UK Constitutional Law Association

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Lewis Graham: Hallam v Secretary of State: Under What Circumstances Can the Supreme Court Depart from Strasbourg Authority?

The Supreme Court recently handed down its decision in R (Hallam) v Secretary of State for Justice [2019] UKSC 2. It is an important and complex judgment, featuring seven separate judicial opinions and running to over 200 paragraphs. The central question was whether certain provisions of UK law concerning compensation for miscarriages of justice were compatible with the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR). Answering this required consideration of whether the provisions of the Convention were engaged at all in such cases. To confound matters, a previous Supreme Court authority – R (Adams) v Secretary of State for Justice [2011] UKSC 18; [2012] 1 AC 48 (“Adams”) – had answered “no”, but a more recent Grand Chamber decision of the Strasbourg Court – Allen v United Kingdom (app. no. 25424/09), judgment of 12 July 2013 [GC] (“Allen”) appears to have said “yes’. The Supreme Court, then, was faced with a choice: follow its own precedent or follow Strasbourg?

Section 2(1) of the Human Rights Act 1998 requires that domestic courts, including the Supreme Court, must “take into account” relevant Strasbourg jurisprudence. Much has been said on this ambiguous obligation, but the broad position is reflected in the famous Ullah principle, which mandates that the UK courts “keep pace with the Strasbourg jurisprudence as it evolves over time” (Ullah v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323, [20]). As Lord Rodger once put it: where “Strasbourg has spoken, the case is closed” (Secretary of State for the Home Department v AF [2009] UKHL 28; [2009] 3 WLR 74, [98]). Thus, the Supreme Court has abandoned precedents regarding respect to evictions by public landowners and differential treatment of prisoners in light of subsequent contrary rulings by the European Court.

Of course, as is well known, the obligation to “take into account” relevant jurisprudence does not translate into an absolute obligation to mirror all Strasbourg cases – the Supreme Court in particular has a level of discretion when deciding whether to follow Strasbourg authority. In Hallam, a majority of judges (5-2, with Lords Reed and Kerr dissenting) opted to exercise that discretion, choosing to follow domestic precedent notwithstanding the contrary European case law. The justifications provided for doing so are numerous and varied, as different judges place emphasis on different arguments. What follows is a sketch of at least six possible routes, all of which feature to some degree in Hallam, which might allow a judge to avert Strasbourg authority. The first three are now established in the case law; the latter three are much more novel (and potentially controversial).

Options 1-3

I. Inapplicability on the facts

The first way of wrangling out of Strasbourg precedent is, ingeniously, to avoid treating it as precedent in the first place. There is an element of this in Hallam; one of the arguments Lords Mance ([70]) and Lloyd-Jones ([137]-[138]) put forward is that the findings in Allen are confined to that case’s own facts and circumstances, and thus not binding in the apparently different circumstances before them in Hallam. But this approach was disavowed by the majority of the court, who (rightly) saw Allen as directly applicable in the case, and clearly at odds with the established position (see, e.g. Lady Hale at [77] and Lord Wilson at [92]).

II. Weak authority

Another route might be to suggest that an alleged authority does not, in fact, reflect Strasbourg’s true position, or that the corpus of case law forms an inconsistent, or incomplete picture. The court in Horncastle [2009] UKSC 14; [2010] 2 WLR 47 famously declared that it would only follow ECHR case law which was “clear and constant” ([14]). Allen is a judgment of the Grand Chamber, a distinction which has previously been considered to carry more authoritative weight (e.g. Horncastle, [120]; Poshteh [2017] UKSC 36; [2017] AC 624, [36]-[37]).Yet despite this, the majority of judges in Hallam attempt to paint Allen as a weak, unreliable authority; the Strasbourg position is described as “not settled” (Lord Mance, [73]), “evolving” (Lady Hale, [79]) and “inconsistent” (Lord Hughes, [126]). The minority, however, disagree; Lord Reed describes Strasbourg’s position as being backed up by “numerous Chamber judgments over the course of decades” ([175]). Indeed, it is difficult to portray a 136-paragraph Grand Chamber case, much less one which specifically addresses the position in the United Kingdom, as anything other than a definitive pronouncement.

III. Horncastle doctrine

A third option is to invoke the doctrine espoused in the Horncastle case: that is, decisions of the European Court can be departed from on those occasions where it misunderstood, misapplied or outright failed to consider some fundamental facet of UK law. In addition to Horncastle itself, the Supreme Court has drawn attention to such apparent misunderstandings in the case of Poshteh (see especially [36]), as did the Court of Appeal McLoughlin [2014] EWCA Crim 188; [2014] 1 WLR 3964. Elements of this route are also apparent in the case at hand. Lord Mance hints at the idea that Strasbourg has misunderstood the true domestic situation, suggesting that Strasbourg focused too heavily on the language of the statute rather than the reality of the law in practice ([58]). Yet, this too is questionable; as the minority suggest, it is doubtful that the high bar of the Horncastle doctrine – that an “egregious oversight or misunderstanding” is needed (per Lord Mance in Chester v Secretary of State for Justice [2013] UKSC 63; [2014] 1 AC 271) – has been surpassed here.

Options 4-6

In Pinnock [2011] UKSC 6; [2011] 2 All ER 586, Lord Neuberger suggested that, when the Strasbourg Court takes a position that is out of step with that of the domestic courts, absent the above three exit routes, “it would be wrong for this court not to follow that line” ([48]). Yet, the Court in Hallam relies on at least three more justifications for such a departure.

IV. Irrelevant to outcome

The first is put forward by Lady Hale. Although she agrees with the minority in that the European position is clear, constant and authoritative, and that it differs from the domestic position, she nonetheless refuses to modify that domestic position because she feels that the same eventual outcome – no success for the applicant – would result. Thus, it does not matter to her whether Article 6 is engaged or not, as it would not be breached on the facts. Whilst certainly pragmatic, and not necessarily unprecedented (elements of this approach can be found in her judgment in Re Northern Ireland Human Rights Commission [2018] UKSC 27), it is a novel approach. It is not clear that her conclusion – that there will not be a breach of article 6 on the facts – is as obvious as she perhaps suggests (see, e.g. Lord Wilson at [92]-[93]). In any case, coming to such a conclusion on the facts does not justify a refusal to adjudicate upon the applicability of article 6 (although, regrettably, this is something the European Court itself does on occasion: see e.g. Vo v France (app. no. 53924/00), judgment of 8 July 2004 [GC]).

V. Poor reasoning

An interesting theme throughout the majority judgments is that Strasbourg’s reasoning in Allen is poor. Lord Mance criticises the European Court for being incoherent and vague ([46], [77]) as well as for failing to sufficiently engage with previous Supreme Court authorities ([38]), and even suggests its citation of authorities is flawed ([44]). Lord Hughes laments what he views as a repeated failure to espouse the underlying principles behind the case law ([109]). Lord Wilson is perhaps most critical of all, suggesting Strasbourg’s reasoning reflects “hopeless and probably irretrievable confusion” akin to “a boat which, once severed from its moorings, floats out to sea and is tossed hopelessly this way and that” ([85]). Whilst Strasbourg’s quality of reasoning has been targeted a number of previous cases (see Horncastle ([105]) and Poshteh ([35]); and the opinion of Lord Hughes in Police Commissioner v DSD [2018] UKSC 11, [114] and [125]), Hallam represents the strongest example of that ground acting as a justification in and of itself for departing from Strasbourg.

VI. Strasbourg is wrong

A final reason for departing from Strasbourg – and perhaps the most controversial one – might be that its position is simply incorrect. The charge here is not that Strasbourg’s position is inconsistent, or unclear, or poorly reasoned, but that it is simply wrong. Although substantive criticism of this kind is not uncommon in previous cases where the Supreme Court has departed from Strasbourg authority (see e.g. Horncastle, [91]; DSD, [129]), as Lord Wilson points out, the court has never previously relied on this route explicitly ([90]). Indeed, in a number of cases, judges have expressed clear reservations about the European position but went on to adopt it anyway (see e.g. Lord Mance in DSD, Lord Rodger in Cadder v HM Advocate [2010] UKSC 43; [2010] 1 WLR 2601).

Hallam, then, seems to be the first case in which at least some judges justify a departure from clear, constant Strasbourg case law on the grounds that they simply disagree strongly with it. Lord Mance, for example, confesses that for him it is “not easy to understand” why the Strasbourg Court would adopt such its position ([40]). It is decried as unfair and unjust (Lord Hughes, [126]; Lord Wilson, [86]), and it is alleged that it produces unjustifiable case outcomes ([38]). Lord Wilson, again, is the most direct, and directly calls Strasbourg’s position “wrong” ([90]). For him, this is the primary reason which justified the departure.

Conclusion

Hallam clearly moves a number of steps away from the comparatively timid position set out in Horncastle a decade ago. But unlike in that case, the judges in Hallam all seem to pull in slightly different directions, making its significance more difficult to evaluate. Additionally, whilst the conditions in Horncastle (roughly overlapping with Options 1-3 here) have never seriously been doubted, the more intriguing justifications espoused by certain members of the court were robustly criticised by the dissenting judges. Lord Reed said this:

“I find it difficult to accept that this court should deliberately adopt a construction of the Convention which it knows to be out of step with the approach of the European Court of Human Rights, established by numerous Chamber judgments over the course of decades, and confirmed at the level of the Grand Chamber, in the absence of some compelling justification for taking such an exceptional step. For my part, I can see no such justification” ([175]).

Such a pronouncement reflects the orthodox view, and a very sensible one. But that view seemingly no longer commands a majority. Hallam, at best, generates significant uncertainty regarding the relationship between domestic courts and Strasbourg. At worst, it opens the door to a potential watering down of human rights protections, at a time when scepticism over both European influence and human rights more generally appears to be becoming more prominent.

Lewis Graham, Cambridge University

(Suggested citation: L. Graham, ‘Hallam v Secretary of State: Under What Circumstances Can the Supreme Court Depart from Strasbourg Authority?’, U.K. Const. L. Blog (4th Feb. 2019) (available at https://ukconstitutionallaw.org/)

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