|David Miranda (Credit: The Guardian)|
I do not intend in this blogpost to go through the particulars of all of the five grounds of appeal. Others have done this better than I can do justice to. However, I do wish to comment on what has been described as an "inconsistency" in Lord Dyson's judgment handed down today, raised by Carl Gardner in his piece here.
The main finding against the government was based on the conclusion that, for want of adequate safeguards to prevent arbitrary use, Schedule 7's detention and search powers fail the test that must be satisfied to comply with the European Convention on Human Rights. As such a "declarator of incompatibility" under s4 of the Human Rights Act was issued. In particular, s4(2) provides that:
"If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility."The effect of a declarator is not to invalidate, discontinue or limit the enforcement of primary legislation (s4(6)(a)). On the contrary, it has full force and effect.
It is not unlawful in a specific instance for a public body to act incompatibly with the ECHR where they are "acting so as to give effect to or enforce" "one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights". This is very clearly set-out in s6(2)(b) of the Human Rights Act.
This means that a piece of legislation can violate the ECHR, but it is not competent for a British court to make a finding of illegality in respect of a public body acting incompatibly, where that illegality results, and only results, from the incompatibility of the primary legislation that it is enforcing. Obviously if, for example, secondary legislation was incompatible with the Convention for additional reasons and/or a public body supplementarily acted in a manner which was incompatible with the Convention, then a British court could strike down that secondary legislation and find the actions of the public body to be unlawful. The appropriate remedy in that instance would not have to be a declarator of incompatibility.
Acting compatibly with the ECHR
There are three criteria that must be satisfied if an interference with a qualified Convention right is to be considered to be lawful, and therefore escape any risk of this declarator being made. An interference must be (a) in pursuit of a legitimate aim (b) prescribed by law and (c) necessary in a democratic society.
Prescribed by Law
The importance for our purposes is the relationship between (b) prescribed by law and (c) necessary in a democratic society. The former is a standard that requires, as Carl puts it:
"any law such as Schedule 7 must be accessible and its operation sufficiently foreseeable so that people subject to it can regulate their conduct; and it must contain sufficient safeguards to avoid its arbitrary exercise"Necessary in a Democratic Society
The latter constitutes a proportionality test, the particulars of which have been expressed on several occasions by the UK Supreme Court. One such exposition is given in the Bank Mellat case, where Lord Reed sets out a 4-stage test:
"It is necessary to determine
(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right,
(2) whether the measure is rationally connected to the objective,
(3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and
(4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter…. In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure."
Third Ground of Appeal
The third ground of appeal in the Miranda case maintained that :
"the use of Schedule 7 power against Mr Miranda was an unjustified and disproportionate interference with his right to freedom of expression guaranteed by article 10 of the Convention"This ground is solely concerned with whether the interference with David Miranda's Article 10 right was proportionate. It is not concerned with whether it was in the pursuit of a legitimate aim or prescribed by law. It is, moreover, concerned with the particular. What the court was being asked to determine there was whether the test set-out by Lord Reed in Bank Mellat had been satisfied. Lord Dyson concludes :
"The compelling national security interests clearly outweighed Mr Miranda’s article 10 rights on the facts of this case. In reaching this conclusion, I also bear in mind the considerable deference that the court should accord to a decision to invoke the Schedule 7 power in a case of this kind. It follows that, subject to the point raised by the fourth ground of appeal, the decision to exercise the power was proportionate on the facts of this case"Clearly these remarks are confined to the question of proportionality, and not to whether it is prescribed by law.
Fifth Ground of Appeal
The fifth ground of appeal, which was ultimately successful, maintained that Schedule 7 of the Terrorism Act 2000 was "incompatible" with Art 10 of the ECHR. The conclusion reached was that Schedule 7 :
"Is not subject to adequate safeguards against its arbitrary exercise"And is therefore not prescribed by law.
Carl argues that it is inconsistent, on the one hand, for Lord Dyson to make his finding in respect of the fifth ground of appeal, but not to have found that the third ground of appeal also succeeded. As he puts it (emphasis added):
"If Lord Dyson is right that judicial review is inadequate, and cannot sufficiently protect journalistic material, then it cannot protect it in this case; Lord Dyson’s own ruling that questioning Miranda was lawful must be inadequate to satisfy human rights law. Without prior independent authorisation Miranda’s questioning can’t have been “prescribed by law”, and so must have breached the article 10 right to free expression. Lord Dyson could not possibly have “cured” that breach today."This is a perfectly correct statement of law from the perspective of the Strasbourg court. They couldn't care less if the failure to be prescribed by law arises from the primary legislation itself or from the particular nature of the action purporting to be taken under it. The applicant is suing the state as a whole, not a particular branch of it. If this goes to Strasbourg, and they agree with Lord Dyson that Schedule 7 is incompatible with Article 10(2) for want of being legally prescribed, they will make a declaration to that effect and award damages in just satisfaction.
But for a UK court, the distinction is extremely important. Indeed, it is precisely the reason that the third ground of appeal was framed as it was, in terms of proportionality alone, rather than in terms of compatibility with the Convention. The third ground of appeal concerned, in reality, not just whether the interference was proportionate, but also, by inference, whether the public body exercising the Schedule 7 powers could avail itself of s6(2) of the Human Rights Act to escape illegality completely.
This is important from Miranda's perspective. The declarator does not entitle him to any additional form of redress. A finding that the specific application of the law, but not the law itself, was disproportionate, would likely entitle him to some sort of pecuniary redress. Paradoxically, were he to prove that Schedule 7 was in and of itself disproportionate, he would be enabling the government to grant a broader immunity from compliance with the Human Rights Act to those exercising powers under Schedule 7, as it would, much like the prescribed by law failing, fall under the terms of a declarator of incompatibility.
If the specific instance of the exercise of this power was disproportionate (in the Bank Mellat sense), it would not have mattered whether or not the provision was prescribed by law. The public body would in any case have acted illegally in the specific instance. It would have been no "defence" to say that they were "acting so as to give effect to or enforce" "one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights". The primary legislation would not have authorised them to act in that way. With respect to proportionality, the provisions can be, and in Miranda's case were, exercised in a manner which is compatible with the Convention rights. Any body which exercises that power in a way that is disproportionate is going beyond what Parliament intended.
In response to this, I'm sure Carl would still respond with a combination of these sentiments:
"Legality is a logically prior requirement: only if a power is “prescribed by law” can its use be proportionate and so rights-compliant."
"The concept under the Human Rights Act 1998 that legislation may in itself be incompatible with a Convention right is a radical one: it means that the legislation necessarily and systematically causes breaches of human rights. Conversely, if not every use of a piece of legislation breaches human rights, then it is compatible with those rights."
"The Human Rights Act forces judges to make a choice. Either a piece of legislation is in principle compatible with human rights, in which case its use in particular cases may still breach rights (and so be unlawful); or it’s incompatible with those rights in principle, in which case its use in every case will breach rights (and, in an apparent paradox, will therefore be lawful). You can’t have it both ways. You can’t hold the questioning of David Miranda compatible with human rights if you also think the legislation it was done under is not."The problem here is that the first of these three quotes is not actually correct. In many instances, legality may operate in that way, and there may well be some overlap on the facts between the threshold to be "prescribed by law" and the arguments made in relation to parts 3 and 4 of the Bank Mellat proportionality test. But it does not follow that all exercises of a power are disproportionate if none of them are prescribed by law. Some of them may be proportionate. This may not save you in front of the Strasbourg court, but it does save you under a British court enforcing the Human Rights Act, provided that you can show s6(2)(b) applies.
As such, even if a British court concludes that "the [primary] legislation necessarily and systemically causes breaches of human rights" that does not mean that it can find a wholly derivative and otherwise lawful action to be illegal. Where the second and third quote breaks down here is that Lord Dyson did not say anything that contradicts Carl's "converse" inference. The specific use of Schedule 7 against Miranda was not prescribed by law, but British courts are compelled not to do anything about it where it is the direct, exclusive and necessary consequence of enforcing an incompatible primary statute that was incompatible by, and only by, reason of not prescribing the interference by law.
Whether you like it or not, this is how the Human Rights Act was formulated, and this is specifically how declarators of incompatibility are supposed to work. I suspect Carl and I disagree quite drastically as to the trajectory our domestic human rights framework should follow were we to move away from this muddy compromise.