The Public Law Current Survey was originally published in Public Law and is reprinted with the generous permission of that journal. (This survey covers the three-month period 1st August to 31st October 2014)
Administration of Justice
Legal Aid
The Commons Justice Committee held its second evidence session on 2 September on the impact of changes to civil legal aid under the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012.
Two decisions by Sir James Munby P advert to the problems and unfairness caused by withdrawal or limitation of legal aid in family law proceedings. In Q v Q [2014] EWFC 31, he held that in private law family proceedings where one party was unable to pay for representation – or perhaps to fund expert evidence reports or translation services – and where “exceptional” legal aid under s.10 of LASPO 2012 were not available, then the Court (as a public authority under s.6 of the HRA) should direct that appropriate representation be provided at the expense of the court, in cases where the judge were satisfied that the fair trial requirements of Article 6, as well as to family life in Article 8 (and Rule 1.1 of the Family Procedure Rules 2010), could not otherwise be met. The words “cause to be put” in s.31G(6) of the Matrimonial and Family Proceedings Act 1984 (set out in Schedule 10 of the Crime and Courts Act 2013, which came into effect on 22 April) could be read so as to enable the judge so to direct. In In re D [2014] EWFC 39, both parents were resisting a local authority seeking a removal order in respect of their son. The father’s modest earnings disqualified him, and therefore the mother, from receiving legal aid and they could not afford to fund private representation such that they were wholly reliant on solicitors and counsel acting pro bono. Thus the parents were facing, because of a decision taken by an agent of the state, the permanent loss of their child, and were unable to represent themselves and lacked the resources to afford to pay for it. It was unthinkable that the parents should have to face the council’s application without proper representation.
“It would be unconscionable; it would be unjust; it would involve breach of their rights under Articles 6 and 8 of the Convention; it would be a denial of justice…Thus far the State has simply washed its hands of the problem, leaving the solution to the problem which the State itself has created – for the State has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession. This is, it might be thought, both unprincipled and unconscionable. Why should the State leave it to private individuals to ensure that the State is not in breach of the State’s – the United Kingdom’s – obligations under the Convention?”
Armed forces
The Commons Public Accounts Committee report “Army 2020” (HC 104, 5 September) was critical of the Government’s plans to make cutbacks to the regular Army of 20,000 and to increase the number of Reservists without properly consulting the Army itself. While the decision to reduce the size of the Army was driven by the need to make financial savings in a time of austerity, it was remarkable that the Chief of the General Staff had not been involved in all stages of the decision-making process given the magnitude and importance of the change required, and its impact on the service which he commanded. The Commons Defence Select Committee published a further report on the military covenant in action “The Armed Forces Covenant in Action Part 5: Military Casualties, a review of progress” (HC 527, 30 October).
Constitution
Parliamentary reports
The House of Lords Constitution Committee’s inquiry into the office of Lord Chancellor continued with evidence in October from current Lord Chancellor and Secretary of State for Justice, Chris Grayling, together with former Lord Chancellors Jack Straw MP, Ken Clarke MP and Lord Falconer of Thoroton, from former Permanent Secretaries in the Lord Chancellor’s department, as well as former Attorneys General Dominic Grieve MP and Baroness Scotland of Asthal. The collated evidence can be found here
On 23 October MPs took part in a Backbench Business debate on the motion that “That this House believes that the Government should bring forward proposals to repeal the Fixed-term Parliaments Act 2011.” (Hansard, HC deb 23 October, cols 1069- 1112).
The Commons Political and Constitutional Reform Committee took evidence from two academics (Professor Ron Johnston and David Rossiter) who authored a report which reviewed the rules for redistribution of parliamentary constituencies set out in the Parliamentary Voting System and Constituencies Act 2011.
Devolution
Consultations and publications
The Scottish Government is, inter alia, currently consulting on proposals to create a new criminal offence of wilful neglect or ill-treatment in health and social care settings similar to those that presently exist in relation to mental health patients and adults with incapacity, as well as on proposals to introduce legislation that will require organisations providing health and social care to tell people if there has been an event involving them where physical or psychological harm has occurred as a result of care or treatment. It is also consulting on strengthening governance in the higher education sector in Scotland to create modern, democratic and accountable processes to inform governance arrangements in higher education institutions in Scotland but without increasing Ministerial control. It also published the responses to its consultation on the future model of community justice in Scotland (21 October), alongside a consultation report. It published (20 August) “The Digital Strategy for Justice in Scotland” setting out how digital technology will be used to transform the way in which services in the civil, criminal and administrative justice systems are delivered in Scotland. Also on 20 August came “Scotland’s Agenda for EU Reform”, the Scottish Government’s considerations on EU reform and priority areas for EU action. The paper also featured an overarching assessment of the impact on Scotland of the Balance of Competences between the EU and the Member States. In Wales, the Welsh Government is consulting on the “Devolution, Democracy and Delivery White Paper”, and the planned establishment of a non-statutory Public Services Staff Commission by April 2015. It is also consulting on Health Standards, in light of the report of the Francis Inquiry, specifically on integrating the 26 Standards for Health Services in Wales and the 12 Fundamentals of Care Standards into 7 Quality Themes and 24 Health Standards.
Legislation
The Housing (Scotland) Act 2014, which received Royal Assent on 1 August, includes provision about the abolition of the right to buy, social housing, the law affecting private housing, the regulation of letting agents and the licensing of sites for mobile homes. On 24 September, The Revenue Scotland and Tax Powers Act 2014 received Royal Assent. This establishes Revenue Scotland and Scottish tax tribunals, puts in place a general anti-avoidance rule and makes provision about the collection and management of devolved taxes. The wide-ranging Housing (Wales) Act 2014 received Royal Assent on 17 September. This regulates private rented housing; reforms the law relating to homelessness; provides for assessment of the accommodation needs of Gypsies and Travellers and requires local authorities to meet those needs; makes provision about the standards of housing provided by local authorities; abolishes housing revenue account subsidy; allows fully mutual housing associations to grant assured tenancies; and makes provision about council tax payable for empty dwellings. The Agricultural Sector (Wales) Act 2014 received Royal Assent on 30 July.
Parliamentary activity
On 28 October, the House of Commons Treasury Committee held the first session in its inquiry into the proposals for further fiscal and economic devolution in Scotland. The Welsh Affairs Committee questioned the Secretary of State for Wales in relation to his responsibilities, including questions on the impact of the Scottish referendum on devolution in Wales, on the recent Wales Office infrastructure report, on shale gas, and on relations with the Welsh Government (22 October). Its 2nd report “International representation and promotion of Wales by UK bodies” (HC 337) was published on 22 October. The Prime Minister was questioned about UK governance and the implications of the Scottish referendum result for the various parts of the UK by the Commons Liaison Committee on 14 October.
Scottish Referendum
The referendum was held on 18 September, where the question on the ballot paper was ‘Should Scotland be an independent country?’ The result was in favour of Scotland remaining with the UK: No 2,001,926 (55.5%) and Yes 1,617,989 (44.5%), with turnout at 84.6%. In the run-up to the vote, all the main three Westminster parties had pledged further powers for the Scottish Parliament if there was a no vote. The day after the Referendum the Smith Commission was set up with a remit to take forward those commitments. Its terms of reference are: to convene cross-party talks and facilitate an inclusive engagement process across Scotland to produce, by 30 November, Heads of Agreement with recommendations for further devolution of powers to the Scottish Parliament. The recommendations will deliver more financial, welfare and taxation powers, strengthening the Scottish Parliament within the United Kingdom. The UK Government has committed to responding to that Heads of Agreement by publishing draft legislative proposals, accompanied by an explanatory text, by 25 January 2015. These will form the basis of a Scotland Bill to be brought forward by the next UK Government in the new Parliament after May 2015. As part of the initial process, and in order to inform the Commission’s deliberations, both governments published their own proposals. The Scottish Government published its “Proposals for more powers for the Scottish Parliament” on 10 October and at Westminster, the UK Government published its Command Paper “The Parties’ Published Proposals for Further Devolution of Powers to the Scottish Parliament” (Cm 8946) on 13 October. The five main parties in the Scottish Parliament have, at the invitation of Lord Smith, chairman of the Commission, provided their views on what further powers should be devolved to Holyrood, again to inform the basis of the political negotiations along with the views received from about 400 civil society organisations and from the public. Those views can all be found here https://www.smith-commission.scot/resources/.
The day after the referendum, First Minister Alex Salmond announced his intention not to stand for re-election as leader of the SNP at its annual conference in November. As his deputy, Nicola Sturgeon, was the only candidate to come forward to stand, he will be replaced as leader and as First Minister by her.
European Union
Article 267 TFEU
Under Austrian Law, ordinary courts hearing an appeal or adjudicating at final instance are under a duty, if they consider a national statute to be contrary to the Charter of Fundamental Rights and Freedoms, to apply, in the course of the proceedings, to the constitutional court for that statute to be generally struck down. They are not able simply to refrain from applying that statute in the case before them. EU law and, in particular, Article 267 TFEU must be interpreted as precluding rules of national law, such as those at issue in the instant Austrian proceedings to the extent that the priority nature of that procedure prevented all other national courts or tribunals from exercising their right or fulfilling their obligation to refer questions to the Court of Justice for a preliminary ruling. So held the ECJ in the course of a request for a preliminary ruling on the scope of Article 267 TFEU. On the other hand, EU law and, in particular, Article 267 TFEU had to be interpreted as not precluding such national legislation to the extent that those ordinary courts remained free to make a reference to the Court at whatever stage of the proceedings they considered appropriate and in respect of any question which they considered necessary; to adopt any measure necessary to ensure interim judicial protection of rights conferred under the EU legal order; and to disapply, at the end of such an interlocutory procedure, the national legislative provision at issue if they considered it to be contrary to EU law. It was for the referring court to ascertain whether the national legislation at issue before it could be construed in such a way as to meet those requirements of EU law. The reference was made as part of preliminary issue on the interpretation of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1)) arising in a private law action for damages brought against A by B before the Austrian courts. The Austrian Oberster Gerichtshof had referred the matter because, while an established line of authority required it, in recognition of the primacy of EU law, to refrain on a case-by-case basis from applying statutory provisions that were contrary to EU law, the Verfassungsgerichtshof had recently ruled that its jurisdiction to review the constitutionality of national statutes covered the provisions of the Charter: since the rights guaranteed by the ECHR could be relied upon before the Verfassungsgerichtshof as constitutional rights, by dint of the principle of equivalence, as established by the case-law of the Court of Justice, the general review of legislation also had to cover the rights guaranteed by the Charter. In the view of the Oberster Gerichtshof, the effect of that judgment was that Austrian courts might not, of their own motion, refrain from applying a statute that was contrary to the Charter; rather, ‘without prejudice to the possibility of making a reference to the Court of Justice for a preliminary ruling’, they were required to lodge an application with the Verfassungsgerichtshof for that law to be struck down. Thus the preliminary reference was made in order to determine whether or not that Verfassungsgerichtshof ruling was compatible with the basic principle of EU law – expressed in e.g. Simmenthal and Factortame: that national courts that are called upon, within the exercise of jurisdiction, to apply provisions of EU law are under a duty to give full effect to those provisions, if necessary refusing of their own motion to apply any conflicting provision of national legislation (A v B and Others Case C‑112/13, 11 September).
EU referendum
In a radio interview (29 October) Nicola Sturgeon, incoming First Minister in the Scottish Government suggested that any proposed referendum on UK membership – the in/out referendum pledged by the Conservatives for 2017 – would need the support of all four nations separately expressed.
Institutions
The new Commission under Jean-Claude Juncker commenced its five-year term on 1 November. Appointment hearings with the Commissioners-designate were held throughout October – and details can be found here http://www.elections2014.eu/en/new-commission/hearings
Inter-institutional dialogue
On 6 October, a delegation from the European Court of Justice made an official visit to London, at the invitation of the Judiciary of England & Wales. The delegation held working sessions with members of the senior courts in the UK concerning five different subjects: the interpretation and limits of EU law; intellectual property; asylum and citizenship; cases involving issues of national security; and the ECJ’s case law on the Charter of Fundamental Rights. The delegation also held a working session with the Cambridge Law Faculty, in which the main topic addressed was the relation between UK law and EU law.
Medical costs
Authorisation of the reimbursement of medical expenses incurred in another Member State cannot be refused where, because of a lack of medication and basic medical supplies and infrastructure, the hospital treatment concerned could not be provided in good time in the insured person’s Member State of residence. The question whether that was impossible had to be determined by reference to all the hospital establishments in that Member State that were capable of providing the treatment in question and by reference to the period within which the treatment could be received in good time. So held the ECJ in application by P, a Romanian national, for reimbursement from her health insurer (with health insurance compulsory in Romania) of the costs she incurred in Germany for treatment of a serious cardiovascular disease. EU law imposed two conditions which, if both were satisfied, rendered mandatory the grant by the competent institution of prior authorisation for the reimbursement of medical expenses: (i) the treatment in question must be among the benefits provided for by the legislation on whose territory the insured person resides and (ii) it must be impossible for the treatment that the insured person plans to receive (in another Member State) to be obtained within the time normally necessary for receiving that treatment in the Member State of residence, account being taken of his current state of health and the probable course of his disease. Here, authorisation could not be refused if the same or equally effective treatment could not be received in good time in the Member State of residence of the person concerned. In order to determine whether that is the case, the competent institution must have regard to all the circumstances of each specific case, including lack of medicine, basic medical supplies and infrastructure all or any of which might make it impossible for the same or equally effective treatment to be provided in good time in the Member State of residence. The question of impossibility had to be determined, first, by reference to all the hospital establishments of the Member State of residence that were capable of providing the treatment in question and, second, by reference to the period within which the treatment could be received in good time (Petru v Casa Județeană de Asigurări de Sănătate Sibiu, Case 268/13, 9 October).
Ne bis in idem
Article 54 of the Convention Implementing the Schengen Agreement (CISA) 1990 asserts that ‘A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts…”. This must be interpreted as meaning that an order making a finding that there was no ground to refer a case to a trial court thus precluding, in the Contracting State in which that finding was made, the bringing of new criminal proceedings in respect of the same acts against the person to whom that finding applies, unless new facts and/or evidence against that person come to light, must be considered to be a final judgment, for the purposes of Article 54. Such and order or finding then precluded new proceedings against the same person in respect of the same acts in another Contracting State. So held the ECJ in a preliminary ruling, requested in the course of criminal proceedings brought in Italy against M (an Italian citizen), on the basis of the same acts as those which had been the subject of a parallel investigation in Belgium – but which had resulted in a finding of “non-lieu”. M was accused of having committed, while resident in Belgium between May 2001 and February 2004, acts of sexual violence against a child. An order of non-lieu follows if there is insufficient evidence to ground a referral to trial and only permits proceedings to be reopened in the light of new evidence or new facts and then only at the request of the public prosecutor (M, Case 398-12, 5 June).
Parliamentary
The Commons Home Affairs Committee took evidence on 14 October from Alison Saunders, the Director of Public Prosecutions on the European Arrest Warrant (EAW). There has been considerable discussion on the floor of the House on the EAW with the Prime Minister promising MPs a vote on its future in or around 20 November. The UK had until 1 December to decide whether to exercise the right to opt back-in to, the UK having opted out of more than 100 EU policies relating to justice and home affairs last year, exercising its right under Protocol 36 of the 2007 Lisbon treaty.
The Commons European Scrutiny Committee (8th Report “Documents considered by the Committee on 16 July 2014” (HC 219-viii, 1 August)) was very critical of the government’s lack of engagement with it and with parliament over new Strategic Guidelines in the area of justice and home affairs agreed by the European Council in June. Commission Communications had been published in April, the only publicly accessible documents to be published in advance of the June meeting of the European Council. The Committee had previously recommended the Communications for debate on the floor of the House, so that all MPs would have had the opportunity to express their views on the content of the strategic guidelines and the future. The Committee also noted the strategic guidelines would have an important impact on its own work and of the Home Affairs and Justice Select Committees. Not only had there been no debate but junior ministers at both the Home Office and the Ministry of Justice had written recently to inform the committee of the content of the strategic guidelines agreed in June, expressing the hope that, having shared a copy of a limité letter sent ahead of the June meeting, the committee would be satisfied that the Government had done “everything in its power to share the relevant information” with it. It is worth noting the Committee’s response in full:
“We are far from being satisfied. In January 2011, the Minister for Europe told the House that the Government was “committed to strengthening its engagement with Parliament on all European business as part of our wider work to reduce the democratic deficit over EU matters” and to make the Government “more accountable for the decisions it makes in the EU”. To be both meaningful and effective, this accountability to Parliament has to operate before decisions are taken which determine the strategic direction of a policy area which, as in this case, has a direct bearing on the rights and liberties of individual citizens. We remind Ministers that we are a European scrutiny committee, not a European information committee. Our task, as stated in the Standing Orders of the House, is to alert Members to documents which have some legal or political significance and, where appropriate, to recommend a debate so that the House has an opportunity to inform and influence Government policy. We are struck that, once again, the response of Ministers at the Home Office and Ministry of Justice makes no reference to our outstanding debate recommendation and offers no explanation for the Government’s failure to schedule a debate ahead of the June European Council. Instead, we are expected to be satisfied with selective extracts from a set of strategic guidelines that have already been agreed to by the Prime Minister without an open and transparent debate in this House. We do not accept that this level of engagement allows Parliament to scrutinise the Government effectively or to hold it to account for the decisions it takes within the EU. We ask the Ministers to schedule a debate forthwith and to write to us with a detailed explanation of the reasons for the three-month delay, failing which we will expect them to attend and give their reasons in person. We are drawing our observations to the attention of the Home Affairs and Justice Select Committees. Meanwhile, the Communications remain under scrutiny.”
The European Scrutiny Committee commenced its Inquiry into the UK’s Commissioner-elect by taking evidence (HC 752, 29 October) from Lord Hill CBE, the new Commissioner for Financial Stability, Financial Services and Capital Markets union.
The Lords EU Select Committee published its 3rd report “The United Kingdom opt-in to the draft CEPOL Regulation” (HL 52, 21 October). Its “Progress of Scrutiny” report (3rd ed) was published on 17 October.
Government and Civil Service
Orders in Council and the courts
UK courts do have jurisdiction judicially to review an Order in Council, made on the advice of the UK Government acting in whole or in part in the interests of the United Kingdom, that brought into effect, by conferring Royal Assent upon, an Act of the Sark legislature. However, although the Administrative Court did therefore have jurisdiction to entertain the respondents’ claim, it should not have exercised it in this case. So held the Supreme Court in a challenge brought by B seeking to have struck down The Reform (Sark) (Amendment) (No 2) Law, on grounds that it violated Article 6 of the ECHR. While the Seneschal – the chief judge – by legislation passed in 2008 had been debarred from sitting as a member of the Chief Pleas (legislature), the 2010 Act provided for the Seneschal’s remuneration to come from public funds but with the amount determined by the Chief Pleas. It was these provisions that were said by B to be incompatible with the impartiality and independence of the judiciary, required by article 6 ECHR. The Channel Islands are not part of the United Kingdom but as Crown Dependencies enjoy a unique relationship with the United Kingdom through the Crown, in the person of the Sovereign. The UK government is responsible for their international relations and for their defence. The UK Parliament has power to legislate for the Islands but Acts of Parliament do not extend to the Islands automatically. Usually, an Act gives power to extend the application of the Act to the Islands by Order in Council, which will be preceded by consultation. For the most part the Islands legislate for themselves. A challenge to Sark legislation on the ground of incompatibility with the ECHR should be brought in the Island courts under the Human Rights (Bailiwick of Guernsey) Law 2000, rather than under the HRA which does not apply to Channel Islands legislation. From there, an appeal would ultimately lie to the Judicial Committee of the Privy Council. The courts of the Bailiwick were better placed to assess whether legislation struck a fair balance between the protection of individual rights and the general interests of the community and the appropriate forum for this claim. The courts of England and Wales should not have entertained the Article 6 challenge in Barclay (No 1) [2009] UKSC 9 – the response to which was the 2008 Act – and would not do so in this case. The instant challenge before the UK courts though was to the process by which Sark legislation came into effect. The Secretary of State’s case was that the courts of England and Wales had no jurisdiction judicially to review the process whereby the Privy Council gave Royal Assent to Island legislation. The fact that, unlike former colonies without legislatures in respect of which Orders in Council were made, Sark has a functioning legislature and its own system of laws and courts, was a very powerful reason why the courts of England and Wales should not interfere with the business of the people of Sark. It did not follow, however, that there was no jurisdiction to entertain a challenge in a more appropriate case. It was the clear responsibility of the UK government in international law to ensure that the Islands complied with such international obligations as applied to them. It was to be expected that any dispute would be decided by negotiation with the Island authorities but, if that proved impossible, a challenge could be made in the courts of England and Wales. The reality was that the Lord Chancellor advises Her Majesty both in right of the Bailiwick of Guernsey and of Sark and in right of the UK, because of the UK’s continuing responsibility for the international relations of the Bailiwick. They are legally accountable to the UK Parliament, and to the UK courts in an appropriate case, which this was not (R (Barclay) v Ministry of Justice [2014] UKSC 54).
Osmotherley rules
The Government’s Civil Service Reform Plan is committed to reviewing the Osmotherly Rules, the guidance for ministers and civil servants on working with Select Committees but interim, and following consultation with the Commons Liaison Committee, the Minister for the Cabinet Office, Francis Maude published updated guidance on 17 October. This restated the primacy of the principle of ministerial accountability but confirmed that the Senior Responsible Owners (SROs) of the government’s major projects (as defined by the Major Project Authority’s Portfolio) would now be directly accountable to Parliament for the implementation of their projects. The Government also confirmed that former Accounting Officers could be called to give evidence about their previous responsibilities within a reasonable time period.
Parliamentary reports
The Commons Public Accounts Committee published “The centre of government” (HC 107, 22 October) its report into the role of the centre and the responsibilities for implementing cross-government initiatives, such as centralised procurement. The report noted that confusion existed at the heart of government about what exactly the role of ‘the centre’ – Number 10, the Cabinet Office and HM Treasury – should be. That lack of clarity about the precise role and responsibilities of the centre jeopardised government’s ability to deliver value for taxpayers’ money in key public spending areas. There appeared to be a conflict between ministers at the centre, who wanted it to play a more effective, smart and challenging role, and senior civil servants who were resistant to change and remain wedded to departmental autonomy. Too often the centre failed to intervene effectively and quickly enough to prevent major programmes from failing and protect the interests of the taxpayer.
That Committee’s report “Major Projects Authority” (HC 147 19 August) noted the progress the MPA has made so far, but without stronger powers it was unlikely to achieve its aim of a systemic improvement in project delivery across government.
In its 9th report “Whistleblowing” (HC 593, 1 August), the Committee noted that whistleblowing was a crucial source of intelligence to help government identify wrongdoing and risks to public service delivery, such that a positive approach to whistleblowing should exist wherever taxpayers’ money was spent, by private and voluntary sector providers as well as public bodies.
Following the backlog of cases and delays in the summer of 2014, the Home Affairs Select Committee called for the removal of agency status from Her Majesty’s Passport Office (HMPO) so as to bring it back under the direct control of Ministers. The HMPO should still retain a separate Director General as the Home Secretary had done previously with the former UK Border Agency (UKBA). This proposal is contained in its report “Her Majesty’s Passport Office: delays in processing applications” (3 September).
Housing
While s.193 of the Housing Act 1996 imposes a personal duty on a local housing authority to those homeless persons who are assessed as being a priority need and who are not homeless intentionally, it did not follow that such an authority was obliged to consider only those factors relating to the particular applicant when deciding whether it was reasonably practicable to make an offer of accommodation within its own district, under s.208. That would put local housing authorities in an impossible position and would impose on them obligations to which Parliament cannot have intended to subject them. It would require them to make available any suitable accommodation which happened to be available within their own districts at the time they were called upon to make a decision on an application, without regard to how the needs of the applicant’s household compared to those of others to whom they already owed a similar duty, or to the circumstances of those with a greater need to remain within their districts from whom they could expect to receive similar applications in the near future. It would require the housing department to scour not only the authority’s own district but also the districts of all neighbouring authorities in an ever widening circle in an attempt to find accommodation from any source that might be suitable to the applicant’s needs. That would impose an unreasonable and disproportionate burden on councils, which did not have the human or financial resources to undertake a search of that kind for every applicant. What is reasonably practicable in any given case is a matter for the housing authority itself to decide, provided its decision is not Wednesbury unreasonable. When considering whether it is reasonably practicable to provide an applicant with suitable accommodation in its own district, a housing authority is entitled to have regard to all the factors that have a bearing on its ability to provide accommodation to that person, including the demands made upon it and the pressures on its resources, whether of a financial or administrative nature. So held the Court of Appeal when dismissing N’s appeal from a County Court decision, the ultimate effect of which was to uphold the council’s decision that it had offered the applicant a suitable property and since she had rejected that offer the council had discharged its duty to provide her with accommodation. The council having accepted that it owed N a duty under s.193 made an out-of-area referral under s. 198 for temporary accommodation. N refused as she had lived in Westminster for over four years and had many friends who provided her with emotional and practical support, in particular with looking after her children. As a result of her rejection of the offer of what it considered to be a suitable property, the council decided that it had discharged its duty towards N and was no longer under a duty to make accommodation available to her (Nzolameso v City of Westminster [2014] EWCA Civ 1383).
Human Rights
Article 8
While it was now well-established that Article 8 required an assessment of the proportionality by an independent tribunal of any proposed eviction from public authority housing, and while on the facts here proportionality was not considered when deciding whether or not to make a possession order, the proportionality of dispossessing the tenant of the property she occupied and of evicting her from her “home” was, exceptionally, subsequently scrutinised by the domestic courts at the enforcement stage of the proceedings taken against her. While the assessment did not take place in the normal course of the enforcement proceedings (namely, when the Secretary of State applied for a writ of possession) but took place when the tenant brought judicial review proceedings against the decision of the Secretary of State to enforce the order for possession, there was no doubt that these judicial review proceedings were contentious and the applicant was legally represented throughout. It could not be said that the proceedings were not properly equipped with the procedural tools and safeguards to conduct the proportionality review at the enforcement stage. Thus the full and careful assessment of proportionality carried out by the British courts was adequate for the purposes of ensuring the protection afforded by Article 8 of the Convention. The application was therefore manifestly ill-founded (JL v UK, App 66387/10 ECtHR admissibility decision 30 September).
Article 10
The repeated arrest, prosecution, conviction and imprisonment of G, the so-called “naked rambler” for the offence of breach of the peace owing to his refusal to wear clothes in public did not constitute a violation of Article 10. While the Court accepted that G’s choice of being naked in public gave expression to his opinion as to the inoffensive nature of the human body, and that the extent to which, and the circumstances in which, public nudity was acceptable in a modern society was a matter of public interest, such that he was entitled to seek to initiate such a debate and that there would be a public interest in allowing him to do so, the issue of public nudity also raised moral and public-order considerations. The comparative data supplied by the UK Government showed that even in the small number of States surveyed, the responses of the law and of the authorities to public nudity were far from uniform. In these circumstances, the applicable margin of appreciation in reacting to instances of public nudity, as opposed to regulating mere statements or arguments on the subject, was a wide one. While he had spent almost six and a half consecutive years in prison with fewer than a dozen days at liberty throughout the entire period, with a cumulatively severe effect on him, G’s own responsibility for the convictions and the sentences imposed could not be ignored. In exercising his right to freedom of expression, he was in principle under a general duty to respect the country’s laws and to pursue his desire to bring about legislative or societal change in accordance with them. Many other avenues for the expression of his opinion on nudity or for initiating a public debate on the subject were open to him. He was also under a duty, particularly in light of the fact that he was asking for tolerance in respect of his own conduct, to demonstrate tolerance of and sensibility to the views of other members of the public. However, G appeared to reject any suggestion that acceptance of public nudity may vary depending on the nature of the location and the presence of other members of the public. Without any demonstration of sensibility to the views of others and the behaviour that they might consider offensive, G insisted upon his right to appear naked at all times and in all places, including in the courts, in the communal areas of prisons and on aeroplanes. G’s imprisonment was the consequence of his repeated violation of the criminal law in full knowledge of the consequences, through conduct which he knew full well not only went against the standards of accepted public behaviour in any modern democratic society but was also liable to be alarming and morally and otherwise offensive to other, unwarned members of the public going about their ordinary business. Having regard to the considerations set out above and to the wide margin of appreciation, the Court found that the reasons for the measures adopted by the police, the prosecuting authorities and the courts, and in particular those adopted in respect of his arrest in 2011, were “relevant and sufficient” and that the measures met a pressing social need in response to repeated anti-social conduct by the applicant. Article 10 did not go so far as to enable individuals, even those sincerely convinced of the virtue of their own beliefs, repeatedly to impose their antisocial conduct on other, unwilling members of society and then to claim a disproportionate interference with the exercise of their freedom of expression when the State, in the performance of its duty to protect the public from public nuisances, enforced the law in respect of such deliberately repetitive antisocial conduct. As to the claim under Article 8, this could not be taken to protect every conceivable personal choice in the public domain: there must presumably be a de minimis level of seriousness as to the choice of desired appearance in question. Whether the requisite level of seriousness had been reached in relation to G’s choice to appear fully naked on all occasions in all public places without distinction may be doubted, having regard to the absence of support for such a choice in any known democratic society in the world. In any event, even if Article 8 were engaged, any interference would have been justified for essentially the same reasons as for Article 10 (Gough v UK App 49327/11 29 October).
Human Rights Act
Following on shortly from the Conservative Party conference in September, Minister for Justice and Lord Chancellor, Chris Grayling, published (3 October) an eight-page document “Protecting Human Rights in the UK: the Conservatives’ Proposals for Changing Britain’s Human Rights Laws”. The main objectives of the planned draft legislation (yet to be published, awaiting the outcome of the 2015 General Election) will be to
Repeal the Human Rights Act.
Put the text of the original Human Rights Convention into primary legislation.
Clarify the Convention rights, to reflect a proper balance between rights and responsibilities.
Break the formal link between British courts and the European Court of Human Rights.
End the ability of the European Court of Human Rights to force the UK to change the law
Prevent UK laws from being effectively re-written through “interpretation”
Limit the use of human rights laws to the most serious cases.
Limit the reach of human rights cases to the UK, so that British Armed forces overseas are not subject to persistent human rights claims that undermine their ability to do their job and keep us safe.
The planned changes were fairly widely condemned, on a variety of grounds, and not simply by Tory opponents. Former Attorney-General Dominic Grieve, dismissed in the summer reshuffle in 2014, said (in an interview in Prospect magazine, 10 October) that the proposals represented “a failure of ambition by the Conservative Party on the global promotion of human rights, and is contrary to the line we have previously maintained in government. It is this, along with the lack of reasoned argument in the paper, and occasional errors of fact, used to justify its conclusions which make it such a depressing read.” Grieve had earlier described the plans (in a radio interview) as containing a “number of howlers” and being unworkable. Both other main parties swiftly pledged support for the HRA.
Rendition
Poland was in breach of Article 3 – in both its procedural and substantive aspects – alongside being breach of Article 5 and 8 (and Article 6(1) and 13) in facilitating rendition, secret detention and interrogation operations carried out by the CIA on its soil as part of the US HVD (High Value Detainees) programme. So held the Court in an application brought by AZ, who in March 2002 was seized in Pakistan by US and Pakistani agents. At the time of his capture the applicant was considered one of the key Al’Qaeda members and described by the American authorities as the “third or fourth man” in Al’Qaeda, who had had a role in its every major terrorist operation, including the role of a planner of the attacks on 11 September 2001. It was also alleged that he had been Osama bin Laden’s senior lieutenant. He was taken into the custody of the CIA and transferred to a secret CIA detention facility in Thailand and subsequently – for more than four years – he was held in incommunicado detention in secret detention facilities, so-called “black sites” run by the CIA around the world. One of these was Stare Kiejkuty in Poland where AZ spent nine months, having been flown in in December 2002. The Court found that Poland knew of the nature and purposes of the CIA’s activities on its territory at the material time and cooperated in the preparation and execution of the CIA rendition, secret detention and interrogation operations on its territory. Given that knowledge and the emerging widespread public information about ill-treatment and abuse of detained terrorist suspects in the custody of the US authorities, it ought to have known that, by enabling the CIA to detain such persons on its territory, it exposed them to a serious risk of treatment contrary to the Convention occurring on Polish territory. While it was likely true that the interrogations and, therefore, the torture inflicted on AZ in Poland were the exclusive responsibility of the CIA and that it was unlikely that the Polish officials witnessed or knew exactly what happened inside the facility, under Article 1, taken together with Article 3, Poland was required to take measures designed to ensure that individuals within its jurisdiction were not subjected to torture or inhuman or degrading treatment or punishment, including ill-treatment administered by private individuals. Notwithstanding that, Poland, for all practical purposes, facilitated the whole process, created the conditions for it to happen and made no attempt to prevent it from occurring. Accordingly, the Polish State, on account of its “acquiescence and connivance” in the HVD Programme must be regarded as responsible for the violation of AZ’s rights under Article 3 of the Convention committed on its territory. Furthermore, Poland was aware that the transfer of AZ to and from its territory was effected by means of “extraordinary rendition”, that is, “an extra-judicial transfer of persons from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system, where there was a real risk of torture or cruel, inhuman or degrading treatment”. In these circumstances, the possibility of a breach of Article 3 was particularly strong and should have been considered intrinsic in the transfer. Consequently, by enabling the CIA to transfer the applicant to its other secret detention facilities, the Polish authorities exposed him to a foreseeable serious risk of further ill-treatment and conditions of detention in breach of Article 3 (Husayn (Abu Zubaydah) v Poland App 7511/13, ECtHR judgment 24 July).
The Court of Appeal has overturned the High Court decision in Belhaj v Straw (reported at [2014] PL 323) in which claims for damages against inter alia the then Foreign Secretary Jack Straw arising out of the Government’s alleged participation in the unlawful rendition of a Libyan man and his Moroccan wife were struck out. The High Court had held that while the claims were not barred by a plea of state immunity, they were under the doctrine of act of state. The Court of Appeal upheld the applicant’s appeal on that latter point. It concluded the claim was not barred by the act of state doctrine because it fell within a limitation on grounds of public policy in cases of violations of international law and fundamental human rights. In coming to this conclusion the Court was influenced, in particular, by the facts that (1) the allegations in the case – while they were only that – were of particularly grave violations of international law and human rights in the form of torture and unlawful rendition. (2) The respondents were either current or former officers or officials of state in the United Kingdom or government departments or agencies. Their conduct, considered in isolation, would not normally be exempt from investigation by the courts. On the contrary there was a compelling public interest in the investigation by the English courts of these allegations. (3) This was not a case in which there was a lack of judicial or manageable standards. On the contrary, the applicable principles of international law and domestic law were clearly established. (4) Unless the English courts were able to exercise jurisdiction, these very grave allegations would go uninvestigated and the appellants would have been left without any legal recourse or remedy. That would have had ramifications for the applicants’ right of access to the court under Article 6 of the ECHR. (5) Notwithstanding evidence from the Foreign and Commonwealth Office that there was a risk that damage would be done to the foreign relations and national security interests of the United Kingdom, the Court did not consider that this could outweigh the need for domestic courts to exercise jurisdiction in such a case as this. Here, the risk of displeasing our allies or offending other states, could not justify declining jurisdiction on grounds of act of state over what was a properly justifiable claim (Belhaj v Straw and Others [2014] EWCA Civ 1394).
Territorial scope of the HRA, the interplay of IHL and of “act of state” defence
It was unlawful under the HRA for British forces, within the International Security Assistance Force (ISAF), to detain M in Afghanistan for over three months. It was clear law (a) that whenever a state which is a party to the ECHR exercised through its agents physical control over an individual abroad, and even in consequence of military action, it must do so in a way which complied with the Convention; and (b) that the territorial scope of the Human Rights Act coincided with that of the Convention. Accordingly, the HRA extended to the detention of M by UK armed forces in Afghanistan. In capturing and detaining M, the UK armed forces were acting as agents of the United Kingdom and not (or at any rate not solely) as agents of the United Nations. The UK government was therefore responsible in law for any violation by its armed forces of a right guaranteed by the Convention. So held the High Court in a claim brought by M, captured by UK armed forces, as part of the multinational ISAF presence in Afghanistan with the consent of its government, under a UN Security Council mandate. M was suspected of being a Taliban commander. ISAF operating procedures permitted detention for questioning for up to 96 hours. In 2009, the UK adopted its own national policy under which UK Ministers could authorise detention beyond 96 hours for the purpose of interrogating a detainee who could provide significant new intelligence. This UK national policy was not shared by the other UN member states participating in ISAF nor agreed with the Afghan government. M’s detention past 96 hours was authorised by UK ministers, and he was interrogated for a further 25 days. At that point the Afghan authorities indicated they would like M transferred to them but did not have the capacity to accept him for another 81 days, during which time he was held on British military bases. Since ISAF detention policy was compatible with Article 5 of the Convention and fell within the authorisation given by the UN Security Council, M’s arrest and detention for 96 hours therefore complied with Article 5. However, his subsequent detention did not. The UK government had no legal basis either under Afghan law or in international law for detaining SM after 96 hours. Article 5 was not displaced in its application to the detention of terrorist suspects in Afghanistan either by the Security Council resolution authorising UK participation in ISAF or by international humanitarian law. The UN authorisation to “take all necessary measures” did not permit detention outside the Afghan criminal justice system longer than needed to deliver him to their authorities or which violated international human rights law. Nor was it compatible with Article 5 to detain him for a further 25 days solely for the purposes of interrogation and without bringing him before a judge or giving him any opportunity to challenge the lawfulness of his detention. SM’s continued detention by the UK for another 81 days for ‘logistical’ reasons until space became available in an Afghan prison was also unlawful for similar reasons and was not authorised by the UN Security Council. In addition, this further period of detention was arbitrary because it was indefinite and not in accordance with the UK’s own policy guidelines on detention. While “act of state” provided a defence to M’s damages claim that his detention was illegal under Afghan law, it did not provide a defence to claims brought under the HRA for violations of rights contained in the ECHR (Serdar Mohammed v Ministry of Defence [2014] EWHC 1369 QB).
Territorial scope and IHL
The ECHR could apply even during active theatre and even to those held in detention facilities abroad, during war, that were not under the sole control of the UK. So held the Grand Chamber in an application arising out of the detention in custody of an Iraqi national, and out of his torture and death that occurred after his release, following interrogation by both US and UK authorities when they deemed him to be of no intelligence value. After capture by British forces in 2003, on suspicion of being a combatant or a civilian posing a threat to security, H was within the physical power and control of UK soldiers and therefore fell within United Kingdom jurisdiction. The Court rejected the Government’s argument that jurisdiction should not apply in the active hostilities phase of an international armed conflict, where the agents of the Contracting State were operating in territory of which they were not the occupying power, and where the conduct of the State should instead be subject to the requirements of international humanitarian law. In the Court’s view, such a conclusion was inconsistent with its own case-law and with the case-law of the International Court of Justice holding that international human rights law and international humanitarian law could apply concurrently. Furthermore, while H was transferred later on the same day to Camp Bucca, a detention facility in Iraq operated by the US, this did not involve a transfer of custody for the purposes of Article 5. While it was true that certain operational aspects relating to H’s detention at Camp Bucca were transferred to US forces (such as escorting him to and from the compound and guarding him elsewhere in the camp) the UK had retained authority and control over all aspects of the detention relevant to his complaints under Article 5 through using parts of the camp to detain and interrogate detainees. Thus H had been within the jurisdiction of the UK from the moment of his capture on 23 April 2003 until his release, a week or so later. However, on the facts there was no violation of Article 5 (by a majority of 13 to 4). While it could only be in cases of international armed conflict where the taking of prisoners and detention civilians who posed a threat to security were accepted features of international humanitarian law that Article 5 could be interpreted as permitting the exercise of such broad powers. Nonetheless, deprivations of liberty in those contexts still had to be lawful – meaning the detention had to comply with the rules of international humanitarian law and, most importantly, that it should be in keeping with the fundamental purposes of article 5(1), protection from arbitrariness. The UK authorities had had reason to believe that H, who was found by British troops armed and on the roof of his brother’s house, where other weapons and documents of a military intelligence value had been retrieved, might be either a person who should be detained as a prisoner of war or whose internment was necessary for imperative reasons of security, both of which provided a legitimate ground for capture and detention under the Third and Fourth Geneva Conventions. Almost immediately following his admission to Camp Bucca, he had been subject to a screening process in the form of two interviews by US and UK military intelligence officers, which had led to his being cleared for release since it was established that he was a civilian who did not pose a threat to security. The evidence pointed to his having been physically released from the Camp shortly thereafter. Against this background, it would appear that H’s capture and detention was consistent with the powers available to the UK under the Third and Fourth Geneva Conventions, and was not arbitrary. Claims under Articles 2 and 3 were rejected as manifestly ill-founded. There was no evidence to suggest that H had been ill-treated while in detention such as to give rise to an obligation under Article 3 to carry out an official investigation. Nor was there any evidence that the UK authorities were responsible in any way, directly or indirectly, for his death, which had occurred some four months after his release from Camp Bucca, in a distant part of the country not controlled by UK forces. In the absence of any evidence of the involvement of UK State agents in the death, or even of any evidence that the death occurred within territory controlled by the UK, no obligation to investigate under Article 2 could arise (Hassan v UK, App 29750/09 ECtHR (GC) 16 September).
Immigration, deportation and extradition
Parliamentary activity
The House of Lords Select Committee investigating Extradition Law continued to take evidence in October, questioning district judges and legal aid experts at the Ministry of Justice, and both the CPS and extradition solicitors to explore how decisions to pursue extradition are reached and how authorities