly desirable that trial for these crimes should take place in Rwanda. If they were not returned to Rwanda, these three could still be tried here under the Coroners and Justice Act 2009, provided the Government of Rwanda cooperated (Government of Rwanda v Nteziryayo  EWHC 1912 Admin).
Under Art 19(2) of the Charter of Fundamental Rights of the EU, a request for extradition originating from a third country concerning a EU citizen who, in exercising his freedom of movement, left his Member State of origin in order to reside on the territory of another Member State, must be rejected by the latter Member State where that citizen runs a serious risk of being subjected to the death penalty in the event of extradition. So held the CJEU on a preliminary reference from Germany in a case involving A, an Austrian doctor, invited by S to Germany to speak at a conference. A was the subject of an extradition request from the UAE to face a death sentence, following his in absentia conviction for murder as a result of various deaths consequent on operations he had performed there (Schotthöfer & Florian Steiner GbR v Adelsmayr, Case C‑473/15 6 September).
The employment of R to carry out domestic tasks in the residence of Mr and Mrs A-M was not an act in the exercise of the diplomatic functions of the Saudi Arabian mission. Nor was it done on behalf of Saudi Arabia, even though it assisted Mr A-M in the performance of his official functions. It was not therefore the exercise of an official function, the critical test of residual immunity for diplomats once their posting had ended under Art 39 of the Vienna Convention on Diplomatic Relations 1961, ncorporated into UK law by s.2(1) of the Diplomatic Privileges Act 1964. Consequently in claims brought before the Employment Tribunal by R alleging mistreatment in the course of her employment and that she was a victim of trafficking (both of which allegations were yet to be determined at trial) the Tribunal did not lack jurisdiction on the basis of and claims by A-M to diplomatic immunity. So held the Supreme Court, overturning the Court of Appeal. Diplomatic immunity is not an immunity from liability. It is an immunity from the jurisdiction of the courts of the state which hosts the diplomat. The Convention draws a fundamental distinction between the acts of a diplomat which are performed in the exercise of an “official function” and those which are not. The former are immune because they are committed on behalf of a state. The immunity of the latter is justified on the pragmatic basis that it facilitates diplomatic relations. Art 31(1) confers diplomatic immunity on both types of acts, subject to specified exceptions. Once a diplomat’s posting has come to an end, his or her immunity after leaving the receiving state is ordinarily limited to a “residual immunity” under Art 39(2). That residual immunity applies only to acts performed the exercise of “official functions”, limited to acts which were part of the diplomatic functions of the diplomatic mission, performed on behalf of the state which that diplomat represented. The Court left open the question of possible liability had Mr A-M remained in post. Lord Sumption, with Lord Neuberger agreeing, obiter concluded that A-M would then have been entitled to immunity. The exception to the general claim for immunity (in s.31(1)) in civil claims “relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions” set out in Art 31(1)(c) did not cover the position here. A majority (Lord Wilson, with whom Lady Hale and Lord Clarke agreed) welcomed the lack of any binding decision as to whether Mr A-M would have been immune, had he remained in his post (Reyes v Al-Malki  UKSC 61).
The State Immunity Act 1978 renders a foreign state immune from the jurisdiction of a UK court in a claim based on the foreign state’s employment of the claimant, where the claimant either: (i) at the time of the contract, was neither a UK national nor UK resident; or (ii) worked for the foreign state’s diplomatic mission (under s.4(2)(b) or s. 16(1)(a) respectively). However, such a blanket claim to immunity, based either on nationality or residence of any claimant, or the fact of employment simpliciter by a diplomat, was not compatible with the narrowing of the doctrine as a matter of customary international law which conferred immunity only for sovereign acts (jure imperii) and not for private acts (jure gestionis). So held the Supreme Court dismissing appeals from an earlier holding of the Court of Appeal in the combined cases, brought by B and J, Moroccan nationals employed as domestic workers at the Sudanese and Libyan Embassies in London respectively, following their dismissals. That being so – and since the European Court of Human Rights holds article 6 of the ECHR to have been violated where a claim to state immunity was unfounded in international law – those provisions of the 1978 Act were both incompatible with Art 6 and, as accepted here by the Secretary of State on the facts, with Art 47 of the EU Charter of Fundamental Rights. The relevant sections of the 1978 Act were therefore disapplied in respect of claims therefore derived from EU law for discrimination, harassment and breach of the Working Time Regulations. The other claims – failure to provide payslips or a contract of employment, unpaid wages, failure to pay the national minimum wage and unfair dismissal – were barred by the 1978 Act, a declaration of incompatibility under s.4 of the HRA not affecting their continuing operation (Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs; Secretary of State for Foreign and Commonwealth Affairs and Libya v Janah  UKSC 62).
Antony Zacaroli QC (Chancery Division, with effect from 13 November); Julian Knowles QC, HHJ Jane Moulder, Amanda Yip QC, Sara Cockerill QC, Martin Spencer QC, Tribunal Judge Peter Lane, Simon Bryan QC, HHJ Julian Goose QC, Akhlaq Choudhury QC, and Matthew Nicklin QC (Queen’s Bench Division, all with effect from 2 October 2017); Upper Tribunal Judge Gwynneth Frances Knowles QC, Jonathan Cohen QC and David Williams QC (Family Division, all with effect from 2 October). Sir Brian Leveson has been appointed as Head of Criminal Justice with effect from 13 October.
The rights and remedies available at common law when the HRA came into force precluded the grant of a declaration against a judge and were governed by the principle of judicial immunity. The HRA and the Civil Procedure Rules (CPR) did not limit, abrogate or carve out an exception to judicial immunity in respect of HRA claims nor by s.8 did they create a new remedy save in respect of damages for a breach of Art 5(5). To do so, express words would have been needed. They were not used, and accordingly, the principles continued to have full effect. So held the High Court in a claim brought by M (a 26 year old man with full mental capacity but needing round-the-clock care), seeking a declaration that an earlier urgent, without notice, out of hours order by Mostyn J in favour of an NHS Trust was unlawful on the ground that it breached his rights under Arts 5, 6 and 8 of the ECHR. That order was made under the inherent jurisdiction on the basis that there was imminent risk to M’s life and welfare at home. Its effect was that M was forcibly removed from his home by the police and taken to hospital. What the statutory scheme in the HRA did was to create a free-standing remedy in limited circumstances which had to be pursued before a competent court. For inferior courts and tribunals, the remedy was available by exercising a right of appeal, judicial review (where applicable) or a claim to a judge of the High Court in accordance with CPR rule 7.11 or the FPR. For senior courts, that third option could not have effect; the damages claim had to be brought in appeal proceedings in the Court of Appeal. In any event, s.9(3) of the HRA only modified the principle of judicial immunity to the limited extent of giving effect to Art 5(5) of the ECHR, limited to a right to damages against the Crown including the case where a judge acted in good faith. That was not what was being pursued here. In England and Wales, a declaration could not be granted against a judge personally and there was no provision in the HRA for it to be granted against the Crown (Mazhar v Lord Chancellor  EWHC 2536 Fam).
Lord Reed spoke on “Comparative Law in the Supreme Court of the United Kingdom” at the Centre for Private Law, University of Edinburgh, 13 October and Lady Hale delivered “Judges, Power and Accountability” at the Constitutional Law Summer School, Belfast, 11 August.
While a local authority was not negligent in the selection or supervision of foster parents, it was vicariously liable for abuse committed by them, but was not liable on the basis of a non-delegable duty. So held the Supreme Court by a majority (4:1, Lord Hodge dissenting), overturning both the High Court and Court of Appeal in a claim brought by A who was in the care of the local authority N from the ages of seven to eighteen but who suffered physical, emotional and sexual abuse at the hands of different foster parents. Such a proposition was too broad, and fixed local authorities with too demanding a responsibility. However, applying the principles set out in Cox v Ministry of Justice  UKSC 10 on the imposition of vicarious liability, the local authority was vicariously liable for the acts of the foster parents in the present case for the following reasons: integration and business activity (the foster parents were not carrying on an independent business of their own but were acting for the benefit of the local authority); creation of risk (the placement of children with foster parents created a relationship of authority and trust between the foster parents and children in circumstances where close control could not be exercised by the local authority); control (the local authority exercised a significant degree of control over the foster parents in the form of approval, inspection, supervision and removal); ability to pay damages (most foster parents have insufficient means to meet a substantial award of damages); and there was no evidence to suggest that imposing vicarious liability would discourage local authorities from placing children in care with foster parents, and encourage them instead to place them in residential homes, at much greater cost (Armes v Nottinghamshire CC  UKSC 60).
The House of Lords Citizenship and Civic Engagement Committee, appointed on 29 June, continues its inquiry into citizenship and civic engagement, looking at democratic engagement, British values and citizenship education. The Committee on Political Polling and Digital Media held its second public evidence session on 12 September, focussing on the impact of social media on political opinion polling, the prospect for social media analysis to provide an alternative to traditional approaches to analysing public opinion and how the media reports on opinion polls when they are published. The Work and Pensions Committee published its report “Universal Credit: the six-week wait” (HC 336, 27 October) here and on 26 October, the Justice Committee published “Disclosure of Youth Criminal Records” (HC 416) here. The Lords Communications Committee is currently investigating the UK advertising industry.
The Lord Speaker’s committee on the size of the House of Lords, chaired by Lord Burns, has recommended, for the first time in history, establishing a maximum size of the House of Lords, capped at 600 Members. New Members would be appointed on 15 year terms and give an undertaking to leave the House after that period. Failure to do so would be a breach of the Code of Conduct. No party would be allowed an absolute political majority and a minimum of 20% of seats would be reserved for independent crossbench Members largely appointed by the House of Lords Appointment Commission. Political appointments would be shared between the parties in line with the result of the previous general election, defined as an average of the parties’ share of the national vote and of the seats won in the House of Commons. The report is available here.
Towards the end of the three-month review period, media reports of several MPs sexual misconduct surfaced. These included allegations of sexual harassment, bullying and rape both within the palace of Westminster and while MPs were on parliamentary or party business. At the time of writing, this had led to the resignation of one Minister (Michael Fallon, Secretary of State for Defence), one Whip (Chris Pincher), the suspension of the whip for two MPs, one Labour and one Conservative, and referrals to both the police and internal party disciplinary and complaints committees, and the Cabinet Office, of several more, prompting calls for cross-party grievance procedures for victims of sexual harassment to be agreed.
On 12 September, the Commons passed a government motion, altering parliamentary rules to provide the government with a majority on those parliamentary committees with an odd number of members: HC Deb 12 September, vol 628, col 765 (here).
The House of Lords Constitution report “The Legislative Process: Preparing Legislation for Parliament” (HL 27, 25 October), the first as part of an ongoing inquiry, called for the Government to make changes to the way that legislation is developed to enable thorough parliamentary scrutiny and improve the quality of laws on the statute book. The Committee made a range of recommendations including: that legislation should be made more accessible and easier to understand; that consolidation was urgently needed in several areas of the law; and that the Government should routinely publish the evidence base for proposals and that, if a robust evidence base was not available, the Government should explain why it was nevertheless appropriate to proceed; that piloting the application of policy was an important way of developing effective policies over time, and that the Government should develop guidance for departments setting out when piloting is appropriate or desirable. Finally, the Government should publish draft Bills for pre-legislative scrutiny more frequently, as a regular feature of the legislative process. The report is here. The Committee also published a short report (HL 28, 20 October) on whether the Salisbury-Addison Convention applied when there is a minority government (here).
The independent review into serious incidents and deaths in custody, by Dame Elish Angiolini, published its report on 30 October. The review was announced in July 2015 and started work that October. It makes 110 recommendations. The report and government response is here.
Article 47 of the EU Charter requires an effective remedy for directly effective EU rights, under the Equal Treatment Directive (Council Directive 2000/78/EC), and national law procedures had to comply with the principles of effectiveness and equivalence. This required a reading of s.42(1) of the Equality Act 2010 that would give police officers the right to bring proceedings before Employment Tribunals in order to challenge not only discrimination by chief officers and responsible officers but discriminatory conduct or decisions by (as here) the Police Misconduct Panel and Police Appeals Tribunal. So held the Supreme Court allowing P’s appeal. Reading words into section 42(1)(a) ran with the grain of the legislation and was warranted under the EU principle of conforming interpretation. This did not mean the court was amending the legislation and was merely a way of interpreting the legislation to conform with EU law in a case such as the present. P had been dismissed without notice by the Panel following an investigation. P accepted the misconduct but had sought to argue it was the result of suffering PTSD from an assault on her during her duties. P brought claims in the Employment Tribunal alleging the Panel had discriminated against her on grounds of her disability but these were struck out, barred by the principle of judicial immunity. The reasoning of the Court of Appeal in Heath v Commissioner of Police of the Metropolis  EWCA Civ 943 (which held that EU law could not displace the common law rule of judicial immunity), was unsound (P v Commissioner of Police of the Metropolis  UKSC 65).
The HMICFRS report Stolen freedom: the policing response to modern slavery and human trafficking (24 October) examined how the police in England and Wales were tackling modern slavery and human trafficking crimes, including their use of the powers and provisions set out in the Modern Slavery Act 2015. Overall, while progress had been made, the police service has much to do if it is to develop an effective, coherent and consistent response to modern slavery and human trafficking.
Where someone (P) was arrested unlawfully (a fact conceded by the police) and the police failed to prove that, if he had not been arrested unlawfully, P not only could but would have been arrested lawfully, they were entitled to more than nominal damages. So held the High Court, applying R (Lumba) v Secretary of State for the Home Department  UKSC 12, in a claim by P for damages after he was arrested for rape and murder but later released without charge. It was not enough for a defendant in the position of the Secretary of State in Lumba or the Chief Constable here to show that the counterfactual (i.e. what would have happened if the tort had not been committed) could have resulted in the same outcome as had been caused by the tort: a defendant must go on to show that it would have done so. The principles set out in Lumba lead to an award of nominal damages if no loss has been suffered because the results of the counterfactual were the same as the events that happened. If and to the extent that they diverge (e.g. because a lawful arrest would not have occurred at the time but would have occurred later) the Court would have to decide on normal tortious compensatory principles whether and to what extent a substantial award of damages was merited for the divergence in outcome. While there was information available to the police here that could have provided an arresting officer with reasonable grounds for a lawful arrest, there was only one designated Arresting Officer who had sufficient information and had been sufficiently briefed to enable her to arrest P lawfully. She was not present at the time of the unlawful arrest. Furthermore, if P had not been unlawfully arrested as and when he was, he would have been unlawfully arrested by one of a number of other police officers who were at the scene. That arrest would also have been unlawful because none of the police officers at the scene had sufficient information or had been sufficiently briefed to enable them to make a lawful arrest (Parker v Chief Constable of Essex  EWHC 2140 QB).
Prisoners and mental health detainees
The Parole Board Annual Report and Accounts 2016/17 was published on 11 July here and the work of the Board, the effectiveness of the parole system and the circumstances of people serving indeterminate sentences of imprisonment for public protection (IPP prisoners) is currently being investigated by the Commons Justice Select Committee.
Aspects of Home Office statutory guidance “Adults at Risk in Immigration Detention” (AARSG), issued under s.59 of the Immigration Act 2016 – and indicating categories of people who should only be considered for immigration detention in exceptional circumstances as being particularly vulnerable to harm – were unlawful in that they defined ‘torture’ (one of the criteria of exceptionality) unduly restrictively in following the UNCAT definition. That definition was limited to acts performed by state agents or in which they acquiesced or were complicit. So held the High Court in various claims brought by those affected by the new guidelines. Not only was the scope of the UNCAT definition narrower than previously determined by the High Court in EO and Others v Secretary of State for the Home Department  EWHC 1236 (Admin), the definition of torture used there would require medical practitioners to reach conclusions on political issues which they could not rationally be asked to reach. It was not open to the Secretary of State by issuing policy statements to alter the meaning of a statutory instrument, whether expressly or by necessary implication. The AARSG was but guidance, so described by statute. It was not a form of delegated legislation, albeit issued pursuant to a statutory duty and with formal expression of Parliamentary approval. The AARSG could no more expressly remove or alter the requirement in Detention Centre Rules relating to medical reports than it could change the meaning of words used in it, whether expressly or by some necessary implication. Therefore, “torture” in those Rules continued to mean what the High Court in EO found it to mean: “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed, or intimidating or coercing him or a third person, or for any reason based upon discrimination of any kind.” Furthermore, the new definition of torture conflicted with the purpose of s.59, and lacked a rational or evidence base (Medical Justice and others v Secretary of State for the Home Department  EWHC 2461 Admin).
In an oral statement to the House on 2 November, the Secretary of State for Justice announced plans to respond to the various Strasbourg judgments over the years on prisoner voting. The Government proposes administrative changes to Prison Service guidance but no changes to the Representation of the People Act 1983. First, the UK will maintain the bar on all convicted prisoners in custody from voting, making this clear to criminals when they are sentenced. Secondly, the Government will reinstate the right to vote for those released back in the community on Temporary Licence, to bring them into line with those released on licence using an electronic tag under the Home Detention Curfew. This would not be an automatic entitlement and would be subject to rigorous risk assessment, estimated to affect up to one hundred offenders at any one time (here).
Security and Intelligence
The revocation of R’s national security clearance – a high-level civil servant within the Czech Ministry of Defence – based on restricted classified information and evidence not seen or passed to R or his legal team – either during the revocation process or the administrative appeals that followed did not constitute a breach of Art 6, the right to a fair hearing in the determination of civil obligations. So held the Grand Chamber by a majority of ten votes to seven, in an application by R arguing that both non-disclosure to him – where the material was disclosed to the administrative tribunals – and the fact that the grounds of revocation were never communicated constitute a breach. Having regard to the proceedings as a whole, to the nature of the dispute and to the margin of appreciation enjoyed by the national authorities, the Court considered that the restrictions curtailing R’s enjoyment of the rights afforded to him in accordance with the principles of adversarial proceedings and equality of arms were offset in such a manner that the fair balance between the parties was not affected to such an extent as to impair the very essence of the applicant’s right to a fair trial (Regner v Czech Republic App 35289/11, 19 September).
The Independent Reviewer of Terrorism Legislation Max Hill QC delivered the Tom Sargant Memorial Lecture for Justice on 24 October. In a wide-ranging speech, he addressed the Home Secretary’s recent announcement (at the Conservative Party conference) that the government intended to change the law, strengthening the existing offence of possessing information likely to be useful to a terrorist (s.58 Terrorism Act 2000), so that people who repeatedly viewed terrorist content online could face up to 15 years in prison. In his view “We do not, and should not criminalise thought without action or preparation for action. Thought with steps towards action can be terrorism. Thought without action or preparation for action may be extremism, but it is not terrorism.” He also offered the view that “we don’t need more terrorism offences, and there may be examples of redundant terrorism offences which time has proved are not as necessary as Parliament thought”, and on sentencing powers for terrorism offences. The full text of the lecture is here. Mr Hill also delivered the Old Bailey Lecture to the Criminal Bar Association on 19 September, here.
The Prevent Duty Guidance and the Higher Education Prevent Duty Guidance issued in July 2015 under powers in s.29 of the Counter-Terrorism and Security Act (CTSA) 2015 explaining how universities and other further educational institutions should give effect to their duty under s.26(1) of the CTSA were not unlawful. B held lawful orthodox conservative religious views, shared by many others, and had spoken at universities at the invitation of student societies, notably Islamic Societies, chaired or participated in panel discussions, and led prayers at mosques. He had challenged the Guidance documents on the ground that they were ultra vires s.29, that they failed to comply with the duty in s.31 CTSA to have particular regard to the duty to ensure free speech in higher education institutions, and that they breached common law and ECHR rights in relation to free speech, in their lack of clarity, legitimate need and proportionality. On that latter, the Court decided that B lacked capacity as a victim though it did go on to give reasoned judgment on the issue as well. Neither did the collection, storage and dissemination of data by the Extremism Analysis Unit constitute an interference with B’s rights under Art 8 or at least did not do so at the level required to constitute an interference for those purposes. It would in any event have constituted a proportionate interference. Lastly, the actions of the EAU did not reach the level of “surveillance” at all, and certainly not directed surveillance, as to trigger the Regulation of Investigatory Powers Act 2000 (R (Salman Butt) v Secretary of State for the Home Department  EWHC 1930). B has instituted separate libel proceedings for his inclusion on a press release accompanying the Guidance listed him as a ‘hate preacher’: see R (Salman Butt) v Secretary of State for the Home Department  EWHC 2619 (QB)).
With effect from 29 September, under the Proscribed Organisations (Name Change) (No. 2) Order 2017 (SI 944/2017) Scottish Dawn and NS131 (National Socialist Anti-Capitalist Action) were banned, as aliases of National Action, the neo-Nazi group which was proscribed in December 2016.
The Prime Minister spoke at the United Nations General Assembly (20 September) on preventing terrorist use of the internet, urging tech companies to develop new technological solutions to prevent such content being uploaded in the first place. The text of the speech is here. On 25 September, the Minister of State for Security gave a direction to Ofcom (under s.5 of the Communications Act 2003), requiring commercial multi-user gateways to be licensed only where the supplier could demonstrate that callers could be identified, in order to ensure the security and intelligence agencies, law enforcement and other emergency services had access to the information they need to keep the public safe. The Independent Reviewer spoke on “Responding to terrorists’ use of social media: legislation, investigation and prosecution” at Swansea University on 28 June. The full text is here.