Administrative law from Thomson Reuters 2014

ADMINISTRATIVE LAW 2014 FROM THOMSON REUTERS With a number of important developments occurring throughout the year, leading authors in administration law, Catherine Donnelly, David Mead and Tom Tabori have offered their insight into some of the recent key issues within this practice area.

• The Charter and the Convention and the Need for Consistency • “A sense of proportion in the High Court?: R (oao Miranda) v Home Secretary” • The Charter of Fundamental Rights of the EU: The Growing Realisation

REUTERS/Bobby Yip

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THE CHARTER AND THE CONVENTION AND THE NEED FOR CONSISTENCY Catherine Donnelly

The Charter and the Convention The impact of the Charter of Fundamental Rights of the European Union (“the Charter”) on English law is of on-going interest. The Charter differs from the European Convention on Human Rights (“the ECHR”) in a number of ways, including that, first, unlike when dealing with ECHR rights under the Human Rights Act 1998 (the “1998 Act”), the courts have the power to disapply legislation which conflicts with EU human rights law. Second, the Charter enumerates a multiplicity of rights that do not have direct equivalents in the ECHR. Third, and significantly, the Charter, as primary EU law, insofar as it applies, has supremacy over the 1998 Act and the Convention. Fourth, Article 1(2) of the UK Protocol on the application of the Charter of Fundamental Rights to the UK and Poland (the “Protocol”) states: “[N]othing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.”

Notwithstanding the Protocol, in AB v Secretary of State for the Home Department [2013] EWHC 3453 (Admin), Mostyn J commented on the Court of Justice (“CJEU”) decision in NS v Secretary of State for the Home Department (C-411/10) (Unreported, 21 December 2011)—in which it had been held that that the Protocol did not indicate that the Charter had anything less than full effect in the UK—as follows (at §14):

“The constitutional significance of this decision can hardly be overstated. The Human Rights Act 1998 incorporated into our domestic law large parts, but by no means all, of the [ECHR]. Some parts were deliberately missed out by parliament. The [EU Charter] contains, I believe, all of those missing parts and a great deal more.

Notwithstanding the endeavours of our political representatives at Lisbon it would seem that the much wider Charter of Rights is now part of our domestic law.”

The CJEU and the ECtHR This development creates particular challenges where Charter rights and Convention rights overlap, and in particular, where competing interpretations of those rights have been handed down by the CJEU and the European Court of Human Rights (“”the ECtHR”). The challenge of reconciling tensions between the CJEU and the ECtHR was faced by the Court of Appeal and by the Supreme Court in its very recent judgment of 19 February 2014 in EM (Eritrea) v SSHD [2013] EWCA Civ 1336, [2013] 1 WLR 1 and [2014] UKSC 12; [2014] 2 WLR 409.

In each of the four joined cases under consideration, the claimant had sought asylum in Italy, subsequently entered the UK illegally, and made a new claim for asylum. In each case, the Home Secretary issued removal directions in accordance with the Dublin II Regulations, which ascribe responsibility for asylum claims to the country of first entry.

The claimants resisted on the basis of Article 3 of the ECHR and their equivalent Charter Rights, arguing that, in practice, Italy’s immigration system was dysfunctional and exposed them to the real risk of destitution.

The Court of Appeal and the Supreme Court A central issue in dispute was the burden on the claimants, and in particular, whether the claimants were required to establish systemic deficiencies in the asylum procedure and reception conditions of asylum seekers in Italy in order to resist return there.

According to the Convention jurisprudence (as for example, in MSS v Belgium and Greece (2011) 53 EHRR 28), while there is a presumption of compliance with ECHR rights in other Convention States, that presumption can be overridden by evidence of personal experience and “documented shortcomings” of failures in the system. Such evidence raises a triable case on whether enforced return to that country would create a real risk of exposing the claimants to inhuman or degrading treatment contrary to Article 3 ECHR. However, according to the Court of Appeal, the position adopted by the CJEU in the NS case was such that the presumption of compliance would only be overridden by proof of “true systemic deficiencies”—as opposed to “operational problems”—which meant that, as the Supreme Court put it neatly in its judgment (at [37]), where the risk of violation of Article 3 “did not arise from so-called systemic deficiencies it could not operate to prevent [the asylumseeker’s] enforced return to that country.”

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In other words, proof of systemic deficiencies was transferred from a sufficient condition of intervention to a necessary condition of intervention and without it, proof of individual risk, however grave, and whether or not arising from operational problems in the State’s system, could not prevent return under Dublin II ([2013] EWCA Civ 1336, [2013] 1 WLR 1, at [38]) Albeit uncomfortable with this approach, the Court of Appeal concluded that it was bound to follow what it regarded as the stricter approach in the NS case, with the Supreme Court observing of this decision as follows:

“ Sir Stephen Sedley said (at para 43) that, but for the fact that the decision of the decision of CJEU was binding on courts of this country, the Court of Appeal might have had to confront the problems of conflicting decisions of ECtHR and CJEU. This observation seems clearly to signify that, but for the effect of the NS case, the Court of Appeal would have come to a different conclusion from that which it felt compelled to reach.”

The interpretation was also adopted despite the fact that it, “would involve the Secretary of State in a failure to comply with the duty under s.6 of the 1998 Act not to act in a way incompatible with a convention right” ([2014] UKSC 12; [2014] 2 WLR 409, [43]).

Lord Kerr, giving judgment for the Supreme Court, resolved the conflict by interpreting the CJEU decision in light of the meaning of the ECHR right, observing (at [49]): “[o]ne must be careful to determine whether CJEU referred to systemic failures… to create a new precondition for asylum seekers who seek to have recourse to their article 3 rights.”

It concluded (at [45]), that it did not.

This conclusion required strenuous interpretation of the CJEU’s use of language, requiring the court to ascribe two separate meanings to the same term used by the CJEU in the NS case. As Lord Kerr noted (at [55}):

“ It is perhaps unfortunate that the expression ‘systemic deficiency’ was employed in two different contexts to describe what are clearly distinctly different phenomena because this creates the potential for confusion. But I believe that, even in the later context, the CJEU did not intend to stipulate that [a violation could only result from] a systemic deficiency in that country’s asylum procedures and reception conditions.”

The Court then reiterated that the standard was the ECHR standard of a “real risk” of treatment contrary to Article 3 ECHR and remitted the cases to the Administrative Court for consideration on this basis.

Tension and Reconciliation The Charter has generated a vast volume of jurisprudence before the CJEU and been the source of a large number of human rights judgments before that Court. It seems inevitable that tensions in the interpretations of rights will emerge between its jurisprudence and that of the ECtHR. The pending accession of the EU to the ECHR may assist in resolving any tensions, given that the standards of the ECtHR will operate as a minimum standard of protection to which the CJEU will be bound. However, for national courts, it seems likely that the challenge of reconciling the jurisprudence of the Charter and the Convention will continue; the CJEU and ECtHR will have to be increasingly mindful of the need for consistency.

Catherine Donnelly is a barrister at Blackstone Chambers and Lecturer of EU, Public, Human Rights and Public Procurement Law at Trinity College Dublin. She is also part of the editorial team of the 7th edition of De Smith’s Judicial Review.

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“A SENSE OF PROPORTION IN THE HIGH COURT?: R (OAO MIRANDA) v HOME SECRETARY” David Mead The claim brought against the Home Secretary by David Miranda – stopped and searched at Heathrow en route home under Schedule 7 of the Terrorism Act 2000 – rightly made the news given the obvious topicality, and heady mix, of free speech and counter-terrorism. Miranda is the partner of US journalist Glenn Greenwald, behind the release of Edward Snowden’s NSA papers, and it was thought Miranda was complicit. Most of the focus on the Administrative Court judgment ([2014] EWHC 255 Admin) has been on the proper construction of Schedule 7 and whether or not the purpose of the stop fell properly within it. Less noticed have been the few paragraphs by Laws LJ on proportionality, specifically his seeming rejection of the restatement of the principle by Lord Sumption in Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39.

Proportionality, as a gauge of whether a government decision is lawful, was rejected as a separate head of review in GCHQ but entered domestic law, of necessity, under the auspices of the HRA. When Convention rights are qualified – as most are – a public authority, such as the minister, only acts incompatibly with their duty under s.6 if the decision they take is disproportionate. It is not per se unlawful to restrict free speech or privacy but it is where that action is disproportionate – shorthand for the strict wording of the ECHR “not necessary in a democratic society”.

Clearly, proportionality is different to – and stricter than – rationality: all rational decision makers might take decisions that are not proportionate, using a sledgehammer to crack a nut in more common parlance. The question was what more did a proportionality challenge bring? The fear was that it might require judges to immerse themselves much more in assessing the merits of the decision under attack – something avowedly avoided when the essence of a claim was (ir)rationality. Though this latter does go to the substance, it does so only marginally: judges are simply being asked whether decision A was one that any other reasonable decision-maker could have reached – was it within the band of reasonable responses? – not was decision B “less intrusive” or “ less restrictive” of rights.

That would require an assessment, a comparison of the relative qualities of decisions A and B – and for a judge to reach a view.

After a lukewarm start in cases such as R (Mahmood) v SoS Home Dept [2001] 1 WLR 840 CA which broadly equated the two grounds, the first real leap towards proportionality as a fully-fledged and separate head of review came, as is well-known, in De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, 80. Lord Clyde put it thus. A court should ask itself whether (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective. That formulation by the Privy Council was adopted by Lord Steyn in the House of Lords in Daly [2001] 2 AC 532. However, in Canada under the general justifications clause in Section 1 of the Charter under what is known as the Oakes test (1986 1 SCR 103), the courts have gone further and required decision-makers not only minimally to impair the right but also to take decisions that properly balance the individual’s private interest in having the right against the communal gains from restricting it. It was this, a fourth element to the test, that was added first in Huang ([2007] UKHL 11) and then in Bank Mellat. There Lord Sumption talks of “whether... a fair balance has been struck between the rights of the individual and the interests of the community”.

It is this element that most troubled Laws LJ in Miranda (at [40]).

I think it needs to be approached with some care. It appears to require the court, in a case where the impugned measure passes muster on points (i) – (iii), to decide whether the measure, though it has a justified purpose and is no more intrusive than necessary, is nevertheless offensive because it fails to strike the right balance between private right and public interest; and the court is the judge of where the balance should lie. I think there is real difficulty in distinguishing this from a political question to be decided by the elected arm of government.

In his Public Law for Everyone blog, Mark Elliott has welcomed the decision as “it properly appreciates the diversity of judicial tasks which applying the proportionality test calls for”. While Laws LJ was right to note the possible shift in power, he might be falsely worried. As both Merris Amos ([2007] EHRLR 679) and Tom Hickman (Public Law after the Human Rights Act (2010) chap 6) have asserted, this is not asking judges to assess the merits – or balance – of government policy on say counter-terrorism – its desirability, its efficacy, its benefit – but the application of that

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policy to an individual on individual facts. That is a very different and lesser task. Mark Elliott’s assertion of the “underlying incommensurability” inherent in the fair balance test is, of course, one that can be made of many judicial tasks outside the context purely of judicial review. Secondly, of course should judges feel the matter veers too close towards the political, they can pray in aid the need to defer; this counters the shift but does not gainsay that such an assessment is properly required. Thirdly, it would be hard to reconcile the downplaying of balance domestically with Strasbourg case-law which puts it centre stage: “inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights” (Soering v UK (1989) 1 EHRR 439 [89]). Equally, it runs the risk of creating different schemes for ECHR and EU Law where fair balance, developed from the German constitutional framework, is a long-standing principle. Furthermore, rendering proportionality a less comprehensive vouchsafe of the legitimacy of government action – by confining it simply to necessity, the less intrusive test – might risk jeopardising what Etienne Mureinik has called the culture of justification that has accompanied the shift to a framework of positive rights. Last, the reticence to become immersed in political question seems to sit uneasily with what I have called ([2012] PL 61) the aggrandising approach of the courts and the “outcomes is all” approach that underpins cases such as Denbigh High School ([2006] UKHL 15) wherein the courts, not elected councils, are the sole arbiters of proportionality. Is Miranda a case of giving with one hand while taking with the other?

David Mead is Professor of UK Human Rights Law at University of East Anglia. He is also Current Survey Editor for Public Law.

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THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EU: THE GROWING REALISATION Tom Tabori, Thirty Nine Essex Street

Introduction Article 6(1) of the Treaty on European Union (“TEU”) confirmed that the Charter of Fundamental Rights of the EU (“the Charter”) has the same legal value as the EU Treaties. Across three recent cases, this article charts the growing realisation of the significance and scope of the Charter.

(1) R (NS) v Secretary of State for the Home Department (C-411/10) [2013] QB 102 Annexed to the Treaty on the Functioning of the EU (TFEU) is Protocol 30, the UK’s opt-out to the Charter. Article 1(1) of Protocol 30 states that the Charter does not extend the ability of the CJEU or any UK court to find that UK law is inconsistent with the Charter.

Nonetheless, the CJEU ruled in NS that Protocol 30 did not prevent the Charter from being applicable to the UK. The recitals to the Protocol showed that the Protocol did not exempt the UK but explained the application of the Charter.

The Justice Secretary expressed surprise that the Charter was applicable in certain contexts in the UK. This is itself surprising, given that the point was conceded by the Secretary of State in Saeedi, which became NS in the CJEU [R (NS) v Secretary of State for the Home Department (Reference to ECJ) [2010] EWCA Civ 990; [2010] Eq. L.R. 183, at 7].

(2) Benkharbouche v Embassy of Sudan [2014] 1 C.M.L.R. 40 Benkharbouche was the first time that the Charter has been used to disapply domestic legislation. It was also the first time that domestic legislation had been disapplied by English courts, in any context, in a dispute between private litigants.

The domestic legislation in question was ss.4 and 16 of the State Immunity Act 1978 (“the 1978 Act”), which prevented the employees of two embassies in London from bringing discrimination and harassment claims against their employers. The Employment Appeals Tribunal (“EAT”) acknowledged that the 1978 Act was capable of breaching the right of access to a court under art.6 ECHR. However, the EAT is not empowered to issue a declaration of incompatibility under s.4 of the Human Rights Act (“HRA”) and held that it could read down ss.4 and 16 under s.3 HRA because this would completely change their substance.

The EAT also found ss.4 and 16 conflicted with employees’ rights to an effective remedy and a fair trial under art.47 of the Charter. There was no constraint on the remedy for that incompatibility, such as imbues ss.3 and 4 HRA. The claims were within the material scope of EU law. Therefore, ss.4 and 16 had to be disapplied insofar as they were inconsistent with EU law.

The appeal to the Court of Appeal will take place in the week commencing 24 November 2014. The prospects for that appeal appeared strong after a decision by the CJEU that domestic legislation implementing EU law but contradicting the Charter does not have to be disapplied [Association de médiation sociale v Union locale des syndicats CGT (Case C-176/12) [2014] ECR 0 (“AMS”)].

However, the first question formulated by the referring court in AMS was whether the Charter could be invoked in a dispute between private individuals. The CJEU answered that the Charter could not be so invoked. Therefore, the CJEU did not get to the issue of whether the national legislative provision was precluded where it contradicts EU law.

(3) ZZ (France) v SSHD (C-300/11) [2013] QB 1136 ZZ confirmed the suggestion from Benkharbouche that the Charter offers broader procedural protection than the ECHR. ZZ was refused admission to the UK on grounds of public security. He had dual Algerian and French nationality. The decision to refuse him admission therefore restricted his EU citizenship rights of freedom of movement.

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The Secretary of State certified that the decision was taken in reliance on information that should not be made public in the interests of national security. Therefore, ZZ’s appeal lay to the Special Immigration Appeals Commission (SIAC).

SIAC heard the secret evidence via its closed material procedure and dismissed the appeal.

ZZ appealed on the ground that the SIAC proceedings had not disclosed enough of the case against him to satisfy art.47 of the Charter. The Court of Appeal referred the question of EU law to the CJEU. The CJEU held that art.47 requires the relevant person to be informed, in any event, of the essence of those grounds in a manner which takes due account of the necessary confidentiality of the evidence [NS at 69].

This standard had already been set in relation to art.6 ECHR [F v Secretary of State for the Home Department [2009] UKHL 28]. Yet art.6 ECHR does not apply to immigration proceedings. Decisions whether to grant leave to enter or remain do not determine a civil right [Maaouia v France [2000] 33 EHRR 1037]. ZZ thereby extends the principle of natural justice beyond both domestic public law and beyond the ECHR. Interpreting the preliminary ruling, the Court of Appeal held that ZZ had been not given the minimum level of disclosure that EU law requires.

The government is in the process of appealing, but it is difficult to see how the answer formulated by the CJEU could have been applied in any other way.

Conclusion The government’s ongoing audit of what the EU does and how it affects the UK (“Review of the Balance of Competences”) includes a review of the EU’s competence and action in the field of fundamental rights. The results may include a recommendation that fundamental rights are amongst the competences that should be reclaimed as part of a renegotiation of the UK’s terms of membership of the EU. This is a more complicated proposition than the oft-threatened step of leaving the Council of Europe and the ECHR. Hence, the Charter remains a more obdurate target than the ECHR. Meanwhile, the significance and scope of the Charter is being realised with increased frequency, in relation to diverse aspects of EU and therefore domestic legislation.

Tom Tabori is a barrister at Thirty Nine Essex Street chambers focusing on commercial and construction, financial services and regulation, public and human rights, regulatory and disciplinary, environmental and planning law. Tom is also a contributor to the Administrative Court Digest.

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