The long anticipated judgment in Elgizouli v Secretary of State for the Home Department was handed down by the Supreme Court on the 25^th March. The Court held that it was not the common law but rather a failure by the Home Secretary to consider his duties under the Data Protection Act 2018 (DPA) that rendered the decision of the then Home Secretary- Sajid Javid- to hand over evidence to US authorities unlawful. While others have commented on the DPA aspect of this case (see here, here, and here), this post touches on the common law strand. However, rather than interrogating the Court’s decision, here I discuss the under-examined issue of rationality, arguing that the factual matrix of the case warranted a greater examination of the Home Secretary’s decision.

Background and Context

In Elgizouli, the appellant’s son- Shafee El Sheikh- was alleged to have been one of a group of terrorists (the so-called IS Beatles) operating in Syria, involved in the murder of US and British citizens. In June 2015, the US made a mutual legal assistance (‘MLA’) request to the UK in relation to an investigation into the activities of that group. In accordance with long-established practice, the Home Secretary requested an assurance that the information would not be used directly or indirectly in a prosecution that could lead to the imposition of the death penalty. The US refused to provide a full death penalty assurance. Nevertheless, in June 2018, the then Home Secretary agreed to provide the information to the US without requiring any assurance whatever. The appellant challenged the Home Secretary’s decision by way of judicial review. Her claim was dismissed by the Divisional Court, which certified two questions of law of public importance:

1. whether it is unlawful for the Secretary of State to exercise his power to provide MLA so as to supply evidence to a foreign state that will facilitate the imposition of the death penalty in that state on the individual in respect of whom the evidence is sought; and
2. whether (and if so in what circumstances) it is lawful under Part 3 of the Data Protection Act 2018, as interpreted in the light of relevant principles of EU data protection law, for law enforcement authorities in the UK to transfer personal data to law enforcement authorities abroad for use in capital criminal proceedings.

Ultimately, the Supreme Court held that it was not the common law but rather a failure by the Home Secretary to consider his duties under the Data Protection Act 2018 that rendered the decision in question unlawful (Lord Kerr, in the minority, concluded that the decision was unlawful both at common law and under the 2018 Act). The common law aspect of this case is likely to raise much discussion around the common law constraints of prerogative power; the contours of the UK’s position on the death penalty; and the nuances of that position. The case also raises questions pertaining to the degree of causal connection to the death penalty that would suffice in questions around the lawfulness of executive actions.

The remainder of this post, by contrast, considers the issue of rationality. Although the claimant did not argue that the decision of the Home Secretary was irrational (and thus the court did not consider it), Lord Reed identified that this this might have been open to challenge [175-180]. This post argues that a scrutiny of the merits of the decision would have been useful, particularly in light of the circumstances that preceded the home secretary’s decision.

Judicially reviewing the merits  

Under orthodox principles of administrative law, courts engaged in judicial review are examining the lawfulness of public body activities. They are primarily concerned with whether public bodies have acted within the parameters of their powers and often demonstrate great reluctance to interfere with administrative decisions. A significant issue in Elgizouli was whether a common law principle had formed whereby it was deemed unlawful to facilitate the trial of any individual in a foreign country where, to do so, would put that person in peril of being executed [142]. Per Lord Carnwath, however, it was held that there is

as yet no established principle (under the common law, the European Convention or any other recognised system of law), which prohibits the sharing of information relevant to a criminal prosecution in a non-abolitionist country, merely because it carries a risk of leading to the death penalty in that country. [191]

Lord Hodge agreed that the common law does not recognise a right to life which can be used to prevent the Home Secretary from providing information to a foreign country in the context either of MLA or the sharing of intelligence [231-234]. In the absence of such a principle, a further issue was whether “the time has arrived where a common law principle should be recognised” [142]. To this Lord Carnwath asserted that the power of the courts to develop the common law must be exercised with caution [193]. Lord Reed concurred that the common law is subject to judicial development, but such development must build incrementally on existing principles. This is necessary, he continued, to: (i) preserve legal certainty; and (ii) ensure compatibility with the pre-eminent constitutional role of Parliament in making new law [170]. In interrogating whether a common law basis existed and, in its absence, whether one should be recognised, the central issue was whether the Home Secretary had acted unlawfully [2].

When considering the legality of a decision, it is possible for the courts, in certain circumstances, to review the merits or rationale of an executive decision. In the Council of Civil Service Unions v Minister for the Civil Service, Lord Diplock asserted that by  “irrationality”, he was referring to “Wednesbury unreasonableness” i.e. a decision which is “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”. He was confident that “whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system”. It is likely that very few decisions would have reached this high threshold (see Daly [32]). The boundaries of “irrationality” have, however, been undoubtedly relaxed during the past 30 years and a far more nuanced approach has emerged, largely as a result of judicial activity in developing the common law. These developments help to demonstrate the practice, particularly where fundamental human rights are at stake, of scrutiny of the merits of an executive decision.

For instance, in R v Secretary of State for the Home Department, Ex p Bugdaycay, which concerned the approach which should be adopted to the consideration of applications for asylum, it was claimed that the asylum seeker’s life would be at risk if his application were refused. Lord Bridge of Harwich referred to the limitations on judicial review of the exercise of discretion, and continued at p 531:

the court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual’s right to life and when an administrative decision under challenge is said to be one which may put the applicant’s life at risk, the basis of the decision must surely call for the most anxious scrutiny.

In R v Home Secretary ex p Brind, Lord Bridge spoke of the need, where “fundamental human rights” are at stake, to “start from the premise that any restriction requires to be justified”, and that “nothing less than an important competing public interest will be sufficient to justify it” [page 2]. See also R v Ministry of Defence, ex parte Smith; R v Department of Education ex p Begbie [1130]; R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [para 66];  Pham v Secretary of State for the Home Department [105-106 and 114].

The ambiguous rationale behind the decision to disclose absent assurances

Pursuant to this heightened scrutiny under the grounds of rationality, where the right to life is at stake, even decisions taken under prerogative powers may be subject to more anxious scrutiny than they otherwise would be. In the Elgizouli case, scrutinising the Home Secretary’s reasoning could have enabled a more thorough examination of the merits of the decision to hand over evidence to the UK without any assurances that it would not be used in a prosecution that could result in the death penalty.

For instance, part of the Home Secretary’s reasoning for the handing over of evidence to the US, it was noted, was to ensure that justice was done [5]. This was notwithstanding the fact that the CPS had determined that there was insufficient evidence to prosecute in the UK. An examination of the merits of this decision might have scrutinised why it was determined that a conviction could be acquired in the US but not the UK. This is all the more perplexing given the assertion that any prosecution of Mr El Sheikh in the US depended critically on the evidence which has been obtained by the British authorities [33].

It is possible that the Court could also have interrogated the broader chain of events that led to the Home Secretary’s decision to break with the long-established policy of refusing MLAs without assurances. As part of his oral submissions, Edward Fitzgerald QC, on behalf of the applicant, went to great lengths to detail growing pressure from the US to hand over the evidence in question. Indeed, two Home Secretaries, Theresa May and Amber Rudd, both opposed the MLA on the grounds that an assurance had not been obtained. The new US administration, however, mounted significant opposition to these requests, with the then Home Secretary finally succumbing to these demands. In its judgment, the Court highlighted statements from a UK Government witness that US counterparts had described the UK’s position on the death penalty as an “irritant” and noted that:

This statement is both enlightening and concerning. It indicates how the UK authorities were coming under (and might become susceptible to) political pressure from the US… The statement also raises questions as to whether pragmatic considerations, at the expense of a principled approach, might begin to influence the UK’s reaction to the demand that it should cease its “lobbying” in relation to the death penalty assurances. [38]

Thus, was the Home Secretary’s decision based on the decision of the CPS not to prosecute (information, it might also be noted, that was available to both Theresa May and Amber Rudd); this increased pressure; or a combination of factors? Given that the right to life was at stake, the broader context of the decision might have been examined at greater length. As noted by Lord Reed: “It is necessary to bear in mind that the context of a decision, and in particular, its potential implications for the life of the person concerned, may affect the application of the familiar grounds of judicial review of administrative action” [174].

There are equally questions around why, at the very least, a partial assurance was not pursued. There were a number of options available to the Home Secretary. First, to seek a full death penalty assurance; secondly, to seek a partial death penalty assurance; and thirdly to seek no assurance. Why then, in light of submissions from, amongst others, the Office for Security and Counter Terrorism in the Home Office and the UK Central Authority (UKCA) that assurances should be sought, did the Home Secretary opt to ignore this advice? Judicially reviewing the merits of the decision could have allowed the Court to delve deeper into the rationale behind it.

There were, furthermore, ambiguities regarding why the UK opted to facilitate a trial that could lead to the death penalty instead of sending Mr El Sheikh to Guantanemo. To be sure, neither are ideal scenarios. But as Lord Reed noted: “To view the risk of Mr El Sheikh’s execution as preferable to the risk of his detention at Guantanamo Bay is understandably described by Lord Kerr as “perplexing” [187]. Part of the reasoning could have been that the Home Secretary was conscious that a number of families of those killed by terrorist acts in Syria opposed the transfer of those suspected of involvement in those killings to Guantanamo Bay. Quite rightly, these families felt that this would end any prospect of securing justice for the murder of their loved ones [35]. However, this does not necessarily support the decision of the Home Secretary. Indeed, it was also identified that some of the families did not wish to have the death penalty imposed upon Mr El Sheikh [30]. While the Home Secretary supported his decision to hand over evidence by referring to the wishes of some families to avoid Guantanamo, the views of other family members would have pointed towards requiring assurances that the evidence would not be used in ways that could support a death penalty sentence. Thus, is it the case that the Home Secretary strategically relied on the wishes of families that supported his decision while disregarding opposing preferences? If so, why?

Of course, none of this is to say that the Court would have found the decision to be irrational. Indeed, in his submissions on behalf of the respondent, Sir James Eadie emphasised that the decision taken was subjected to the most anxious scrutiny by the Home Secretary. The considerations taken into account included those relating to international relations, cooperation in the context of international criminal justice and diplomatic matters. These are areas where the courts recognise the institutional competence and democratic legitimacy of the executive. Moreover, it is both difficult and dangerous to second guess the broader facts and circumstances that precipitated this decision. But herein lies the point. Reviewing the merits of the decision could have invited a more thorough examination of the logic and basis of the Home Secretary’s decision. Whether such review would have supported or undermined that decision is, in its absence, wholly unknown. Arguably, at least from a human rights perspective, the uncertainties that emerge from this case warranted such consideration.

A Missed Opportunity?

Precisely why a rationality challenge was not mounted is unclear. However, one plausible reason is that the wider legal strategy was to challenge the practice of MLAs without formal assurances rather than the specific decision of the Home Secretary. Driven by a belief that a common law principle had emerged, an assumption might have been made that the case would succeed on common law grounds.  Nevertheless, the failure to mount a rationality challenge was, in my view, a missed opportunity. Owing to the broader circumstances around the Home Secretary’s decision to break with a long-grounded policy of refusing MLA’s without prior assurances, the Elgizouli case appears a prime example of the importance of merit-based judicial review. If nothing else, a rationality challenge could have allowed a deeper examination of the uncertainties and ambiguities that were raised by the Supreme Court Justices throughout the hearing. Beyond this immediate case, these uncertainties illustrate the importance of interrogating the basis and rationale of executive decisions, particularly when fundamental human rights are at stake. Paradoxically, in omitting a merits-based review, the case provides a useful example of the salience of the development of common law in this manner.

Dr Sean Molloy, Research Associate, Newcastle University Law School

(Suggested citation: S. Molloy, ‘Elgizouli v Secretary of State for the Home Department: The Missing Rationality Challenge’, U.K. Const. L. Blog (6th May 2020) (available at https://ukconstitutionallaw.org/))